Commonwealth v. Lavelle

596 N.E.2d 364, 33 Mass. App. Ct. 36, 1992 Mass. App. LEXIS 656
CourtMassachusetts Appeals Court
DecidedJuly 23, 1992
DocketNo. 91-P-431
StatusPublished
Cited by4 cases

This text of 596 N.E.2d 364 (Commonwealth v. Lavelle) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Lavelle, 596 N.E.2d 364, 33 Mass. App. Ct. 36, 1992 Mass. App. LEXIS 656 (Mass. Ct. App. 1992).

Opinions

Jacobs, J.

The defendant appeals from his convictions by a Superior Court jury on two indictments for distribution of a counterfeit controlled substance. G. L. c. 94C, § 32G. His argument focuses largely on claimed errors in the admission and exclusion of evidence. We affirm.

Two Framingham police officers, Detectives Shastany and Davis, and a former undercover informant, John Robinson, [37]*37were the only witnesses for the prosecution. Robinson testified in some detail of seeking the defendant out in mid-October 1986, as a possible source of drugs and later that month making two separate “cocaine” purchases from him1 at Jessica’s, a nightclub in Framingham. The purchased material proved to be counterfeit. Both purchases were supervised by the police officers who directed that Robinson attempt to make the purchases from the defendant and “controlled” the situation by providing Robinson with money for the purchase and searching him and his automobile before and after each buy. The police officers also received the purchased material from Robinson and “debriefed” him concerning the details of the purchases. They offered no independent evidence, however, of the defendant’s presence at Jessica’s at the time of the purchases. Thus, Robinson’s testimony comprised the only evidence of the defendant’s involvement with the counterfeit substance. Robinson also testified that the defendant drove into Robinson’s driveway following being charged in this case with distributing counterfeit drugs and, after telling Robinson that what he was doing was wrong said, “You’ve just got to be careful of your family.” Robinson stated that he reported to Detective Shastany that the defendant had threatened him.2 This episode was mentioned by both counsel in their opening statements and the prosecutor, in his closing argument to the jury, twice referred to the defendant’s having threatened Robinson.

The prosecution, over objection, introduced evidence of Robinson’s history of undercover work and high-minded motivation for helping the police. Defense counsel, during extensive cross-examination, impeached Robinson with his record of felony convictions, use of aliases, receipt of money from the police for participating in other cases, and his filing of a false newspaper report of his son’s having been killed in an [38]*38accident. He stated that he filed the false report because he “was getting a lot of threatening phone calls and people were • coming to the house . . . . I just wanted to protect him' at that time.” Robinson also confirmed that he had been “honest and truthful with [the police] at all times in matters relating to [his undercover] investigations.” Detective Shastany was permitted to testify, over objection, that he and Detective Davis had elicited background information from Robinson prior to using him in police work.

During cross-examination of both Robinson and Detective Shastany, defense counsel unsuccessfully attempted to obtain the judge’s permission to inquire about an incident which had occurred less than three months after Robinson claimed he had been threatened by the defendant.3 The incident had been the subject of a voir dire hearing immediately preceding the trial, during which Detective Shastany and another police officer testified and submitted affidavits. They testified that Robinson informed them he had been assaulted in his backyard by three men who made statements to him which, he interpreted as warnings not to appear in a pending court proceeding.4 Approximately four hours later he admitted to the police that he had fabricated the entire story. After the hearing, defense counsel argued for the admissibility of evidence of the incident on the basis of (1) its tendency to prove Robinson’s bias or his close relationship with the police, (2) the defendant’s constitutional right of confrontation and, (3) the potential impeaching effect on the credibility of Robinson. He claimed that the prosecution’s total reliance on Robinson’s testimony to implicate the defendant created a unique circumstance warranting admission of the evidence. The judge rejected the argument, but without prejudice to its [39]*39being pressed during trial. He stated that no bias had been shown and that the incident was a prior bad act unconnected to the issues in the case. At trial, the defendant’s case consisted entirely of his own testimony. He unequivocally denied dealing with Robinson or ever appearing at his home.

It is well established that “[s]pecific acts of prior misconduct of the witness ... not material to the case in which [the witness] testifies cannot be shown by the testimony of impeaching witnesses or other extrinsic evidence to affect [the witness’s] credibility.” Liacos, Massachusetts Evidence 149 (5th ed. 1981 & Supp. 1985). Miller v. Curtis, 158 Mass. 127, 131 (1893). Commonwealth v. Andrews, 403 Mass. 441, 459 (1988). The limitation encompasses cross-examination of the witness. Commonwealth v. Turner, 371 Mass. 803, 809-810 (1977). The general rule is not inflexible, however, and the possibility of exceptions has long been recognized. Miller v. Curtis, supra at 130. Commonwealth v. Bohannon, 376 Mass. 90 (1978), carved out such an exception. In Bohannon, the defendant was charged with rape and the defense was consent. The Supreme Judicial Court held it to be error to exclude evidence of the victim’s prior false allegations of rape. The “special circumstances” of Bohannon were that “the witness was the victim in the case on trial, her consent was the central issue, she was the only Commonwealth witness on that issue, her testimony was inconsistent and confused, and there was a basis in independent third-party records for concluding that the prior accusations of the same type of crime had been made and were false.” Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979).

The defendant argues that elements of this case sufficiently parallel the special circumstances of Bohannon to require admission of the evidence of Robinson’s false claim. Here, as in Bohannon, the credibility of one person, the only witness to the crime, was the linchpin to the prosecutor’s case. Additionally, there was uncontroverted evidence of that witness’s having made a false accusation of threats prior to trial. The defendant contends that evidence of that false accusation assumes critical importance in light of Robinson’s testimony, [40]*40likely to be given great weight by the jury, accusing the defendant of threatening him.

The defendant’s argument fails to recognize that the Bo-hannon “exception to the general rule barring evidence of prior false accusations is a narrow one,” Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 489 (1987), involving specific and special circumstances. See Commonwealth v. Sperrazza, supra at 169. Two of those special circumstances are missing from this case. The testimony of Robinson was neither inconsistent nor confused. More importantly, the false accusation in issue did not involve “the specific crime which is the subject of the trial.” Commonwealth v. Bohannon, supra at 95. It bore, instead, upon a collateral, albeit important issue, the credibility of Robinson’s accusations of threats.

We are aware of no appellate decision in this jurisdiction, since Bohannon,

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Cite This Page — Counsel Stack

Bluebook (online)
596 N.E.2d 364, 33 Mass. App. Ct. 36, 1992 Mass. App. LEXIS 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lavelle-massappct-1992.