Opinion
14-P-1717
03-14-2016
COMMONWEALTH v. PATRICK K. FULLERTON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Patrick K. Fullerton, appeals from convictions in the District Court of two counts of larceny, one of property exceeding $250 in value, and one of property equal to or less than $250 in value. See G. L. c. 266, § 30(1). He argues (1) that the judge erroneously instructed the jury on the specific intent required for larceny, (2) that the evidence of larcenous intent was in any event insufficient, (3) that the prosecutor elicited false testimony, and (4) that the prosecutor misstated the evidence in closing argument. We affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found that the defendant and his brother on two consecutive days in late September, 2011, drove a pickup truck onto a property in Wilmington owned by Paul Godzyk, Sr. Godzyk, Sr., rented portions of the property to various contractors, including Babineau Foundations, a former employer of the defendant, for equipment storage. On the first day the defendant took away items including a landscape trailer valued between $1,000 and $2,000, and three hot water tanks worth $100 each. The defendant sold some of these items for scrap. On the second day he loaded two steel I-beams, which were valued at $300 each, onto his truck.
Paul Godzyk, Jr., caught the defendant before he carted away the I-beams and telephoned the police. Wilmington police Detectives Michael Patterson and Brian Stickney responded. The defendant told Patterson that he had permission from an employee of "Babineau" to take items from the property because "the place needed to be cleaned up."
On direct examination, Patterson testified that the defendant said he had permission from Reggie Babineau. On cross-examination, defense counsel showed Patterson his report, in which he had written that the defendant said he received permission from an employee of "Babineau." Patterson agreed with defense counsel's correction, stating, "I misspoke."
Several weeks later, on October 25, 2011, Stickney went to the defendant's home to question him further about items missing from the Godzyk property. The defendant admitted that he took the items, but explained that he and his brother had spoken with "Reggie Babineau, who they used to work for, who also stores property on that yard, and he had told them that Mr. Godzyk, Sr., had passed away and that the place needed to be cleaned up. And they took that as permission to go in there and take the things out of there." In fact, Godzyk, Sr., was still alive at the time. Reggie Babineau, the owner of Babineau Foundations, testified that the defendant worked for him as a laborer in the late 1990's. At that time, Babineau rented the Godzyk property for storing equipment and parking trucks. Babineau had not spoken with the defendant since Babineau had laid him off years earlier, and Babineau denied ever giving the defendant permission to take things from the property.
According to Godzyk, Jr., his father died in 2013.
Additional evidence is discussed in connection with the jury instruction issue.
Discussion. 1. Jury instruction. On the issue of the defendant's intent to steal, the judge instructed the jury, "If the Defendant took another person's property in an honest and reasonable belief that he had a right to it, this is including by abandonment, then you must find the Defendant not guilty, even if that belief was in fact mistaken because the Defendant lacked the intent to steal" (emphasis supplied). The inclusion of the words "and reasonable" was error. See Commonwealth v. Liebenow, 470 Mass. 151, 160 (2014) ("an honest belief need not be objectively reasonable to negate the specific intent required for larceny"). We must determine whether the error requires a new trial.
The trial was held on April 1 and 2, 2014, prior to the Liebenow decision, which was released on November 25, 2014. A divided panel of this court had approved the instruction given by the trial judge in a 3-2 decision issued on October 17, 2013, 84 Mass. App. Ct. 387 (2013), but the Supreme Judicial Court allowed the defendant's application for further appellate review on November 21, 2013, 466 Mass. 1109 (2013). The Liebenow appeal was thus pending at the time of the defendant's trial.
a. Standard of review. The defendant failed to object to the instruction as given. He nonetheless contends that he preserved the issue by requesting the correct instruction both in his written requests and during the charge conference. We disagree. The defendant never brought to the judge's attention his current objection to the "honest and reasonable belief" formulation. Contrast Commonwealth v. Matus, 394 Mass. 563, 565 (1985) (Although defense counsel did not "formally object," he brought his request for instructions "to the judge's attention before the jury retired to deliberate"). In fact, twice during the charge conference, the judge referred to "honest and reasonable belief," and defense counsel did not express any objection to this language. To the contrary, defense counsel said he thought the language was "appropriate." "It is a fundamental rule of practice that where a party alleges error in a charge he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity to rectify the error, if any." Commonwealth v. McDuffee, 379 Mass. 353, 357 (1979). Accordingly, we review only to determine if the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Reid, 384 Mass. 247, 258 (1981).
b. Analysis. Where the defense of mistaken belief is raised, the Commonwealth must prove beyond a reasonable doubt that the defendant did not honestly believe that the allegedly stolen property was abandoned (and, on the facts of this case, that he did not honestly believe he had the owner's permission to take it). Liebenow, supra at 161 n.15. Simply put, the jury must acquit if they conclude the defendant honestly held such a belief, regardless of whether the belief was reasonable. Conversely, they must convict if they conclude that the defendant did not genuinely believe he had a right to take the property. The erroneous instruction in this case provided a third option: the jury were instructed (incorrectly) to convict, even if they concluded that the defendant sincerely believed the items on the Godzyk property were his for the taking, if they also concluded that this sincerely held belief was not objectively reasonable.
"A defendant has sufficiently raised the defense of mistaken belief 'if any view of the evidence' would support a factual finding that the defendant honestly believed that the items he took were abandoned." Liebenow, supra at 156, quoting from Commonwealth v. Vives, 447 Mass. 537, 541 (2006). The defendant's statements to the detectives that he had permission to take items from the property because "the place needed to be cleaned up" was sufficient to raise the defense.
See Liebenow, supra at 160 n.11, quoting from Anderson, Wharton's Criminal Law & Procedure § 456, at 90-91 (1957) ("The defendant is not guilty of larceny if he has acted under a bona fide belief that a person giving him permission to take the property had authority to do so").
In Liebenow, supra at 154, for example, the defendant testified that he believed that the items he was accused of stealing from a construction site "had been abandoned and did not belong to anyone." The Commonwealth countered that even if the defendant's belief was honest, it was not reasonable given that the items were hidden and the site was marked with several "no trespassing" and "private property" signs. Id. at 153, 156. The judge, sitting without a jury, erroneously concluded that the defendant's subjective belief was irrelevant. Id. at 156.
We find no substantial risk here that the jury might have convicted the defendant based on the conclusion that he honestly, but unreasonably, believed the property was abandoned. The defendant did not testify. The only evidence of what he actually believed came from his statements to police officers that he had been told he had permission to take whatever he wanted from the property. The defendant called as witnesses two town officials who discussed their efforts to get the Godzyks to clean up their property so it would comply with health and building regulations. Through direct examination and argument, defense counsel suggested that the items on the Godzyk property appeared abandoned and that the defendant's cooperation with the police proved that he honestly believed he had done nothing wrong.
Defense counsel argued in summation that "[t]here's an appearance that the property is in fact abandoned junk"; that "there were factors present that would demonstrate that somebody might believe and mistakenly, that this property is abandoned property"; and that the facts "would cause somebody the perception to believe that in fact this was abandoned property." This was not an appeal to the jury to conclude that the defendant subjectively believed that the property was abandoned. Rather, defense counsel was arguing why such a belief would be objectively reasonable. "Evidence of reasonableness may . . . be considered by the jury to assist in their determination whether to credit a defendant's honest belief." Liebenow, 470 Mass. at 161. Defense counsel may not have perceived any error in the judge's instruction because it was completely compatible with his chosen defense.
The Commonwealth's response was that the defendant's asserted belief was incredible, not that it was unreasonable. The prosecutor stressed that the defendant made false and inconsistent statements to the police detectives. In addition, the prosecutor argued that the jury could infer from the defendant's employment with Babineau Foundations that he knew the Godzyk property was rented by businesses to store their supplies and equipment. In other words, he knew from experience that the items on the property were not abandoned. We perceive little, if any, risk that the jury mistakenly convicted the defendant because they thought he held a sincere, but objectively unreasonable, belief that the items he took were abandoned or that he had permission to take them.
2. Sufficiency of the evidence. The evidence at trial permitted the jury to rationally conclude that the Commonwealth proved beyond a reasonable doubt all of the essential elements of the crime of larceny, see Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27 (2003), including specific intent. Although "the specific intent to steal is negated by a finding that a defendant held an honest, albeit mistaken, belief that he was entitled to the property he took," Liebenow, 470 Mass. at 157, the jury could infer that the defendant made patently false and inconsistent statements to the police, proving that he did not honestly believe he had the right to take items from the property. Furthermore, his false statements were powerful evidence of consciousness of guilt, which contributed to the Commonwealth's proof of his intent. See Commonwealth v. Namey, 67 Mass. App. Ct. 94, 100-101 (2006).
3. Other issues. We reject the defendant's claims of prosecutorial misconduct. The two detectives obtained slightly different statements from the defendant. He first told Patterson that he received permission to remove items from the property from an employee of "Babineau," and the defendant later told Stickney that he received permission from Reggie Babineau himself. We do not perceive that the prosecutor intentionally procured, failed to correct, or capitalized on false testimony from Patterson. See Commonwealth v. Forte, 469 Mass. 469, 490- 491 (2014). Patterson candidly admitted on cross-examination that he "misspoke." See note 1, supra.
In closing argument, the prosecutor accurately recounted Stickney's testimony (quoted in the background section, supra) when he argued that the defendant "said that Reggie Babineau gave him permission to go onto this land and to take these items. He said because he thought that Mr. Godzyk, Sr. had passed away and someone needed to clean it up."
Judgments affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: March 14, 2016.