COMMONWEALTH vs. ENRIQUE OLIVO.

MCHUGH, J. After the defendant, Enrique Olivo, sold twenty dollars worth of "crack" cocaine to a State police trooper, he was arrested and indicted for distribution of cocaine, second offense, see G. L. c. 94C, § 32A(c), (d), and distribution of cocaine within 100 feet of a public park, see G. L. c. 94C, § 32J. In the first of two trials mandated by G. L. c. 278, § 11A, [Note 1] for charges involving commission of a prior offense, the jury returned a guilty verdict on the charge of distribution of cocaine within 100 feet of a public park. In the second trial, the same jury returned a verdict stating that he had previously been convicted of like offenses. From the second verdict, the defendant appeals, claiming that the Commonwealth produced insufficient second-trial evidence for the jury to conclude that he had been convicted previously and that the trial judge erroneously failed to instruct the second-trial jury that they were limited to second-trial evidence in deciding the prior conviction issue. We affirm.

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The facts surrounding the drug dealing that led to the defendant's arrest need not be recounted because they are irrelevant to the claims of error he now presses. We focus instead on evidence bearing on the defendant's identity that was introduced at both trials, for that evidence lies at the heart of his appeal.

Both trials took place in April, 2000. In the first trial, a police officer called by the prosecution identified the defendant as the person whom police arrested after he sold crack cocaine to an undercover State trooper on May 13, 1999. The officer also testified that the defendant's name was Enrique Olivo, that his birthday was January 2, 1981, and that he was nicknamed "Pose" and "June Bug." The defendant testified in his own defense and, among other things, identified himself as Enrique Olivo of 120 B Rifle Street, Springfield, Massachusetts. He also said that he was nineteen years old. As stated, the first-trial jury returned verdicts of guilty of distribution of cocaine and distribution of cocaine within 100 feet of a public park.

After the jury returned the first-trial verdicts, the defendant was placed at bar before the same jury for trial of the single question whether he had previously been convicted of like offenses. [Note 2] The second-trial evidence was brief. The Commonwealth called one witness, a Springfield police officer, who testified that he had arrested the defendant on September 29, 1998, and had charged him with "possession of a Class B substance, crack cocaine, with the intent to distribute and violation of a drug free school zone, the Brookings school." The officer also testified that his department sought complaints against the defendant for those offenses in the Springfield District Court. Finally, the officer identified the defendant as the person he had arrested for the offenses but testified that he knew him only as "June Bug." [Note 3]

Near the end of the officer's direct testimony, the Commonwealth

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introduced a certified copy of a conviction record from the Springfield District Court. The record said that on September 30, 1998, a person named Enrique Olivo had been charged in that court with "94C/32A/G DRUG, POSSESS TO DISTRIB CLASS B c94C" and "94C/32J DRUG VIOLATION NEAR SCHOOL/PARK c94C 32J." Although neither charge was otherwise explained, the record stated that the offenses had occurred on September 29, 1998, and yielded convictions on May 10, 1999. [Note 4] By way of identification, the record stated that the person named Olivo had a birth date of January 2, 1981, that he was a white male, five feet, ten inches in height, weighing 180 pounds, with brown eyes and hair. Finally, the record stated that "Olivo" lived at 120 B Rifle Street, Springfield, Massachusetts.

The defendant called no witnesses. Both counsel argued to the jury, and the judge instructed the jury, that the Commonwealth had the burden of proving beyond a "reasonable doubt that the Defendant [was] guilty of the charge made against him, in this case that he [was] a second offender," i.e., that he was "the same Enrique Olivo who was convicted on the prior occasion as alluded to" in the exhibit the Commonwealth had introduced. Twenty minutes after retiring, the jury returned a verdict stating that the defendant was "guilty" on the "charge" of being a second offender.

The defendant's first claim here is that the evidence before the second-trial jury was insufficient to prove, beyond a reasonable doubt, that he was the person convicted of the specified prior offenses on May 10, 1999. Relying on Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995), he asserts that the second-trial jury were prohibited from considering any evidence regarding the prior conviction save that introduced during the second trial. Constrained by that restriction, he continues, all the second-trial jury had before them was evidence that someone with a name identical to his was convicted of the relevant drug offenses on May 10, 1999. Identity of names, he concludes, was

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not enough to carry the Commonwealth's burden. [Note 5]

The defendant correctly cites Koney for the proposition that mere identity of names is not enough to prove a prior conviction. But, in Koney, the Commonwealth sought to prove the prior offenses without any testimony, simply by producing conviction records. Here, although the jury were limited to considering the evidence the Commonwealth produced at the second trial -- and we shall deal with that issue next -- the jury had before them much more than mere identity of names. The offenses listed in the record of the Springfield District Court, although stated in something of a code, looked like the offenses for which the officer testified he had arrested the defendant. The offense date set out in the record was the date on which the officer testified that the defendant's crime and arrest had occurred. The officer also testified that the police department had sought a complaint in the Springfield District Court and the record was from the Springfield District Court. Finally, the record contained identifying data which the jury, having had a full opportunity to view the defendant when he stood before them as the second trial began, and as he sat at counsel table throughout the proceeding, could have used to determine whether the defendant fit the description the record contained. [Note 6] Cf. Commonwealth v. Burke, 339 Mass. 521, 534-535 (1959); Commonwealth v. Kater,

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388 Mass. 519, 533 (1983). This was not, therefore, a case in which the Commonwealth simply relied on identity of names. See, e.g., Commonwealth v. Maldonado, 55 Mass. App. Ct. 450, 459 (2002), S.C., 439 Mass. 460 (2003). On this record, the evidence before the jury was sufficient to support their verdict.

The defendant's second contention is that the trial judge failed to instruct the jury that, insofar as proof of a prior conviction was concerned, they were permitted to consider only the evidence introduced during the course of the second trial. He is correct in his assertion that the judge gave no such instruction, but defense counsel did not seek one. Consequently, if omission of the instruction was error, we reverse only if the error produced a substantial risk of a miscarriage of justice. Commonwealth v. Ascolillo, 405 Mass. 456, 463-464 (1989).

" 'This court's traditional treatment of the substantial risk issue calls for us to decide if we have a serious doubt whether the result of the trial might have been different had the error not been made.' Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In making that determination, we review the evidence and the case as a whole, considering the strength of the Commonwealth's case, as well as the nature and significance of the alleged errors. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). A new trial will be ordered only in the extraordinary situation where, after such a review, we are left with uncertainty that the defendant's guilt has been fairly adjudicated. Commonwealth v. Amirault, [ 424 Mass. 618,] 647 [(1997)]."

Commonwealth v. Chase, 433 Mass. 293, 299 (2001). [Note 7]

We conclude that omission of the instruction was an error. In

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Koney, the Supreme Judicial Court, in a short, unencumbered, declarative sentence, said that "[t]he separate trial requirement of G. L. c. 278, § 11A, preclude[s] the [fact finder] from relying on any evidence that [was] presented at the [first] trial to establish identity." Commonwealth v. Koney, 421 Mass. at 302. [Note 8] While the substantive offense in Koney had been tried to a jury and the second trial proceeded jury-waived, there is no hint or suggestion in the opinion, or in any succeeding opinion, that the quoted rule was limited to situations in which the two trials proceeded with different fact finders.

If, as Koney commands, the evidence on which the jury may draw in deciding whether the defendant had earlier committed like offenses is limited to evidence admitted at the second trial, then the defendant was entitled to instruction to that effect. Cf. Commonwealth v. Depradine, 42 Mass. App. Ct. 401, 409 (1997); Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 371 (2001); Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 197 (2002). Moreover, enforcement of the Koney limitation is virtually impossible without such an instruction because the

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jury were fresh from the first trial where they heard evidence that uninstructed common sense would suggest was helpful in resolving the single issue the second trial presented. Moreover, so consonant with common sense is the utility of that first-trial evidence that we may almost presume that an uninstructed jury made use of first-trial evidence and was consequently tainted by information that, at the second trial, amounted to an extraneous influence. See generally Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 255-262 (2002).

Error established, the question, thus, is whether "we have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Chase, 433 Mass. at 299, quoting from Commonwealth v. LeFave, 430 Mass. at 174. We do not.

The Springfield police officer who testified at the second trial said that he had arrested the defendant, whom he knew as "June Bug," on September 29, 1998; that he had charged the defendant with "possession of a Class B substance, crack cocaine, with the intent to distribute and violation of a drug free school zone, the Brookings school"; and that the Springfield police department sought complaints for those offenses in the Springfield District Court. The documentary evidence consisted of a record showing a conviction on a complaint that issued from the Springfield District Court on September 30, 1998, the day after the defendant's arrest, charging "Olivo, Enrique J." with possession with intent to distribute a Class B substance and doing so near a school or park. The record listed the "date of offense" as "9/29/1998." [Note 9] The second-trial record contains abundant circumstantial evidence that the defendant had a prior conviction for like offenses. We are, therefore, persuaded that omission of the instruction did not change the trial's result.

Judgment affirmed.