COMMONWEALTH vs. FRANCISCO GONZALEZ.

WARNER, J. After separate trials, see G. L. c. 278, Section 11A, the defendant was found guilty by a Superior Court jury of possession of heroin with intent to distribute (G. L. c. 94C, Section 32[a]) and of having been convicted of the same offense on one or more prior occasions (G. L. c. 94C, Section 32[b], as appearing in St. 1982, c. 650, Section 6). On appeal, the defendant challenges the sufficiency of the indictment on the latter charge and, as to the former charge, certain of the judge's rulings, portions of the prosecutor's closing argument, and the judge's instructions to the jury. Finding no error, we affirm the judgments.

1. The denial of the defendant's motion to exclude evidence of his prior criminal convictions. The defendant filed a motion in limine seeking to exclude the admission for impeachment purposes of the defendant's fourteen prior criminal convictions. In so doing, the defendant followed the suggestion that a ruling on such questions should be sought at an early time. See Commonwealth v. Diaz, 383 Mass. 73, 81-82 (1981), [Note 1] and cases

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cited. The defendant's particular concern was with prior convictions for the same or similar offenses as the primary crime which was currently being charged; the defendant had been convicted once of illegal possession of narcotic drugs, twice of illegal possession of heroin, once of possession of heroin with intent to sell, once of possession of a Class A controlled substance, second offense (heroin is a Class A controlled substance, G. L. c. 94C, Section 31), and thrice of distribution of a Class A controlled substance, all second offenses. [Note 2] The defendant argues that the trial judge abused his discretion in denying the motion because the danger of prejudice from the admission of the defendant's prior convictions for the same or similar crimes, even though limited to impeachment purposes, far outweighed their probative value. [Note 3] See Commonwealth v. Maguire, 392 Mass. 466, 470 (1984). The Commonwealth, relying on Luce v. United States, 469 U.S. 38 (1984), contends that as the defendant did not testify and the prior convictions were, therefore, not admitted, the question of the balancing of prejudice and probative worth is not open on appeal. The defendant counters that he did not testify because of the adverse ruling and that if he had testified, he would have denied all involvement in the incident. See Commonwealth v. DiMarzo, 364 Mass. 669, 680 (1974) (Hennessey, J., concurring).

First, we state some basic principles. We are not dealing with an issue of Federal or State constitutional dimension. See

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Commonwealth v. Diaz, supra at 75-79, and cases cited; Commonwealth v. Maguire, supra at 470 n.8. A judge's exercise of discretion in admitting evidence of a defendant's prior conviction for impeachment purposes when a defendant testifies is reviewable on appeal. Commonwealth v. Maguire, supra at 470. "The question on appeal will normally be whether there was an abuse of discretion in admitting evidence of a prior conviction because the danger of unfair prejudice outweighed the probative value of the evidence of a prior conviction for the purposes of impeachment" (footnote omitted). Ibid. This standard of review is essentially the same as that explicitly provided in Fed.R.Evid. 609(a)(1). Commonwealth v. Maguire, supra at 468 n.2. [Note 4]

In Luce v. United States, supra, the Supreme Court granted certiorari to resolve a conflict among Federal Courts of Appeal on the question presented here. 469 U.S. at 40. A unanimous court (Stevens, J., taking no part, and Brennan and Marshall, JJ., concurring in the reasoning and result) held that in order to present for review a claim of abuse of discretion in a ruling to admit, after application of the balancing test in Fed.R.Evid. 609(a)(1), evidence of a prior conviction for impeachment purposes, a defendant must testify at trial. We set forth in the margin the relevant portions of the opinion of the Court. [Note 5] Our appellate courts have not yet considered the question.

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See Commonwealth v. DiMarzo, 364 Mass. at 680 (Hennessey, J., concurring); Commonwealth v. Knight, 392 Mass. 192 (1984) (defendant did not testify but "narrow question" before court [id. at 195] was whether judge knew he had discretion and exercised it; case decided before Commonwealth v. Maguire, supra); Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571-572 (1982) (defendant did not testify but error as matter of law for judge to refuse to exercise discretion); Commonwealth v. McFarland, 15 Mass. App. Ct. 948 (1983) (same). In Commonwealth v. Maguire, 392 Mass. at 467, the defendant testified and was impeached by a prior conviction. In announcing the standard of review to which we have referred, the court held: "We will consider seasonably raised challenges to the admission of evidence of prior convictions of a defendant

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who testified at trial." Id. at 470. We are not, of course, bound to follow the holding of the Supreme Court in Luce. [Note 6]

On the record before us, we need not reach the question whether the judge's exercise of discretion in ruling on the in limine motion to exclude evidence of prior convictions for impeachment of the defendant is reviewable. The record of the proceedings on the motion is before us on the contents of the defendant's motion to expand the record on appeal, which was allowed by the judge. [Note 7] From that motion we learn only the following. The hearing was held before the jury were empanelled. [Note 8] The defendant's counsel stated that the defendant wanted to testify but would not do so if the Commonwealth should be permitted to impeach him with evidence of convictions for the same or similar offenses. If the defendant should testify, counsel represented, "his testimony would include a complete denial of participation in the heroin sale at issue in the case." The judge examined copies of the defendant's records of convictions. The prosecutor stated that he intended to introduce evidence of the defendant's prior convictions, but there is no indication that the prosecutor informed the judge of the nature of the other evidence the Commonwealth intended to produce. "Thus the judge was not furnished with a scenario which would have given him some indication of the course the trial might be expected to take, by which he could measure the prejudicial effect of the impeaching evidence as against its relevance to the defendant's credibility" (footnote omitted). Commonwealth v. Cavanaugh, 7 Mass. App. Ct. 33, 35 (1979). See also

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Commonwealth v. Diaz, 383 Mass. at 81-82, and cases cited. The statement of counsel that the defendant would deny the allegations of the Commonwealth was, without more, an insufficient offer of proof. See Commonwealth v. Cavanaugh, supra. Cf. Commonwealth v. Chase, 372 Mass. 736, 751 n.8 (1977).

We hold only that, if the question of abuse of discretion in the denial of an in limine motion to exclude evidence is open on review at all in the case of a defendant who does not testify, see Luce v. United States, 469 U.S. at 41-42, it must be presented on a record which allows the reviewing court to evaluate the judge's balancing of unfair prejudice and probative value. See Commonwealth v. Maguire, 392 Mass. at 470. Absent extraordinary circumstances, which we do not find here, such a record must include descriptions of the nature of the evidence the parties intend to present and such other information as bears on the factors mentioned in Commonwealth v. Diaz, supra at 81. We may review the exercise of discretion only on the basis of what was before the judge at the time of exercise. [Note 9]

2. The curtailment of the defendant's cross-examination. The Commonwealth's case was based upon a single street sale of .85 grams of heroin for $50 to undercover police officers operating out of a pickup truck. There was evidence that the defendant, one of a group of males standing in an abandoned lot, approached the truck, and the officers asked him if they could purchase some heroin. The defendant retrieved the heroin, and the sale was consummated. The defendant then advised the officers to deal with him "or you'll get ripped off."

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On cross-examination of an undercover police detective (experienced in narcotics investigations) who observed but did not take part in the transaction just described, the defendant's counsel asked him to describe what one would have to do to establish an operation for the sale of narcotics. The prosecutor's objection was sustained. At a bench conference, the defendant's counsel explained that he wanted the detective's testimony to show "that it takes a substantial amount of time, energy, cash and other resources to set up any type of drug-dealing operation." With that evidence, the defendant would contend that, as he was released after serving a seven-year sentence at M.C.I., Walpole, just seven days before the transaction in question, it would have been impossible for the defendant then to have been an "active drug dealer." The judge thought that the proffered evidence was not relevant to the case presented by the Commonwealth.

"Whether evidence is legally relevant is a question which is generally left to the discretion of the trial judge." Commonwealth v. Chasson, 383 Mass. 183, 187 (1981). While we think it would not have been error to admit the evidence which the defendant sought to elicit, we cannot say, given the nature of the evidence on which the Commonwealth relied, that its exclusion constituted an abuse of discretion. See Commonwealth v. Doherty, 353 Mass. 197, 213-214 (1967), cert. denied, 390 U.S. 982 (1968); Commonwealth v. Hogan, 12 Mass. App. Ct. 646, 656-657 (1981); Commonwealth v. Bettencourt, 20 Mass. App. Ct. 923, 924-925 (1985).

3. The prosecutor's closing argument. The comments of the prosecutor in his closing argument of which the defendant's appellate counsel now complains were not objected to by trial counsel. Our review, therefore, is confined to a determination whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Daigle, 379 Mass. 541, 549 (1980). We conclude that there is no such risk.

During the course of his closing argument, the prosecutor said: "Please wade through some of the smoke that's been thrown up in this case. You know, the defendant doesn't want to talk about the drug deal. He wants to talk about how they

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[the police officers] got to this point from Holiday Inn and what streets they took. Is that important? Or is it important what happened right here on South First Street [indicating]?" When considered in context, this portion of the argument (as well as others) was in reference to the closing argument of the defendant's counsel in which he concentrated on what he perceived to be inconsistencies in the testimony of the police officers. It cannot reasonably be read otherwise. Contrast Commonwealth v. Domanski, 332 Mass. 66, 69 (1954). Compare Commonwealth v. Brown, 392 Mass. 632, 640-641 (1984), and cases cited.

On appeal, the defendant plucks from the prosecutor's statement one sentence -- "You know, the defendant doesn't want to talk about the drug deal." -- and argues that it constituted improper comment on the defendant's failure to testify. The argument is frivolous. [Note 10]

The defendant also argues that the prosecutor's use of the word "smoke" unfairly demeaned and discredited legitimate defense strategy. The prosecutor used the word to describe what he considered the defendant's trial counsel's emphasis on noncritical aspects of the evidence. As such, this was fair comment. See and compare Commonwealth v. Dunker, 363 Mass. 792, 798-800 (1973); Commonwealth v. Cheek, 374 Mass. 613, 618-619 (1978); Commonwealth v. Easterling, 12 Mass. App. Ct. 226, 230 (1981).

4. The judge's instructions on the Commonwealth's burden of proof. The defendant's argument that the "isolated utterance" that proof beyond reasonable doubt "is not proof beyond all reasonable doubt" created a substantial risk of a miscarriage of justice is foreclosed by the holding of the Supreme Judicial Court in Commonwealth v. A Juvenile (No. 2), 396 Mass. 215, 217-220 (1985).

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5. The judge's refusal to honor the request of the jury that a portion of the testimony of one witness be read to them. The jury interrupted their deliberations with a written question to the judge requesting that they be allowed to hear a portion of the testimony of the first witness, a police officer. On appeal, the defendant argues that there was error of law in the judge's refusal to grant the request because in doing so he indicated that he did not understand that he had discretion to grant it. See and compare Commonwealth v. Knight, 392 Mass. 192, 195 (1984), and Commonwealth v. McFarland, 15 Mass. App. Ct. 948, 948-949 (1983).

The defendant isolates expressions of the judge in his colloquy with counsel and in his response to the jury -- "I don't think I can answer this question . . ."; "which I don't think I'm permitted to do"; "it would be inappropriate for me . . . ." However, our review of the entire colloquy and response sufficiently persuades us that the judge was aware that he had the discretion to grant or deny the request.

There was no abuse of discretion in the denial of the request for a reading of a portion of the testimony of one witness. See Commonwealth v. Fitzpatrick, 18 Mass. App. Ct. 106, 107-109 (1984), and cases cited; Commonwealth v. Hunter, 18 Mass. App. Ct. 217, 224 (1984).

6. The sufficiency of the indictment under G. L. c. 94C, Section 32(b). The defendant argues that that part of the indictment which charged him with being a repeat offender [Note 11] is fatally defective because it fails to state that the defendant had been convicted12 of the two offenses set forth or that he was the person accused of them. "As the defendant did not raise this

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issue in the trial court on either a motion to dismiss or a motion for a required finding of not guilty, brought under Mass.R.Crim.P. 13(c) and 25, 378 Mass. 872 , 896 (1979), respectively, our consideration is confined to whether the indictment[ ] fail[s] `to charge an offense,' G. L. c. 277, Section 47A, . . . or whether there is a substantial risk that a miscarriage of justice otherwise has occurred." Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 57 (1982).

"The test of the sufficiency of the indictment[ ] is whether [it] `fully and plainly, substantially and formally' describe[s] the crimes or offenses for which the defendant[ ] [is] held to answer. Article 12 of the Declaration of Rights of the Massachusetts Constitution. See Commonwealth v. Welansky, 316 Mass. 383, 395-396 (1944)." Commonwealth v. Gill, 5 Mass. App. Ct. 337, 339 (1977). See Commonwealth v. Burns, 8 Mass. App. Ct. 194, 195 (1979). An indictment must contain "a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof." Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). "An indictment shall not be dismissed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defense; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars." G. L. c. 277, Section 34, as appearing in St. 1979, c. 344, Section 34. See Commonwealth v. McClaine, 367 Mass. 559, 560 (1975); Commonwealth v. Soule, 6 Mass. App. Ct. 973, 973-974 (1979). See generally Smith, Criminal Practice and Procedure Section 724 (2d ed. 1983).

Here, the indictment was sufficient to inform the defendant that he was being charged with being a repeat offender under G. L. c. 94C, Section 32(b), and to enable him to prepare a defense. The indictment set forth the specific prior charges, the dates on which the defendant was convicted and the court in which the proceedings took place. The defendant does not argue that he did not know of those convictions. There is explicit reference to G. L. c. 94C, Section 32(b), which deals solely with punishment for repeated convictions of the laws governing controlled substances.

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The defendant's contention that the indictment is defective because it did not state that the defendant was the accused in the prior cases is frivolous.

Any perceived deficiencies in the indictment could easily have been cured by a request for a bill of particulars. Mass.R.Crim.P. 13(b)(1), 378 Mass. 872 (1979). Finally, the defendant does not argue that he was prejudiced by the allegations in the indictment.

Judgments affirmed.