Commonwealth v. Thomas Elwell.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-792

COMMONWEALTH

vs.

THOMAS ELWELL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of armed

robbery. On appeal the defendant challenges the trial judge's

denial of his motion to impeach the victim with a prior

conviction and the judge's giving of a consciousness of guilt

instruction. We affirm.

Background. During the day on October 6, 2018, the victim

was walking on Highland Avenue from Salem toward Lynn when he

heard someone in a car yelling his name and telling him to "come

over." The car, which was also traveling on Highland Avenue,

pulled in next to a 7-Eleven convenience store located about

one-half mile into Lynn. There were two men in the car. The

victim recognized the driver as the defendant from their time in

jail together. The victim did not know the passenger.
As the victim walked over to the car, the defendant and the

other man jumped out and approached him saying, "You know what's

going on. Drop your stuff." The defendant held a knife to the

victim and told him to "[h]and over everything" he had. The

other man lifted up his shirt, displaying what appeared to be

the handle of a gun or a knife. The victim gave the men his

cell phone and his backpack, which contained his laptop computer

and some clothes. The men then got back in the car and drove

away.

About a week later, detectives interviewed the defendant.

At first, the defendant denied being in Lynn recently and denied

knowing the victim. But when confronted with the victim's

version of events, the defendant admitted that he knew "of" the

victim because they were in jail together years ago. When a

detective then asked "what really happened," the defendant

claimed that he and a man named Spades were driving on Highland

Avenue into Lynn when Spades said, "We're going to rob

somebody." The defendant further claimed that he asked to be

let out of the car, but Spades held a knife to him, pulled into

the 7-Eleven parking lot, and forced him to participate in the

robbery.

Discussion. 1. Motion to impeach. On the first day of

testimony, the defendant moved to impeach the victim with his

2014 conviction of larceny from a building, arguing that the

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prior conviction could be used for impeachment purposes because

it bore on "the victim's capacity for honesty." The judge

disagreed and denied the motion. Reasoning that the crime of

larceny from a building is not one "that correlates to [a

witness's] ability to tell the truth," the judge concluded that

the probative value of the prior conviction was de minimis,

while the risk of unfair prejudice was high.

On appeal the defendant does not appear to challenge the

judge's conclusion that larceny from a building is not a crime

implicating truthfulness. Instead, quoting Commonwealth v.

Smith, 450 Mass. 395, 407 (2008), cert. denied 555 U.S. 893

(2008), he points out (for the first time on appeal) that

"convictions relevant to credibility are not limited to crimes

involving dishonesty or false statements." For its part the

Commonwealth appears to concede that under Commonwealth v.

Sheeran, 370 Mass. 82, 89 (1976), and Commonwealth v. Pierce, 66

Mass. App. Ct. 283, 289-290 (2006), theft-related offenses, such

as larceny, may implicate truthfulness. Nonetheless, the

Commonwealth argues that the judge was still within her

discretion to conclude that the risk of unfair prejudice

outweighed the probative value of the prior conviction.

Under G. L. c. 233, § 21, "[t]he conviction of a witness of

a crime may be shown to affect his credibility," so long as the

statutory requirements regarding the degree of the offense, the

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disposition, and the age of the conviction are met. See

Commonwealth v. Harris, 443 Mass. 714, 720 (2005). But "[a]

judge has discretion to exclude evidence of a prior conviction,

otherwise admissible to be used for impeachment under G. L.

c. 233, § 21, if the danger of unfair prejudice resulting from

such evidence outweighs its probative value." Commonwealth v.

Crouse, 447 Mass. 558, 565 (2006). Factors relevant to this

determination include "whether the prior conviction involves a

crime implicating truthfulness." Commonwealth v. Little, 453

Mass. 766, 773 (2009). 1

Here, we need not decide whether the judge abused her

discretion in excluding the victim's prior conviction because,

even assuming there was a preserved error, the defendant has not

shown prejudice. The victim testified that he knew the

defendant "[f]rom jail." The defendant likewise stated in his

recorded police interview, which was played for the jury, that

he knew the victim because they had been in jail together. 2

Because an ordinary juror would have inferred from this evidence

1 The remaining factors -- "whether the prior conviction is
substantially similar to the crime charged" and "whether there
were other prior convictions that the Commonwealth could have
used to impeach the defendant," Little, 453 Mass. at 773 -- are
not relevant where, as here, the witness in question is not the
defendant. There are few appellate cases discussing the issue
in this context.
2 The judge instructed the jury that they could not consider the

defendant's prior incarceration as evidence of his bad character
or propensity to commit the charged crime.

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that the victim had been previously convicted of a crime, the

defendant suffered no prejudice from the denial of his motion,

which, if allowed, would have entitled him only to put in the

fact of the prior conviction. See Commonwealth v. Bly, 444

Mass. 640, 651-652 (2005) (when witness impeached with record of

prior conviction, underlying details of conviction and length of

sentence must be excluded); Commonwealth v. Kalhauser, 52 Mass.

App. Ct. 339, 344 (2001) (party using prior conviction to

impeach witness "is limited to establishing the identity of the

witness as the person named in the record" and must not mention

details of conviction). In addition, the Commonwealth's case

was strong -- the victim had no motive to lie, and the defendant

admitted to the police that he was present when the victim was

robbed. For these reasons we can say "with fair assurance" that

any error "did not substantially sway[] the verdict."

Commonwealth v. Palermo, 482 Mass. 620, 625 (2019), quoting

Commonwealth v. DePina, 476 Mass. 614, 624 (2017).

2. Consciousness of guilt instruction. "Consciousness of

guilt instructions are permissible when there is an 'inference

of guilt that may be drawn from evidence of flight, concealment,

or similar acts." Commonwealth v. Stuckich, 450 Mass. 449, 453

(2008), quoting Commonwealth v. Toney, 385 Mass. 575, 584

(1982). "False statements made to the police are a standard

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example of admissible evidence on consciousness of guilt."

Commonwealth v. Carrion, 407 Mass. 263, 276 (1990).

The defendant argues that there was no evidence in this

case that he made false statements to the police. We disagree.

During his interview the defendant initially stated that he did

not know the victim and had not been in Lynn recently. When

pressed, the defendant changed his story, admitting that he knew

the victim from jail and was at the scene of the robbery in

Lynn. As the jury could infer that the defendant's initial

statements were false, the judge did not err in giving a

consciousness of guilt instruction. See Commonwealth v. Vick,

454 Mass. 418, 424-426 (2009).

Judgment affirmed.

By the Court (Wolohojian,
Neyman & Shin, JJ. 3),

Clerk

Entered: December 20, 2023.

3 The panelists are listed in order of seniority.

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