COMMONWEALTH vs. CALVERT KNIGHT, JR.

ABRAMS, J. The Appeals Court determined that there was no error in denying the defendant's motion for a required finding of not guilty, but felt "constrained to reverse" the defendant's conviction of armed robbery while masked because the trial judge failed to exercise discretion in ruling on the defendant's motion to exclude evidence of his prior convictions from being used to impeach the defendant's credibility. Commonwealth v. Knight, 16 Mass. App. Ct. 622, 623 (1983). We agree

Page 193

with the Appeals Court's well-reasoned analysis on the issue of the defendant's motion for a required finding of not guilty or, in the alternative, for a required finding of not guilty of so much of the indictment as charged being masked. Id. at 623-627. However, we conclude that the record supports a determination that the judge knew he had discretion to exclude the defendant's prior convictions but chose to exercise his discretion to permit the prosecutor to use them. We therefore affirm the conviction.

At the close of the Commonwealth's case, the prosecutor informed the judge and defense counsel that, if the defendant elected to testify, the Commonwealth would seek to introduce evidence of prior convictions to impeach the defendant's credibility. See G. L. c. 233, Section 21. Defense counsel moved to have the convictions excluded on the ground that many of the prior convictions were for armed robbery and hence would be "very, very prejudicial." Defense counsel suggested that the jurors would be influenced by them in considering the merits of the instant case.

The prosecutor stated that "under the recent case law, the Diaz case, I think it is, . . . even if [the convictions are] similar in nature it's within the discretion of the judge to let them in." Defense counsel agreed that use of the convictions to impeach was a ruling within the judge's discretion.

After hearing argument from both counsel, the judge said, "It is my belief that we are dealing with a statute here, Section 21 of Chapter 233, and until the Legislature decides to change that statute, if they ever do, any attorney may introduce convictions which come under that statute either in a civil or a criminal proceeding. That would apply to the District Attorney or defense counsel. . . ." The judge denied the defendant's motion and noted defense counsel's objection. The defendant did not testify.

In reversing the conviction, the Appeals Court concluded that the judge's "language . . . appears to be a ruling that the judge had no discretion to exclude the convictions." Commonwealth v. Knight, 16 Mass. App. Ct. 622, 627 (1983). We agree with the Appeals Court that "a ruling that the court has no

Page 194

power to allow [a motion], when in truth the allowance is discretionary, is an error of law that can be corrected on [appeal]." Peterson v. Cadogan, 313 Mass. 133, 134-135 (1943). "It is one thing to consider that right [to admit or exclude prior convictions] and exercise it either way, but having been given that right, analogous to discretion, it is the duty of the judge to exercise it, and it is error as a matter of law to refuse to exercise it." Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982).

Clearly, judges now have discretion to preclude the use of prior convictions to impeach a defendant's credibility. [Note 1] "In the Chase case, 372 Mass. [736,] 750 [1977], 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 that `right' mentioned in Chase is not a basis for appeal." Commonwealth v. Diaz, 383 Mass. 73, 80 (1981). See Commonwealth v. McTigue, 384 Mass. 814, 815 (1981). Thus, "[a]s long as the judge exercises discretion and there is no unfairness in a due process sense (Commonwealth v. Chase, 372 Mass. 736, 750 [1977]), the statutory provisions (G. L. c. 233, Section 21) concerning the admission of evidence of prior convictions control." Commonwealth v. King, 391 Mass. 691, 695 (1984).

Page 195

The narrow question before us is whether the judge knew he had discretion and exercised it, or believed that his decision was compelled by the statute. We believe the record can support a conclusion that the judge knew he had discretion and exercised it in favor of the Commonwealth.

During the hearing on the motion, both counsel told the judge that a ruling either way was within his discretion, and each urged the judge to exercise discretion in favor of his position. Thus, this is not a case where the judge was unaware of his right to use discretion. Cf. Commonwealth v. McFarland, 15 Mass. App. Ct. 948, 949 (1983) (prosecutor argued that the judge had no discretion; judge stated that he was "bound" by the statute). During the hearing, the judge noted that the Commonwealth would "have to prove this defendant joined that so-called joint enterprise to commit the crime of armed robbery and the only -- the evidence against your defendant was that he was in an automobile which took one of the other defendants away." He also noted that the Commonwealth had the burden of proof. We think the judge's comments on the nature of the Commonwealth's case and its burden of proof during the proceedings support a conclusion that the judge knew he had discretion and exercised it in favor of the Commonwealth. Compare id. ("[T]he judge denied the motion, noting that `until the Legislature accepts the Supreme Judicial Court's invitation to deal with an amendment to . . . [G. L. c. 233, Section 21], I feel that I am bound by the simple terms of that statute'"). Cf. Commonwealth v. Diaz, 383 Mass. 73, 80 (1981). The judge's comment that he would always permit the use of prior convictions to impeach was unfortunate and should not have been made. However, the record viewed as a whole indicates that "[t]he judge was aware that he had discretion to bar the use of the defendant's prior convictions for impeachment." Commonwealth v. King, 391 Mass. 691, 694 (1984), and considered, albeit less thoroughly than we might wish, the impact of admission of the convictions in the particular case. [Note 2]

Page 196

We conclude that reversal of the conviction is not required. See Commonwealth v. Diaz, supra at 80.

The defendant also alleges that he was denied due process because he was punished for exercising his right to a jury trial. Specifically, the defendant argues that, because his two codefendants who pleaded guilty were given shorter sentences, we should conclude that his sentence was unconstitutionally imposed. [Note 3] The defendant has failed to provide us with the records and social histories which the probation department had compiled for the trial judge. Thus, this issue is not properly before us.

We observe, however, that on the limited record before us, it is clear that the judge based his sentences on an assessment of each defendant's prior record, age, and character. It is also clear that the defendant had the most extensive prior criminal record of the men involved in this robbery. The judge also noted that the disparity in the prosecutor's sentencing recommendation for Knight "had to do with [the defendant Knight's] past criminal record."

On the record before us there is no suggestion of vindictiveness on the part of the prosecutor or the judge, see Longval v. Meachum, 693 F.2d 236, 237-238 (1st Cir. 1982), cert. denied, 460 U.S. 1098 (1983). "The judge is permitted great latitude in sentencing, provided the sentence does not exceed statutory limits. United States v. Latimer, 415 F.2d 1288 (6th Cir. [1969])." Commonwealth v. Celeste, 358 Mass. 307, 310 (1970). "In addition to the nature of the offense, a wide variety

Page 197

of factors can be taken into account, such as the defendant's character, background and prior record." Commonwealth v. Longval, 378 Mass. 246, 253 (1979). [Note 4]

Judgment of the Superior Court affirmed.