Opinion
13-P-672
04-15-2014
COMMONWEALTH v. RICHARD W. PIERCE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a conviction, after a jury trial in the Brockton District Court, for violation of the domestic abuse prevention law, G. L. c. 209A, § 7. He contends that the judge erred in three respects: (1) by permitting the Commonwealth to impeach his credibility with prior convictions of crime, (2) in refusing to grant a mistrial, and (3) in ordering a sentence based on improper factors. We affirm the judgment.
He was acquitted of a charge of threatening to commit a crime. G. L. c. 275, § 2.
The sentence ordered by the judge was two years in a house of correction, with six months to serve, and the balance suspended and the defendant to be placed on probation for two years, with special conditions.
Impeachment by prior conviction. Prior to the commencement of trial, the Commonwealth sought leave, by a motion in limine, to use two prior convictions should the defendant testify. In particular, the Commonwealth wanted to use the defendant's 2006 convictions for unlawful distribution of a class B drug, and of distributing the drugs in a school zone. The defendant opposed the intended use of these convictions by a cross motion in limine, since they did not implicate truthfulness. He also argued that admission of the conviction could prejudice the defendant in the eyes of the jury and influence them to believe that the defendant was more likely guilty, a prejudice that would outweigh the probative value of admitting the convictions in evidence. Following the judge's allowance of the Commonwealth's motion, and denial of the defendant's, trial counsel sought to lessen the impact of this information by eliciting it during his direct examination of the defendant. While we recognize the strategic implications of such a step, it nonetheless fails to preserve the claim of error. See Commonwealth v. Little, 453 Mass. 766, 773 (2009), quoting from Commonwealth v. Whelton, 428 Mass. 24, 25 (1998) ('[I]t is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at trial').
We note that in Commonwealth v. Brown, 451 Mass. 200, 204-206 (2008), the Supreme Judicial Court also addressed a defendant's challenge to the admission of his prior convictions after the grant of the Commonwealth's motion in limine. Like the defendant in this case, the defendant in Brown testified about the prior convictions on direct 'in an effort to blunt the impact of their introduction on cross-examination.' Id. at 202 n.1. However, the court did not address whether the defendant had properly preserved the issue; instead the court stated that '[b]ecause we conclude that there is no error, we need not consider whether the defendant's objection was preserved.' Id. at 204 n.3.
Even if the claim of error was properly preserved, it is without merit. Pursuant to G. L. c. 233, §21, the prior convictions of a witness, including the defendant, are admissible for impeachment purposes. 'Prior convictions may be introduced in the discretion of the judge, who weighs the danger of unfair prejudice that might result from the admission of such evidence against its probative value for impeachment purposes.' Commonwealth v. Brown, 451 Mass. 200, 202 (2008). It has long been settled that such use does not depend upon convictions that bear directly upon truthfulness or honesty, as the defendant contends. The only qualification that has been judicially imposed upon the statute is that the judge must exercise discretion to ensure that the prior convictions are not so similar to the offense for which the defendant is on trial. This circumstance is viewed as overly prejudicial because it may cause the jury to improperly consider the defendant's propensity to commit the charged crime. See Commonwealth v. Chase, 372 Mass. 736, 750 (1977) (a defendant might 'be treated unfairly, when evidence is admitted of a defendant's prior conviction of a similar crime, particularly a crime not reflecting previous untruthfulness'). While a crime reflecting 'previous untruthfulness' might well be permissible even if it is substantially similar to the charged offense, its converse, on which the defendant mistakenly relies, does not follow. A prior conviction that is dissimilar to the charged crime is not required to reflect previous untruthfulness. The judge properly exercised her discretion to permit the use of these convictions. See Commonwealth v. Preston, 27 Mass. App. Ct. 16, 23 (1989) ('It is at least difficult, if not impossible, to show an abuse of discretion in the absence of a 'substantial similarity' between the offenses being tried and the prior convictions '). Motion for mistrial. Following the victim's testimony that she told police that she had a 'permanent' restraining order, and upon objection by defense counsel, the judge instructed the jury they could not consider the victim's testimony regarding the duration of the restraining order. The judge emphasized that the expiration of the order was immaterial and simply not relevant to the case. 'Jurors are expected to follow instructions to disregard matters withdrawn from their consideration.' Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997), quoting from Commonwealth v. Cameron, 385 Mass. 660, 668 (1982). Moreover, prompt curative instructions are 'an adequate means to correct any error and to remedy any prejudice to the defendant.' Commonwealth v. Mullane, 445 Mass. 702, 711 (2006). See Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005). We discern no abuse of discretion in the denial of the defendant's motion for a mistrial.
Sentencing. The defendant contends that the sentence ordered by the judge was influenced by improper factors and he must, therefore, be resentenced by another judge. In particular, the defendant contends that the judge's inquiry into the underlying circumstances which gave rise to the abuse prevention order demonstrates her reliance in sentencing the defendant upon factors for which he was neither charged nor convicted.
We note, first, that the sentence was well within that permitted by the governing statute, and second, that the sentence was less than that recommended by the prosecutor. The prosecutor's recommendation was for the defendant to be sentenced to two and one-half years in a house of correction, with eighteen months to serve, and the balance suspended with probation for three years, with conditions.
We are not persuaded that the judge relied on the history of the issuance of the victim's 2005 restraining order as recited by the prosecutor in ordering this sentence. After the prosecutor gave a summary of the victim's 2005 affidavit, the defense attorney informed the judge that the defendant was neither charged with nor convicted of these unproved allegations; we view the judge's acknowledgement that followed as her agreement with counsel's cautionary reminder. More significant in our view is the defendant's prior sentence of two years incarceration for the drug offenses, which is the factor that was most heavily relied upon by the prosecutor in making the recommendation and, implicitly, by the judge.
'The court: 'He was never charged with anything relative to --'
[Trial counsel]: 'As far as I know he was never charged with anything mentioned in that affidavit.'
The court: 'Okay.'
[Prosecutor]: 'He was never charged with -- the defense said any violations prior to this time although [the victim] has told us that there was contact prior to the charged conduct here.'
The court: 'Okay, thank you. Okay. All right.'
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Judgment affirmed.
By the Court (Kantrowitz, Berry & Fecteau, JJ.),