COMMONWEALTH vs. KEVIN G. YOUNG.

GREANEY, C.J. On an indictment charging aggravated rape, a jury in the Superior Court convicted the defendant of rape. He was sentenced to a term of imprisionment at M.C.I., Cedar Junction. In this appeal from the judgment of conviction and the denial of his motion for a new trial, [Note 1] the defendant argues that the trial judge erred in allowing him to be impeached by a prior disposition of an unarmed robbery charge in the Superior Court, which the prosecutor characterized as a prior conviction.

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1. Before the defendant took the witness stand, the defendant's trial counsel moved, by means of a motion in limine, for a ruling on the prosecutor's intention to impeach the defendant with the prior disposition in the Superior Court of an unarmed robbery charge. [Note 2] That disposition occurred in 1979, when the defendant was a sixteen-year-old juvenile. [Note 3] The juvenile complaint that initiated the unarmed robbery charge was transferred, pursuant to the provisions of G.L. c. 119, § 61, as appearing in St.1975, c. 840, § 1, to the Superior Court, where it proceeded by way of an indictment. The certified copy of the indictment of the unarmed robbery charge presented to the judge by the prosecutor contained the following endorsement as to the disposition of the charge:

"11-28-79: Retracted and pleads G., Committed to D.Y.S. secured treatment facility at Chelmsford." [Note 4] At the hearing on the motion in limine, the prosecutor argued that the endorsement reflected a plea of guilty by the defendant, which under the last sentence of G.L. c. 233, § 21, Second, [Note 5]

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constituted a conviction which could be used (subject to the exercise of the judge's discretion) to impeach the defendant's credibility when he took the witness stand. The defendant's counsel argued that the endorsement reflected disposition of the charge pursuant to the second sentence of G.L. c. 119, § 83, [Note 6] and as such could not be used to impeach credibility. The judge rejected the argument made by the defendant's counsel, denied the motion in limine, and, over proper objection, allowed the impeachment sought by the prosecutor.

2. The transfer of the 1979 unarmed robbery charge from the juvenile session of a District Court to the Superior Court exposed the defendant, upon his conviction, to the possibility of sentencing as an adult, as provided for in the first sentence of G.L. c. 119, § 83, see note 6, supra. However, because the defendant was sixteen when the unarmed robbery charge was brought before the Superior Court, the judge who dealt with the merits of the charge possessed the authority, pursuant to the second sentence of G.L. c. 119, § 83, see note 6, supra, to dispose of it by means of the same disposition as could have been made by the juvenile session of the District Court where the charge originated. If the judge chose the latter

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course, the resulting disposition could not thereafter be used for impeachment purposes because the second sentence of G.L. c. 119, § 83, makes clear that such a disposition is "in lieu of a judgment of conviction and sentence." The absence of a "judgment of conviction" removes the key foundation requirement for impeachment under G.L. c. 233, § 21, Second. See also G.L. c. 119, § 60.

The disposition of the 1979 unarmed robbery charge noted on the indictment could be considered ambiguous. On one hand, the words "[r]etracted and pleads G.", may signify the entry by the defendant of a guilty plea in the traditional sense. On the other hand, the disposition of the charge by the direct commitment of the defendant, who was then sixteen years old, to a treatment facility of the Department of Youth Services appears to be a disposition imposed under the second sentence of G.L. c. 119, § 83. Such a disposition would be in accordance with the provisions of the fourth paragraph of G.L. c. 119, § 58, as amended through St.1973, c. 1073, § 15, which permits a Juvenile Court or a District Court to "commit [a] ... delinquent child to the department of youth services." The absence of any indication in the disposition that the defendant's purported guilty plea on the unarmed robbery charge was accepted by the judge tends to confirm the conclusion that he declined to accept the plea. Additionally, the language committing the defendant to a facility of the Department of Youth Services bespeaks his adjudication as a delinquent child. [Note 7] We conclude that this interpretation, which removes any doubt

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about the legality of the sentence imposed on the unarmed robbery charge, [Note 8] appears to be the more plausible. The judge erred in allowing the defendant's impeachment by means of the disposition of the 1979 unarmed robbery charge.

3. The Commonwealth argues that the error was harmless beyond a reasonable doubt because of compelling evidence of the defendant's guilt. We should set aside the conviction unless we are "sure that the error did not influence the jury, or had but very slight effect." Kotteakos v. United States, 328 U.S. 750, 764 (1946). See Commonwealth v. Gilday, 382 Mass. 166, 178 (1980); Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445-446 (1983).

We have no such certainty here. The defendant admitted to having intercourse with the victim but testified that it was consensual. Although his testimony could have been viewed by the jury with skepticism, he would have been entitled to an acquittal had they found his testimony sufficient to create a reasonable doubt about the victim's credibility. "Credibility is for the jury, not for appellate courts. We will not substitute our view of a witness's credibility for that of the jury." Commonwealth v. Ford, 397 Mass. 298, 301-302 (1986). Moreover, impeachment of a defendant's credibility by means of his prior conviction of a violent crime is always subject to possible misconstruction by a jury, who might improperly consider the impeachment as substantive evidence of guilt, notwithstanding a limiting instruction. The potential risk of jury misuse could have been enhanced in this case by the judge's inclusion in his limiting instruction, given when the defendant was on the witness stand, of the history at early English law of impeachment by prior conviction. Further, the fact that the defendant was a sixteen-year-old juvenile when he was before the Superior Court on the unarmed robbery charge could have depicted him in the eyes of the jury as a youth who could not

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be rehabilitated, further magnifying the risk that they might give improper effect to the prior disposition. "Because the decisive ... issue at trial was witness credibility ... we cannot say 'with fair assurance' that the improperly admitted evidence did not have a significant impact on the jury's decision." Commonwealth v. Ford, 397 Mass. at 302. As a consequence, a new trial is required. [Note 9]

The judgment of conviction of rape is reversed, and the verdict is set aside.

So ordered.