Opinion
No. 10–P–1970.
2013-02-26
COMMONWEALTH v. Demetrios VOSSOS.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Demetrios Vossos, was convicted after a jury trial of assault by means of a dangerous weapon, arising out of an incident that occurred at the Forest Hills MBTA station (station) in the Jamaica Plain neighborhood of Boston. Prior to trial, the judge ruled that the Commonwealth would be permitted to impeach the defendant's credibility with a series of similar prior convictions. The defendant objected to the ruling, and did not testify. The defendant raises several issues on appeal, but we find it necessary to address only one.
For the reasons that follow, we are constrained to reverse the conviction.
We assume that if this case is retried, counsel will comply with any orders of the judge regarding the introduction of evidence and the content of the opening and closing arguments.
Background. On May 25, 2010, the victim, a sixth grader, was following his routine of commuting to and from school by MBTA buses which traveled to and from the station. The station was filled with commuters and there were police officers present. The victim testified that while inside the station the defendant spoke to him and said, “Where's my drug money.” The victim also testified that the defendant had a knife and pointed it at him. There was evidence that the victim told an MBTA police officer that he knew the perpetrator and that his name was “Demetrios.” The following day, the victim told another MBTA police officer that “Demetrois” was in the station, and the defendant was promptly arrested. The defense theory at trial was misidentification. The defendant did not testify. Discussion. a. The motion in limine. The defendant filed a pretrial motion in limine to exclude from evidence any prior bad acts including prior criminal convictions on grounds that they would have a chilling effect on his right to testify. The Commonwealth sought a ruling which would permit it to impeach the defendant's credibility with thirteen prior convictions. These convictions were obtained in nine separate cases as follows:
+--------------------------------------------------------------+ ¦Docket No. ¦Offense ¦ +-------------+------------------------------------------------¦ ¦0906 CR 827A ¦Larceny Over $250 ¦ +-------------+------------------------------------------------¦ ¦0906 CR 1020A¦Malicious Destruction of Property ¦ +-------------+------------------------------------------------¦ ¦0806 CR 1455C¦Assault and Battery on a Police Officer ¦ +-------------+------------------------------------------------¦ ¦0806 CR 1455D¦Assault and Battery on a Police Officer ¦ +-------------+------------------------------------------------¦ ¦0706 CR 1834A¦Assault and Battery, Dangerous Weapon, Shod Foot¦ +-------------+------------------------------------------------¦ ¦0706 CR 1834B¦Assault and Battery ¦ +-------------+------------------------------------------------¦ ¦0706 CR 0839A¦Possession Class B Controlled Substance ¦ +-------------+------------------------------------------------¦ ¦0706 CR 0778A¦Possession Class D Controlled Substance ¦ +-------------+------------------------------------------------¦ ¦0606 CR 1132A¦Disorderly Conduct ¦ +-------------+------------------------------------------------¦ ¦0606 CR 0707A¦Disorderly Conduct ¦ +-------------+------------------------------------------------¦ ¦0606 CR 0394A¦Disturbing the Peace ¦ +-------------+------------------------------------------------¦ ¦0606 CR 0394B¦Larceny from the Person ¦ +-------------+------------------------------------------------¦ ¦0606 CR 0394C¦Assault and Battery ¦ +--------------------------------------------------------------+
Of these thirteen convictions, three convictions (docket numbers 0906 CR 1020A, 0606 CR 0707A, and 0606 CR 394A) do not qualify for impeachment under G.L. c. 233, § 21, because they involve dispositions in which the defendant was placed on straight probation without a sentence. See Commonwealth v. Stewart, 422 Mass. 385, 387 (1996). See also Mass. G. Evid. § 609 Note, at 175 (2012). Another conviction (docket number 0906 CR 827A) did qualify for use for impeachment, but it was excluded on the basis of an incorrect understanding of the law (a felony conviction in which no sentence was imposed, unlike a misdemeanor, is nonetheless available for impeachment). See G.L. c. 233, § 21. See also Mass. G. Evid. § 609(a)(2). The judge ruled that the six convictions involving crimes against the person could be used to impeach the defendant's credibility. The judge excluded the remaining convictions that qualified for use under G.L. c. 233, § 21 (possession of a Class D controlled substance and possession of a Class B controlled substance) to avoid the “cumulative [effect of] piling on so to speak.” The judge noted the defendant's objection.
b. Governing legal framework. In exercising discretion under G.L. c. 233, § 21, judges must consider the following factors: (1) whether the prior convictions are similar to the crime with which the defendant is charged, Commonwealth v. Drumgold, 423 Mass. 230, 250 (1996), (2) whether the prior convictions are for crimes involving truthfulness, Commonwealth v. Maguire, 392 Mass. 466, 469 (1984), and (3) whether there are other prior convictions besides those that are similar that could be used for impeachment. Commonwealth v. Whitman, 416 Mass. 90, 95 (1993). See Commonwealth v. Brown, 451 Mass. 200, 211 (2008) (Botsford, J., dissenting).
Two other factors (judge gives a limiting instruction and prosecutor refrains from referring to the prior convictions in closing argument) have no application in a case such as this in which the defendant does not testify. See Commonwealth v. Little, 453 Mass. 766, 773 n. 4 (2009).
When the Commonwealth seeks to impeach the defendant with prior criminal convictions that are similar to the crime charged, “[t]he judge must balance the danger of unfair prejudice ... against the probative value of the evidence for the purpose of impeachment.” Commonwealth v. Drumgold, 423 Mass. at 249. Here, as in Commonwealth v. Little, 453 Mass. 773–774 (2009), the prior convictions made available by the judge for the Commonwealth to use at trial for impeachment purposes are similar to the crime with which the defendant was charged. See Commonwealth v. Ruiz, 22 Mass.App.Ct. 297, 302 (1986); Commonwealth v. Roucoulet, 22 Mass.App.Ct. 603, 606 (1986). The judge's decision to admit these six convictions for impeachment in a case charging an aggravated assault in which there was a lack of any corroborative evidence apart from the testimony of the victim, and in which there were other prior convictions for drug offenses and property offenses that could have been used instead, was an abuse of discretion.
In making decisions about the use of prior convictions, attention must be given to the “higher attendant risk that [the defendant] might improperly be convicted based on his reputation or his propensity to commit a crime.” Commonwealth v. Little, 453 Mass. at 774.
This court has observed that our review of a judge's discretion in applying the balancing test is consistent with the review of decisions by Federal judges under what is now Fed.R.Evid. 609(a)(1)(B). See Commonwealth v. Gonzalez, 22 Mass.App.Ct. 274, 277 (1986). It is therefore instructive to consider that it is “good practice for the trier to make on-the-record findings as to the probative value/prejudicial effect balance.” United States v.. De La Cruz, 902 F.2d 121, 123 (1st Cir.1990). See United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976) (“In the future, to avoid the unnecessary raising of the issue of whether the judge has meaningfully invoked his discretion under Rule 609, we urge trial judges to make such determinations after a hearing on the record, as the trial judge did in the instant case, and to explicitly find that the prejudicial effect of the evidence to the defendant will be outweighed by its probative value”).
Conclusion. The probative value of prior criminal convictions to impeach the credibility of the defendant or a witness is proportional to the convictions' relationship to truthfulness. “[T]here is a diminishing scale of probative value, on the issue of credibility, from deliberate perjury to impulsive assault. So also the law accepts that prejudice mounts as the prior crime resembles more and more the offense being tried. The case for admission is strong when probative value is high and prejudicial effect low; weak, when the contrary is true.” Commonwealth v. Ruiz, 22 Mass.App.Ct. at 303. In this case, the judge's ruling was outside the range of permissible choices, and a new trial is therefore required.
Judgment reversed.
Verdict set aside.