-: SJC-13699, Commonwealth versus Boyd-McCollins.
-: Hi, okay, Attorney Zdravsky.
-: Yes, good morning, Attorney Matthew Zdravsky
here on behalf of Boyd-McCollins
and with me is Attorney William Sprouse,
District Court Counsel.
So I'll get right to it.
Essentially here, the probative value
of the evidence of the prior felony conviction
was not outweighed by the risk
of unfair prejudice of proactively admitting that evidence.
It's important to note here,
this is inherently prejudicial evidence
that we are letting in, and in this case,
letting in right in the prosecutor's opening statement,
T, called the defendant a convicted felon.
And so if we allow the Commonwealth
to introduce this evidence to prove
that one doesn't have a firearms license,
I think that it would be in their interest
to do this in every single case
where they had a felony conviction previously,
no matter what for.
So this would sort of eliminate the need
for any CJIS evidence in that sense.
And so the propensity reasoning is sort of baked
into the prior felony conviction.
We can see this, he called him a convicted felon,
but I think there's this issue of the jury
not understanding what exactly a felony is.
And so I think the most common sort of feeling
about felony is the term serious felony.
And so if someone hears that someone
has been convicted of a felony-
Judge: What about a felony murder case?
-: Yeah, felony murder case, exactly.
I think murder- -: It doesn't help you.
The felony murder example doesn't help you, right?
'Cause in felony murder, we let the felony in, right?
-: Well, I mean, in that case, but it's also,
that's part of the elements of the case there.
And so-
-: But what about bad act evidence?
'Cause the judge did the balancing,
and I know you have a issue which we'll talk about
on the words you use in the Creighton standard.
But here, the judge did the balancing,
said that this was more probative
because it's not an absence of a license,
it's an exclusion to get a firearms license,
and then gave a model jury instruction
on probative value, I mean, on propensity.
How is this different from a bad act evidence issue?
-: Well, I think that there's this,
it's sort of languished, a little bit borrowed
from Old Chief, but I think that with a bad act evidence-
-: Old Chief has two equals, right?
Old Chief has two equals.
-: I'm not sure what you mean. -: Two equally,
the government has at its fingertips
two equally probative ways to prove it,
and it picks the prejudicial one.
Here, the judge said it's not as, they're not equals,
because it's the absence of a license
versus a legal impediment to get a license.
-: Right, well, I don't think the absence of a license
is particularly, in any sense, weaker.
I think that's more or less what the Commonwealth
has to prove in the first place.
And so, I think, to get to your point
about the bad acts evidence, I think that a prior bad act
would have some sort of direct connection
to whatever the Commonwealth's story
they're trying to tell at trial.
And so they're trying to develop a narrative,
and they get a lot of leeway to bring in
whatever they want to do, and so they'll pick
the most prejudicial bad act that's connected
to the issue and the concrete facts
of what they're trying to prove at trial.
And so here, this is a felony conviction
that isn't connected to any of the narrative
that they were trying to tell about what happened that day,
how did he possess a firearm.
None of those facts had any bearing,
or the felony conviction had no bearing on those facts.
And so it's sort of existing in isolation.
-: But it's not, because it is part of the story.
So one of the things that Judge Cowan does
is she redacts the nature of the underlying felony.
I mean, you wouldn't be standing here and saying,
if the predicate felony that disqualified him
was a previous unlawful possession of a firearm,
and that's in the same neighborhood
as what he's charged with now,
that that would be a more appropriate
prior felony to introduce.
That's the whole point of why Old Chief says what it says.
But in this case, what's also different from Old Chief
is Judge Cowan asked Attorney Sprouse, will you stipulate?
And rightfully so, he made a determination
that I'm not gonna stipulate.
That was the crux of the issue with Old Chief.
So in this case now, the Commonwealth has different ways
that they can go about proving
that he's a disqualified person.
You heard all of the conversation from the last case.
You were here in the courtroom.
You can't just say they can call C
just because the panel has told you.
We don't know when the point in time of no record.
It's in perpetuity.
There's all kinds of limitations to it.
So what's not apt about Judge Cowan's view
that this is based on the balancing
and all of the issues that might be present with CJIS.
Why shouldn't they be allowed to do this?
I just don't see what else are they supposed to do?
They redact the name of the underlying felony.
They don't say it's receiving stolen property.
They just say it's a felony.
You have to take it that it's a felony.
-: Right, well, I think there's multiple things there.
So I think the fact that they redacted it
doesn't actually help any defendant
'cause we're still calling him a convicted felon.
And so that he was previously convicted of a felony,
it doesn't almost matter what that felony was for.
Judge: Well, the judge gave an extremely robust
limiting instruction, did she not?
Repeatedly.
-: Right, to some extent.
But I think then that limiting instruction
also then definitely solidified
that he was a convicted felon.
And I think it goes to kind of that risk
of unfair prejudice where this is got a risk.
It is inherently prejudicial evidence,
evidence of a prior conviction
that we are now just letting in.
And so that kind of goes to that point.
-: Well, do you have a strong case for the proposition
that what's your best analogy
that for finding the judge's
limiting instruction insufficient here?
-: I'm not sure that the judge's,
I don't think that we should be allowing
this evidence in at all.
So I don't know that the judge's limiting instruction
was insufficient, but I didn't really make any arguments
about the sufficiency of that limiting instruction
'cause I think we shouldn't have gone down that path
in the first place.
So I don't know that any limiting instruction
in this case would suffice.
-: Is your argument that the government
should just never be able to prove lack of licensure
by proving a legal impediment to licensure?
Or is your argument that the government
should not be permitted to prove lack of licensure
by the legal impediment of prior conviction for a felony?
-: I think I would say by prior conviction for a felony,
although I think I understand the nature of your question.
I think it would be sort of prejudicial.
The same argument does apply to if someone was a minor
or things like that.
-: Right, I can't see, that's what I'm trying to get at.
If the legal impediment was age.
-: Yeah, I think that there's less risk of unfair prejudice
about the age where a convicted felon
or evidence like that.
I don't think there's any case out there
that says age is inherently prejudicial.
-: So we would have a special rule just for cases
where the legal impediment is prior conviction?
-: I believe so, yes.
-: But don't we already?
It's a different balancing test.
-: Right.
-: So don't we already?
And here, the judge thoughtfully and carefully,
I understand you can quibble with the rubric that she used,
but she very carefully listened to Attorney Sprouse,
the concerns, and listened to the DA,
particularly with the issues of the numbers of folks
who were able to give CJIS-type testimony
and the limitations of those folks,
which is part of the calculus,
and made a determination and exercised her discretion
to allow it in with the guardrails that she did.
-: I would say that the Commonwealth
had three months since Guardado,
so I think that there was time to properly get CJIS
up and running or obtain CJIS evidence.
This wasn't a week later, this was months later,
and it's laid out in Loewe's concurrence exactly,
some methods that the Commonwealth could use
to prove this lack of licensure.
So I don't know that it was a particular-
-: That concurrence isn't the full universe
of all of the things that could go.
Guardado was just decided it was a concurrence.
These things get puzzled out over time.
That was just one, it wasn't exhaustive.
So this is another one that the government
could another arrow in the quiver.
We're trying to figure out from you is,
why with everything that Judge Cowan did here
in the exercise of her discretion,
that this was somehow wrong?
-: Well, I think that there's an issue going on too
right now where there's a split in the lower court
where I identified that in the direct appellate application
where certainly some judges are coming out on the side
that this is not okay to admit evidence of a prior felony
to prove this lack of licensure, and some are.
But I don't know that the calculus is any different
for any of those judges in this.
It's a fairly abstract question
that I think is the same in all of these cases.
Judge: You're essentially saying
you have to use CJIS, right?
That's your argument, right?
-: Basically, yes. -: As a matter of law,
it's an abuse of discretion
to admit a prior conviction.
-: Proactively admit a prior conviction.
-: To prove lack of licensure.
-: Yes, I think that's more or less what the law should be.
I would briefly turn to the sufficiency of the evidence
that came in then at trial.
-: Just to take that one step further,
given the problems we heard in the other case,
what is the minimum that's required then?
Do you have to have the date
of birth and the name accurate?
Is that, if they actually get the name,
the date of birth accurate, then that's fine
and we can move on here, or?
-: We're talking about CJIS.
-: Yeah, well, you're pushing us into CJIS,
Justice George's question in the last case is,
we need to have some practical solution to this problem
because we've gotta, if we know someone's not licensed,
we have to be able to prove it,
meaning the Commonwealth has to be able to prove it.
And you're saying the only way they
can prove it is CJIS
and I'm just trying to figure out what your,
it's the Commonwealth's problem, I take it, at that point.
-: I would think that the name and complete date of birth
would be sufficient if we have some evidence
of where that's coming from.
-: On the sufficiency prong, we have Exhibit 26
with the date of birth on it.
-: Yes. -: And I take it
your complaint is that the police officer
says, "Well, he told me the date of birth
was the next day."
Leaving the date, right, the year of birth as the issue,
correct?
-: Yeah, we have Exhibit 26,
which has the name and a complete date of birth
with the year.
And then at trial, all we have is the defendant's statement
that tomorrow's my birthday,
which would be the same, July 11th, I believe.
But he doesn't say what year he was born.
-: So these are, again, adjudicatory facts.
They're like atrocity and cruelty, right?
They're proof to get to an element.
Is the government entitled to an inference
or we look at this in the light most favorable
to the government in this inquiry?
-: Sure, yes, but I still think in that light
most favorable to the government,
without a year with a common last name,
that there's not sufficient evidence
that Mr. Collins at trial was the same Boyd McCollins
in that criminal complaint,
that evidence that was admitted.
Judge: When was the trial?
-: Trial was in July of 2023.
Judge: And your client was present?
-: He was at trial, yes.
Yeah, I think none of the other evidence
in that docket from 25 years ago
was particulate evidence.
We don't, his hair color, his eye color,
these are fairly generic descriptors
that I don't think could particularly
narrow down that pool.
And so without that year,
I don't think there was sufficient-
Judge: What about the name?
-: Well, the name, he's got a somewhat uncommon first name,
but the last name is common.
And I don't know that the sufficiency
can necessarily hinge on if the name is common or not,
'cause how do we know what a common name is?
And I think too important to note here
that certainly the Commonwealth was well on notice
that it was their burden to introduce sufficient evidence
that Boyd McCollins did not have a license.
And so I think that's why this court
should enter a not guilty verdict,
because certainly they were on notice
and then they failed to do so.
If there are no further questions,
I'm happy to rest on my brief.
-: Okay, thank you. -: Thank you.
-: Attorney Martino.
-: Good morning, Your Honors.
May it please the court, Elizabeth Martino
on behalf of the Commonwealth.
The Commonwealth is asking that the court affirm
the defendant's convictions in this case
because the admission of the prior felony conviction
to prove lack of licensure was not unfairly prejudicial.
I think the court in discussing with opposing counsel
the prior bad act evidence and Judge Cowan's weighing
has sort of talked about my first point,
which was that the trial judge did appropriately weigh
under this court's prior bad act jurisprudence,
the probative value versus the risk of unfair prejudice.
So I wanted to sort of turn to my second point,
which is this Old Chief discussion
and the intersection of the government
having the burden of proof and burden of persuasion
and being entitled to prove its case
with the notion of a defendant entering into a stipulation.
So Old Chief is the U.S.
-: Take the whole problem.
You've got three choices, right?
You either enter a stipulation, you enter the conviction,
or you enter the CJIS information, right?
-: Yes, Your Honor. -: And I think his argument
is there's a felony conviction
significant to a jury and has a prejudicial effect.
You have to do CJIS 'cause you can't make me stipulate.
That's his argument.
Why don't you address that?
-: Yes, so actually I think Old Chief
is very much on point for that discussion.
Old chief is the U.S. Supreme Court case
discussing the statute of a felony
in possession of a firearm.
And Old Chief reemphasizes the age-old principle
that the government, with the burden of proof
and the burden of persuasion,
may introduce as full evidence as possible to a jury
to provide context and prove every element
beyond a reasonable doubt.
For that reason, the government cannot be forced
into stipulating on an element or a fact
or agreeing to an admission by the defendant
when the government is entitled
to provide contextual evidence to the jury
to give it a full picture,
except in this very limited circumstance in Old Chief
where it's a prior felony
or a felon in possession of a firearm
and the felony status doesn't really matter.
There doesn't need to be context.
It's just yes or no, is he a felon?
Only in this limited instance,
if a defendant wishes to stipulate,
must the government so stipulate.
-: But again, I haven't re-read Old Chief in a long time,
but they're saying there's an alternative
way of doing this.
I'm not saying, their problem is they're saying
it's a matter of law, you should do this,
but there's an obvious problem with the felony conviction.
It's prejudicial.
How prejudicial when there's another way of doing it
which is within the Commonwealth's power,
which is to use CJIS and do it correctly?
-: So a couple of answers.
First, I really would encourage the court
to look at Old Chief again and read it
because it does, I think, lay out a great structure here,
which is that the government usually
can provide all the contextual information,
except in this limited circumstance
where it may be forced,
may have to agree to this stipulation.
But if the defendant doesn't want to stipulate,
which is what happened in this case,
then the government has the opportunity
to present the case however it wants, right?
And that's the law.
So in this case, the government, the prosecutor,
and the judge offered the defendant
an opportunity to stipulate,
which would have ameliorated all prejudice.
They could have come up with a stipulation
that's just this man is not licensed.
And then gone on to the bigger issues,
which was did he possess the firearm,
was he guilty of the shooting, right?
And that's not an impossible situation
because the truth is, the undisputed fact is,
this defendant did not have a license.
And he did not have a license
because he was a prohibited person
under the statute, a felon.
So to tell him, listen, we have two ways to prove this.
Either we can admit the prior felony
with redactions and appropriate limiting instruction
to show that you are unlicensed and a prohibited person,
or you can stipulate and ameliorate all prejudice.
Of course, he had the opportunity
to not stipulate, which he chose,
but that means that the government,
with its burden of proof and burden of persuasion,
had the opportunity to introduce relevant material evidence
so long as it wasn't unfairly prejudicial.
And that's what the government had to do here
because the defendant refused to stipulate.
So that's really the state of the law.
And if the court, I think Old Chief is a great framework,
the court could issue a decision that says,
usually we are reaffirming this age old principle
that the government has the burden of proof,
burden of persuasion, and can admit contextual,
relevant material evidence as it needs to
to prove each element, but in licensure cases,
if the defendant wants to stipulate,
then the Commonwealth can be forced to stipulate.
-: But so does that mean if the CJIS information
is available and obviously the felony information
is available, the Commonwealth can use
whichever one it wants?
-: Absolutely, Your Honor.
There's no necessity requirement in the Commonwealth
that the Commonwealth has to look at all the evidence
and grade it and then introduce the least prejudicial.
And in fact,
this court said in Commonwealth versus Company,
which I cite in my brief that that requirement
does not exist and it stated emphatically
that there's no requirement when looking, for example,
at prior bad act evidence that the Commonwealth established
that there's no other evidence
but the prior bad act evidence,
nor should a judge look and ask the Commonwealth,
"Well, do you have any other evidence?"
I'd like to just zoom out for a minute
and give an analogous hypothetical.
If, for example, there's a crime that's caught on video
and the Commonwealth proffers the video to say,
"Here's our best evidence.
"This shooting was captured on video in an aerial view."
And the trial judge says, "Well, that's really prejudicial.
"You could prove the case circumstantially, Commonwealth.
"Why don't you do that?"
It's just not a thing.
It's not a requirement that when we have the best evidence
and we proffer that to the court-
-: That's the evidence of the crime
as opposed to, there's a difference here.
That's the best evidence of the crime.
The licensure is a little different, isn't it?
-: Well, I fail to see how that's true, Your Honor.
I mean, this is an element, lack of licensure,
and here there's two ways to prove it.
Either that the defendant is a prohibited person
under the statute,
i.e. that they're too young to possess a license,
or that they have another thing like a prior felony
which makes them ineligible, or licensing, right?
So you get a CJIS witness in,
or somebody, it's up in the air still
as we saw from the prior case.
The first is the most accurate.
This is per se, he is not eligible for license.
And so when we have that evidence,
we're entitled to prove it.
He's a prohibited person.
Bruin and Guardardo did not create some entitlement
to a defense that doesn't exist.
If the defense is not raised on the facts,
like self-defense, if it's not raised on the facts,
you can't raise it.
Here, if the defendant is not licensed,
he doesn't get a licensed defense.
Do you know what I mean?
Judge: But that's an element of the government's-
-: Of course, that we have to prove
he had a reasonable doubt
which we're doing by showing that he's a prohibited person.
He doesn't get to say-
-: So the analogy, I guess, is unpersuasive to me
because self-defense is a defense
whereas this is an actual element of the crime.
-: Right, and I can move on from that
if it doesn't seem persuasive, but-
-: Help me address one thing.
Because the real concern here is,
and I'm with you, that I get a little bit nervous
when we start to say that we're gonna curtail
a trial judge's discretionary evidentiary decisions
when they're the ones right there on the ground.
But do we wanna have a situation
where it's allowed in one case
and another superior court or community court judge says,
"I'm not gonna let you do it
"and you've gotta do the CJIS thing."
And then you've got in the CJIS thing
all these embedded kind of cross-examination fodder
that you don't have when you have it.
And you might have very disparate outcomes
on what could be the same set of facts.
How are we supposed to give some certainty
or some guidance where, what would you suggest with that?
Because that's a big deal.
-: Absolutely, Your Honor, and thank you
because I think this court has a great opportunity today
to give clear guidance to the trial judges
across the Commonwealth on what is admissible
and what is not.
And I think that the answer should be this,
that the Commonwealth, as always,
is entitled to present its case
with material and relevant evidence
that's not unfairly prejudicial.
It can include that the defendant
is a prohibited person under the statute,
either that they're too young
or that they have a prior felony conviction.
How that evidence comes in can either be
through a certified conviction
or some record of the defendant's age,
or if the defendant wishes to stipulate
to the prior conviction, then it can come in that way.
And there's a rule of criminal procedure
that says if the defendant, it's Rule 23,
if the defendant wants to stipulate to an element,
he can do so, and it has to be in writing
and presented to the jury.
So that's right written into the rules.
-: Isn't that gonna present just the differential treatment
that Justice George has presented,
but I think you want something more.
You want basically the choice limited to two things,
because no DA is going to use CJIS
if it can use a conviction of a felony, right?
So you're, you are simplifying,
you're addressing Justice George's problem,
but you're creating another one,
which is in every case involving someone with a felony,
the Commonwealth should certainly go this way
because you not only prove the license,
but you also have that additional element
that you're doing with a felony that
you throw into the case.
-: But respectfully, Your Honor,
as was evidenced on this record,
the trial prosecutor at every turn
was trying to be as reasonable as possible
and offered to stipulate and said, you know,
listen, I don't need to get any of this in.
We can just say, you know, figure out a way
to say lack of license without using anything.
And I think if this court,
you have the opportunity today
to tell practitioners and judges,
this evidence is admissible,
or the defendant can stipulate
when they are a prohibited person,
or there can be this CJIS evidence, right?
So there are-
-: But there's also the licensing authority.
I mean, this is a city of Boston case, right?
So, you know, they could get the designee
from the chief of police to come in.
He testifies all the time
on denials of license applications.
So why couldn't he come in?
Why couldn't he be summonsed in
just like any other witnesses
you heard from the other side,
the state police or the local licensing authority?
Why couldn't they just do that?
-: So I wanna just,
I'm not prepared to answer that question exactly.
I think that, yes, of course the Commonwealth can.
I wanna just sort of go back
to whether the Commonwealth is required to.
And I think the answer to that emphatically is no.
I think the Commonwealth has various ways
to prove its case.
And I think that this area of the law
just does not require that the government
be restricted from this material relevant
and not unfairly prejudicial evidence, right?
Which is to show that the defendant is a prohibited person.
-: Do you agree that given the inherent prejudice
to introducing a prior conviction
that it shouldn't come out in
without certain guardrails?
-: 100%. -: Okay, and what should
those guardrails be?
-: Those very guardrails that were used in this case.
I think this is actually a,
as close to perfect record as you can get
for the way that this evidence came in,
which is that following exactly
the prior bad acts jurisprudence
that this court articulated in 2023
and Samia in footnote eight that I cite in my brief,
the proponent, which was here the prosecutor,
offering the evidence, the prior bad act evidence
has to articulate a non-propensity purpose,
which they did.
The judge then has to consider that non-propensity purpose,
the probative value of that non-propensity purpose
then has to measure that
against the risk of unfair prejudice,
including what if any jury instructions
can appropriately explain to the jury
how they can and cannot use the evidence
and whether those jury instructions
are likely to be followed.
And I think that is indicated
where the probative value is very high
and that the jury-
-: Don't you think that a limiting instruction
would be mandatory?
-: Yes. -: Okay, and then
don't you also think
that the date of the conviction,
prior conviction must predate
the date of the current offense?
-: Yes.
-: And don't you also think that some,
that the nature of the prior conviction,
like what the crime was,
either should be redacted
or somehow otherwise not apparent to the jury?
-: I think that's on a case-by-case basis.
I think as a general proposition, yes.
I think it depends in some ways what's available.
So in this case,
we had a very old remote felony conviction
that was for receiving stolen property.
So it was the most different than this instant crime.
In this case, the defendant didn't want
the nature of the crime in at all, which was fine.
I think it would have been fine if it wasn't
because it was so different.
But I think as to that-
Judge: You can take a prior firearms conviction.
-: Right.
-: I mean, the prejudicial value of that is extremely high.
-: Right, so I think in that case, there's two options.
One, and this is why it has to be sort of case-by-case,
but I think regardless, the starting point,
it's admissible.
This evidence is admissible as a matter of law.
But then it's a case-by-case basis
where the parties and the judge have to consider
the remoteness, the type of crime,
and then ameliorate prejudice as that case requires.
So whether that's redactions of the actual nature
of the crime or even how recent it was,
or as always, and I wanna reiterate,
the defendant can stipulate.
It is not an impossible choice.
Where this evidence is relevant, admissible,
and not unfairly prejudicial
because of the appropriate limiting instructions
and redactions to ameliorate prejudice,
the defendant is not placed in an impossible situation
where the Commonwealth says,
"Listen, or you can just completely stipulate,"
and none of this comes in.
That is fair.
I don't know if the court has any other questions
or wants me to address sufficiency of the evidence.
Judge: No, we're all set.
-: We're all set, okay. -: Thank you.
-: Then the Commonwealth rest on this brief. Thank you.