JOSEPH SUBILOSKY vs. COMMONWEALTH.

CUTTER, J. This petition for a writ of error relates to the 1966 convictions considered by this court in Commonwealth v. Subilosky, 352 Mass. 153. In that case, on March 3, 1967, this court affirmed Subilosky's 1966 convictions for the first degree murder of Pasquale J. Lombardi (acting manager of a Worcester bank), armed robbery, and related offences.

On November 13, 1967, the Supreme Court decided Burgett v. Texas, 389 U.S. 109, 115. That case determined that it was no longer proper to "permit a [prior] conviction obtained in violation of Gideon v. Wainwright [372 U.S. 335] to be used against" a criminal defendant, "either to support guilt or enhance punishment for another offense."

As a consequence of the Burgett decision, Subilosky sought a writ of habeas corpus in the United States District Court alleging, among other matters, denial of his constitutional rights in the use of six prior convictions to impeach his credibility at his 1966 Superior Court trial. In the proceedings which led to four of these convictions, one in 1937 and three in 1940, Subilosky was not represented by counsel. The district judge denied the writ. Subilosky v. Scafati, 294 F. Supp. 18, 20 (D. Mass.). The decision of the district judge was affirmed because of Subilosky's failure to exhaust his State remedies. Subilosky v. Massachusetts, 412 F. 2d 691, 693 (1st Cir.).

Upon the present petition, the single justice made the following findings concerning the prior convictions, records of which were introduced in evidence at the 1966 trial. (1) Subilosky had no counsel and did not waive his right to counsel in the following instances: 1937 -- Norfolk County conviction for prison escape, and 1940 -- three Middlesex County convictions for (a) robbery while armed with intent to kill or maim; (b) assault with intent to murder being armed; and (c) assault with intent to rob. (2) He

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was represented by counsel at the time of two 1958 Suffolk County convictions for 1951 offences, robbery while armed and unlawfully carrying a pistol on his person. [Note 1]

The single justice reserved the case, without decision, for the determination of the full court, on the petition, the amended answer, the Superior Court return, one assignment of error, the findings, certain exhibits, and "the trial transcript." We interpret this as referring to the transcript of the original 1966 trial under G. L. c. 278, Sections 33A-33G. That transcript is a part of the record in the appeal decided, 352 Mass. 153, of which in any event we could take judicial notice. See Commonwealth v. DiStasio, 298 Mass. 562, 567; Culhane v. Foley, 305 Mass. 542, 543; Matter of Welansky, 319 Mass. 205, 208-210; Miller v. Norton, 353 Mass. 395, 399-400.

1. In Gilday v. Commonwealth, 355 Mass. 799, we were "not in agreement as to the implications of the Burgett case" with respect to issues much the same as those now before us. We then, however, assumed (without deciding) that the Burgett decision precludes, at least for trials occurring subsequent to that decision, impeachment of the credibility of a witness by records of his convictions at times when he had no counsel and had not waived counsel. [Note 2] We

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continue to make this assumption, in the absence of any later clarification of the Burgett case by the Supreme Court of the United States. In the Gilday case, we did not decide whether the Burgett decision applied retroactively to trials before that decision in which records of convictions (where the defendant had no counsel) had been introduced solely for impeachment purposes. In that case we were of opinion that, in any event, use of the records was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24. The United States Court of Appeals for the First Circuit agreed with this opinion. Gilday v. Scafati, 428 F. 2d 1027 (1st Cir.), cert. den. 400 U.S. 926. Although in part II of this last cited Gilday case (at p. 1030) it was assumed that the Burgett decision applies retroactively to all trials before it was announced, [Note 3] we again need not reach the issue of retroactivity.

Massachusetts has had a long practice (see Rev. St. c. 94, Section 56; St. 1866, c. 260, Wigmore [3d ed.] Section 579), under a general statutory rule of evidence, of admitting prior convictions (subject to proper limiting instructions) to impeach the credibility of any witness. See G. L. c. 233, Section 21 (as amended by St. 1950, c. 426); Commonwealth v. Ladetto, 353 Mass. 746. See also Commonwealth v. Walsh, 196 Mass. 369, 370; Rittenberg v. Smith, 214 Mass. 343, 345-347 (civil

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cases); Commonwealth v. Smith, 342 Mass. 180, 186. [Note 4] We consider whether introduction, in the 1966 trial, of Subilosky's 1937 and 1940 convictions (where he had no counsel), solely to impeach his credibility, was harmless error beyond a reasonable doubt.

2. We do not attempt a complete new summary of the direct evidence at the 1966 trial concerning the robbery and Subilosky's participation in it. A thorough summary was made by Mr. Justice Whittemore in the earlier opinion. See 352 Mass. 153, 155-157. [Note 5] There (p. 157) it was said that Subilosky's "testimony if believed, would have established his alibi." We, of course, consider the case on the premise that it was important to him that his alibi testimony be believed.

Subilosky, among other matters, gave the following testimony. In 1966, he was forty-five years old. In his early years he was "in a great deal of difficulty with the police" and "as a result" spent "a substantial amount of time in State prison." Elsewhere, he testified, "I've lived in prison all my life. I was born out of a wall of a prison." He was released from prison on July 8, 1965, apparently as

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a result of the reversal of his 1952 Middlesex convictions for armed robbery in 349 Mass. 484 (fn. 1, supra). He soon bought a .357 Magnum pistol [Note 6] from a truck driver (whose name he did not know) in a tavern in Brighton. He "[u]sed it just for target practice." His testimony was that, about four days before the robbery, he gave it to Gregory J. Saunders (originally a codefendant in the 1966 prosecution, who during trial pleaded guilty to second degree murder and other offences connected with the 1965 robbery).

Subilosky testified concerning his presence in and near Worcester on August 27, 1965, the day of the robbery, when he was released from his job unexpectedly about 12:30 P.M. He admitted seeing Saunders in a bar that afternoon. He claimed that he had been drinking "a lot" that afternoon and evening at various bars until he went to the house of a Mr. and Mrs. Hebert, about 11 P.M. There, he said, he spent the night on the sofa. During his stay, Mrs. Hebert read aloud a news account of the robbery and "came to Saunders' name" (cf. Mrs. Hebert's account, 352 Mass. 153, 156, fn. 2). According to Subilosky, he said to her, "I gave that kid a gun . . .. I might be in trouble." He was taken to his niece's house in Northboro. The niece drove him to Boston and he "took a freight out" and went to Kansas City, Missouri, where he arrived about two weeks later. He was picked up there by the FBI in September.

During the cross-examination of Subilosky, the records of the 1937, 1940, and 1958 convictions were introduced in evidence. The judge instructed the jury at once that they were "offered for a very limited purpose," and only to affect Subilosky's credibility. [Note 7] After his charge, at the request

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of Subilosky's attorney, the trial judge gave a similar instruction.

3. Subilosky, by his own testimony on direct examination, opened up the subject of his long prison career. See Commonwealth v. Redmond, 357 Mass. 333, 339-340; Shorter v. United States, 412 F. 2d 428 (9th Cir.), where a defendant, who had introduced prior convictions himself, was not permitted to argue prejudice. See also Padron v. United States, 254 F. 2d 574, 577 (5th Cir.); Frimet v. United States, 293 F. Supp. 1127 (S. D. N. Y.). Subilosky was cross-examined on the subject only by the introduction of his prior conviction records in compliance with c. 233, Section 21 (fn. 4), to attack his credibility.

The actual records made specific what Subilosky had said in general terms. Except in detail, they added little if anything to what the jury already properly knew, viz. that a man, then forty-five years old, had "lived in prison all . . . [his] life." The jury hardly could have thought that such a long prison career was for trivial offences. They knew of his 1958 conviction (represented by counsel) for the violent crime of armed robbery. See Howard v. Craven, 306 F. Supp. 730, 735 (C. D. Cal.). They knew also from him that, promptly after his release from prison on July 8, 1965, he had bought a pistol in a bar for "target practice." The case is distinguishable from those where significant evidence bearing directly on guilt (although somewhat duplicated by other evidence) was improperly admitted. See United States v. Dickens, 417 F. 2d 958, 962 (8th Cir.); People v. Smith, 38 Ill. 2d 13, 17. See also Government of Virgin Islands v. Bell, 392 F. 2d 207, 208-210 (3d Cir. -- judge's charge not proper). As our earlier opinion ( 352 Mass. 153) indicates, the evidence (see fn. 5 of this opinion) fully warranted Subilosky's conviction, especially the direct testimony of persons at the robbery, Subilosky's admissions to

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Mrs. Hebert, the ownership of a gun involved in the robbery, his flight to Kansas City, and his admitted presence in Worcester at the time of the robbery.

We conclude, assuming it to have been error to have admitted the 1937 and 1940 records, that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24. See Harrington v. California, 395 U.S. 250. Any error arising from the use of the 1937 and 1940 records to affect Subilosky's credibility seems negligible in the light of his own testimony about his time spent in prison, the admissible record of his 1958 conviction for armed robbery in 1951, and the evidence introduced against him during eight days of trial. [Note 8] Howard v. Craven, 306 F. Supp. 730, 735 (C. D. Cal.).

Judgments affirmed.