COMMONWEALTH VS. PEDRO DIAZ.

KAPLAN, J. This appeal presents questions about the impeachment of a defendant in a criminal case through evidence of his prior convictions, and about double jeopardy in the sense of multiple punishments. Finding no error, we affirm the judgments of conviction.

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Upon indictments for unlawful distribution of a controlled substance (G. L. c. 94C, Section 32, as before 1980 amendment), and for possession of a controlled substance with intent to distribute it (id.), the drug being heroin in each instance, the defendant was tried by jury and found guilty of both charges.

We recount the evidence. Detective John Ulrich of the Boston police was the sole witness for the Commonwealth. He testified that about 6 P.M., April 2, 1978, he and Detective Al LaFontaine, both in plain clothes, concealed themselves some distance back of a three-story building located near the corner of Washington and School Streets in the Egleston Square area in Boston. About a half hour later the detectives observed the defendant and one Mendez arrive and stand on the corner near a variety store at street level of the building. Shortly a man approached them, spoke to the defendant, produced what appeared to be currency (in denominations that Ulrich could not discern), counted it, and passed it to the defendant. The defendant walked in the direction of the detectives along the School Street side of the building until he came to three trash cans twenty to thirty feet from the detectives' place of concealment opposite the junction of School Street with Egleston Street. [Note 1] Opening the middle trash can, the defendant took out two cereal boxes, then a piece of brown paper to which were taped several small bags. The defendant detached one of the bags, walked back, and handed the bag to the man who appeared to smell it and then put it in his pocket. The man crossed to the other side of School Street and began walking down that street toward the next crossing at Egleston Street. At the same time the defendant was continuing his walk toward the store front. Ulrich crossed School Street, confronted the man, and identified himself as a police officer.

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The man dropped the bag and ran down Egleston Street. Ulrich picked up the bag and went in pursuit, but gave up when he lost sight of his quarry.

Ulrich rejoined LaFontaine and they resumed surveillance. The defendant was back with Mendez at the store front. As the defendant and Mendez noticed the detectives emerging and walking toward them, they ran into the store. The detectives followed and arrested them.

The detectives then led the defendant and Mendez to the middle trash can. Ulrich opened it and removed the two cereal boxes. Beneath was a plastic bag with what appeared to be marihuana, [Note 2] and seven small plastic bags containing a brown powder; these were like the bag retrieved by Ulrich during the chase. The powder in the seven bags tested officially as heroin, as did the powder in the retrieved bag.

At the close of the Commonwealth's case, counsel for the defendant moved to exclude from evidence the defendant's two prior convictions for possession of heroin with intent to distribute. The prosecutor resisted the motion, stating that he would "more than likely" introduce the convictions to impeach the defendant's credibility if the defendant testified. The judge denied the motion "as a matter of discretion." Counsel stated for the record that because of this ruling he would not call the defendant. The defendant introduced no evidence and guilty verdicts followed. The judge sentenced the defendant to two years in the Suffolk County house of correction on each indictment, the sentences to run consecutively.

1. Impeachment by prior convictions. By the express terms of G. L. c. 233, Section 21, described in the margin, [Note 3] the

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prosecutor was entitled to introduce the defendant's prior convictions if he chose to testify. The defendant contends that the statute is unconstitutional as applied to an accused (not merely a witness) in the present circumstances -- where the prior convictions were of a crime identical with one of those charged, and that crime did not encompass the uttering of falsehood and thus was not highly demonstrative on the question of credibility. [Note 4] In such a case, the defendant says, the likelihood that a jury, despite limiting instructions, will use the convictions as a basis for inferring that the accused committed the crime charged, and not just as bearing on his credibility, may well induce him to forgo the exercise of his right to take the stand; but if he does testify, he may well suffer from the unjust jury inference mentioned. [Note 5] The constitutional guarantee claimed to be offended

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when one in the defendant's predicament refrains from testifying is that expressed in our Declaration of Rights, art. 12, of "every subject...to produce all proofs, that may be favorable to him;...and to be fully heard in his defense by himself, or his counsel," see Commonwealth v. Mangan, 293 Mass. 531, 533 (1936); when one does testify, it is the art. 12 guarantee that "no subject shall be...deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land," which implies the right to a "fair trial with an impartial jury." Commonwealth v. Brown, 364 Mass. 471, 472 (1973). See Commonwealth v. Soares, 377 Mass. 461, 473, 477, 492, cert. denied, 444 U.S. 881 (1979); Commonwealth v. Howard, 367 Mass. 569, 572 (1975); Commonwealth v. DiMarzo, 364 Mass. 669, 680 (1974) (Hennessey, J., concurring). It might seem that if the defendant in fact did not testify, he could claim to be aggrieved only on the first basis, the burdening of his right to take the stand. Yet we have in the past not so confined a defendant and have allowed him both branches of the argument. See Commonwealth v. Chase, 372 Mass. 736, 749 (1977). The two matters are linked; both relate to the "fundamentals of a fair trial" guaranteed by art. 12, see Brown v. Commonwealth, 335 Mass. 476, 482 (1957); Pugliese v. Commonwealth, 335 Mass. 471, 475-476 (1957), and the argument is in essence that the statute, having the effects or probable effects described, is not justified by a sufficient State interest.

The argument finds no support in the due process clause of the Federal Constitution which embraces guarantees analogous to those mentioned under our art. 12. We take this to be the effect of the discussion in Spencer v. Texas, 385 U.S. 554, 560-561 (1967), acknowledging that a State could constitutionally conclude that past convictions have probative value in the assessment of credibility. The Court indicated that a trial judge could obviate any unfairly prejudicial tendency of such evidence by instructing the jury to confine this material to its proper function or by exercising discretion to exclude it altogether where it might be "particularly

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prejudicial." [Note 6] Subsequent cases have read Spencer as foreclosing any Fourteenth Amendment attack on impeachment by prior convictions; [Note 7] and it is noteworthy that the language of Spencer about discretion to exclude has been taken as merely "descriptive" of the practice in many States, and not as suggesting any due process infirmity when the statute or rule allowing impeachment (and the practice thereunder) gives the trial judge no discretion to exclude the convictions when offered. [Note 8]

The defendant does not advance any argument on the Federal plane, rather he urges us to read the guarantees of art. 12 more expansively than their Federal due process counterparts. We have recognized the peculiar danger of unfair jury inferences when the conviction introduced is of a crime similar to that being tried, [Note 9] and noted also the relative significance of convictions of the different kinds of crimes in the appraisal of a defendant's propensity for speaking the

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truth. [Note 10] Nevertheless we have rejected constitutional challenges to G. L. c. 233, Section 21, as well by a defendant who chose not to take the stand for fear of impeachment, Commonwealth v. Chase, supra, as by a defendant who took the stand and was impeached. Commonwealth v. Leno, 374 Mass. 716, 717 (1978). [Note 11] The two cited cases each involved a situation like that presented here: the prior conviction was of a crime similar to the one charged and did not bear directly on credibility, as perjury or fraud might do. [Note 12] Our consistent position, then, most recently stated in Leno, has been that the statute in its application -- with the restrictions provided by the statute on the admission of convictions remote in time (see note 3) and with appropriate use by the trial judge of limiting instructions -- strikes a constitutional balance between the possibility of unfairness to defendants, and the desirability of making useful information available to the trier. [Note 13] Other State courts have taken the same general line. [Note 14]

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In the Chase case, 372 Mass. at 750, qualifying our decision in Commonwealth v. West, 357 Mass. 245, 249 (1970), and building upon thoughts expressed in Commonwealth v. DiMarzo, 364 Mass. 669, 680-682 (1974) (Hennessey, J., concurring), and Commonwealth v. Delorey, 369 Mass. 323, 331 (1975) (Hennessey, J., concurring), we said that "we would not deny the right of a judge to avoid any question of unfairness by excluding such evidence in a situation where the likely prejudice to the defendant is most intense." However, this was not put in terms of reviewable discretion, and we have held that the refusal of a trial judge to exercise the "right" mentioned in Chase is not a basis for appeal. See Leno, supra at 718; Commonwealth v. Tabor, 376 Mass. 811, 824 (1978).

The "right" spoken of in Chase would be reworked as "discretion" in rule 609(a) of the recently Proposed Massachusetts Rules of Evidence (July 1980): "(a) General rule. For the purpose of impeaching the credibility of a witness, evidence that he has been convicted of a crime is admissible. In a criminal case, the court shall have discretion to exclude evidence of a prior conviction offered to impeach the credibility of the accused if it finds that its probative value is outweighed by the danger of unfair prejudice. There shall be no discretion to exclude a prior conviction offered to impeach the credibility of any other witness. A plea of guilty or a finding or verdict of guilty shall constitute a conviction." (The parallel Federal rule is referred to in the margin.) [Note 15] In assessing the "intensity" of the prejudice under

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Chase or matching "probative value" and "unfair prejudice" under such a rule as 609(a), a judge might look to the factors mentioned by Burger, J., in United States v. Gordon, 383 F.2d 936, 940-941 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968), including: (i) the bearing of the particular conviction on credibility; (ii) the defendant's history following the conviction; (iii) the resemblance of the prior offense to the pending charge, with consideration of whether a dissimilar prior conviction should be admitted in preference to a similar one; (iv) the importance of the defendant's taking the stand; (v) the weight of the factor of the defendant's credibility in the decision of the issues of fact. And see the comments on those elements in 3J. Weinstein & M. Berger, Evidence par. 609[03], at 609-65 to 609-72 (1978). As to the time when a ruling should be made on a motion by a defendant to bar his impeachment through prior convictions, it is desirable, if feasible, that this should occur at an early moment, since it may affect counsel's conduct of the trial all down the line. Federal courts have made this point, see United States v. Oakes, 565 F.2d 170, 171 (1st Cir. 1977); United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979), cert. denied 414 U.S. 1034 (1980); United States v. Jackson, 405 F. Supp. 938, 942 (E.D.N.Y. 1975) (Weinstein, J.); 3J. Weinstein & M. Berger, Evidence, supra par. 609[03a], at 609-79 (1978), as have some State courts, see State v. Bennett, R.I. , (1979)

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(405 A.2d 1181, 1187 [R.I. 1979]); People v. Sandoval, 34 N.Y. 2d 371, 375 (1974); State v. Martin, 217 N.W.2d 536, 543, 544 (Iowa 1974). True it is that the significant factors, like those set out in United States v. Gordon, supra, would be best appreciated after the defendant had taken the stand and testified on direct (see United States v. Toney, 615 F.2d 277, 280 [5th Cir. 1980] [Tjoflat, J., concurring]; United States v. Cook, supra at 1189-1190 [Kennedy, J., dissenting in part]), but that assumes a risky commitment by the defendant. A judge can prepare himself for an early ruling by inquiring about the nature of the proof the parties intend to present, including what the defendant himself would offer if he took the stand; and an advance ruling may be made contingent on the evidence coming forward as thus indicated. United States v. Oakes, supra at 171-172. United States v. Cook, supra at 1186. United States v. Jackson, supra at 942-943.

2. A question of double jeopardy. General Laws c. 94C, Section 32, describes (although in a single sentence) the distinct crimes, among others, of distributing a controlled substance, and of possessing such a substance with intent to distribute it. [Note 16] In the present case the defendant was convicted and sentenced for distributing one bag of heroin, the one handed to the fleeing man, and of possessing seven other bags of heroin with intent to distribute them. He claims he was doubly punished for the same offense, in violation of a guarantee of the Fifth Amendment, applied to the States through the Fourteenth, see North Carolina v. Pearce, 395 U.S. 711, 717 (1969), and of a rule of our common law, see Gallinaro v. Commonwealth, 362 Mass. 728, 736 (1973); Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U. L. Rev. 887, 923 (1980). [Note 17]

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The defendant points to decisions under a federal drug statute, 21 U.S.C. Section 841 (a)(1) (1976), in text virtually identical with the first paragraph of our G. L. c. 94C, Section 32 (partially quoted at n.16), where, says the defendant, it has been held that illicit distribution of a drug cannot be punished both as distribution and as possession with intent to distribute; there can be but one punishment as there is but one offense. The cases turn out to be poor support for the defendant's position. The holding mentioned applies to cases where the accused, being in possession of a particular packet or quantum of a drug, passes it to a buyer or other recipient, and this is sought to be charged as both distribution and possession with intent. Quite understandably, courts have reasoned that Congress intended to punish a sale transaction with a particular packet of a drug as distribution, if the sale is completed, or as possession with intent, if interrupted before completion, but not as both; in such a case the possession with intent is incident to, and inherent in, the very distribution, and double charges would appear to be an artificial and unconstitutional cumulation of crimes and punishments. [Note 18] The cases on this point are numerous. [Note 19]

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A different case, however, is presented where, as here, separate items are involved in the respective charges: the defendant had completed one heroin sale, and was holding a separate cache of the drug for future distributions. So in United States v. Carter, 576 F.2d 1061 (3d Cir. 1978), the court under 21 U.S.C. Section 841(a) (1976) affirmed one punishment for distribution of a quantity of narcotics and a second for possession of another discrete quantity with intent to distribute it: "When an individual possesses an amount of heroin that could result in a future distribution, and when the same individual also distributes another quantity of heroin, he is punishable for both possession and for distribution." Id. at 1064. The result, according to the court, was consistent with congressional intent [Note 20] and permitted by the double jeopardy clause. See also United States v. Lewis, 621 F.2d 1382, 1390 (5th Cir. 1980) (punishment for manufacture of certain items and separate punishment for possession of other items with intent to distribute); United States v. Goodman, 605 F.2d 870, 885 (5th Cir. 1979) (same); United States v. Welebir, 498 F.2d 346, 352 (4th Cir. 1976) (same). The words of neither the Federal statute nor our own describe an offense of maintaining a drug business, which might be proved by a number of acts of possession and sale; rather the statutes denounce particular acts stated disjunctively. This is indicative of the appropriate unit for purposes

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of punishment. Compare Commonwealth v. Guerro, 357 Mass. 741, 750-751 (1970), Gallinaro v. Commonwealth, 362 Mass. 728, 734 n.5 (1973), with Sanabria v. United States, 437 U.S. 54, 70-71 (1978), Commonwealth v. Winter, 9 Mass. App. Ct. 512, 525-528 (1980). [Note 21] Agreeing with the Carter line of cases, and applying their approach to G. L. c. 94C, Section 32, we hold that the defendant does not establish a double jeopardy violation. [Note 22]

Judgment affirmed.