Opinion
10-P-2089
11-29-2011
COMMONWEALTH v. THOMAS A. LAYTON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a consolidated appeal from the defendant's conviction of receiving a stolen motor vehicle and from the denial of his new trial motion. The defendant contends that (1) the Commonwealth introduced insufficient evidence to prove that the defendant possessed a stolen vehicle, and (2) the judge erred in denying his motion for a new trial alleging that defense counsel rendered ineffective assistance in failing to mount a Miranda-based challenge to the defendant's statements. We affirm.
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence sufficed to establish beyond a reasonable doubt each element of the crime of receiving a stolen motor vehicle. The requisite elements of the offense are that: '(1) the motor vehicle is stolen; (2) the defendant possessed the motor vehicle; and (3) the defendant knew that the motor vehicle was stolen.' Commonwealth v. Aponte, 71 Mass. App. Ct. 758, 760 (2008).
The Commonwealth was not required to prove that the defendant intended to deprive the owner of the vehicle, because there was no evidence that the defendant had ascertained that the vehicle was stolen and intended to return it. See Commonwealth v. Garcia, 46 Mass. App. Ct. 466, 469 n.6 (1999).
The evidence and reasonable inferences clearly established that the vehicle was stolen. On October 21, 2008, William O'Connor of Fitchburg discovered that his red 1992 Ford F150 truck was missing and called the police. O'Connor did not know the defendant, had not given him permission to use the truck, and rarely allowed even friends to use it.
O'Connor had left the keys in the truck.
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The evidence and reasonable inferences also sufficed to establish that the defendant constructively possessed the vehicle, and did so with knowledge that the vehicle was stolen. On October 24, 2008, Ayer police Officer Matthew Callahan came upon two vehicles parked on the side of Central Avenue -- an older model red pickup truck and a red Hyundai. Callahan recognized the Hyundai as belonging to Joshua Corey, who was sitting inside that vehicle with his girlfriend. Callahan had seen Corey and his girlfriend at a Mobil station only ten minutes earlier.
The defendant was standing outside the two vehicles talking on a cellular telephone when Callahan pulled up. Callahan noticed a puddle underneath the red pickup truck and a gas can in the back of vehicle. The defendant, who was the only individual standing near the truck, told Callahan that his friends had just brought him some gas and that he was going to drive the truck away. Callahan's observations of recent fuel spillage around the gas tank opening, keys in the ignition, and the warmth of the vehicle to the touch (as though recently driven) corroborated the defendant's account. This evidence amply established that the defendant had the requisite knowledge, ability, and intention to exercise control over the vehicle to be in constructive possession of it. See Commonwealth v. Namey, 67 Mass. App. Ct. 94, 99 (2006).
Direct evidence that the defendant knew the vehicle was stolen was absent, as was the circumstantial evidence frequently found in these cases, such as a damaged ignition or steering column. Nevertheless, it is well established that the jury could reasonably infer the defendant's guilty knowledge from the recently stolen character of the item alone. The defendant's possession of a truck stolen only three days earlier from someone unknown to the defendant, and the absence of any authority granted by the owner to the defendant, sufficed to permit the jury to make the required inference. See Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 569 n.2 (2000), and cases cited (when defendant possesses 'recently' stolen property, 'possession alone is a sufficient basis for the jury to infer that he knows it to be stolen').
2. Motion for a new trial. We reject the defendant's contention that he was entitled to a new trial because his attorney rendered ineffective assistance of counsel in not mounting a Miranda-based challenge to the defendant's statements to Officer Callahan. The motion judge, who was also the trial judge, was free to discredit the bald assertions in the defendant's posttrial affidavit as entirely self-serving. See Commonwealth v. Garuti, 454 Mass. 48, 58 (2009). The defendant proffered no other basis for establishing that a motion to suppress his statements likely would have been successful. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
Even if we could assume that the defendant's statements to Callahan were the product of interrogation, and were custodial, see Commonwealth v. Smith, 456 Mass. 476, 478-479 (2010), and further, that Miranda warnings were not given, there was an obvious tactical benefit to the defense in foregoing a Miranda-based challenge, for it enabled the jury to hear the defendant's disclaimer of knowledge that the vehicle was stolen without having the defendant testify and expose himself to cross-examination. See Commonwealth v. Hunt, supra at 567. Indeed, defense counsel called the defendant's denial to the jury's attention in closing argument.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Grasso, Smith & Meade, JJ.),