Opinion
14-P-1795
11-06-2015
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, Michael Tremblay, was convicted of breaking and entering with intent to commit a misdemeanor, namely, larceny or trespass, and operating a motor vehicle while under the influence of intoxicating liquor (OUI), fifth offense. He appeals both convictions on the ground that the trial judge erred when she limited his cross-examination of a witness as to an issue that he claims was central to his defenses. Regarding his OUI conviction , he also challenges the sufficiency of the evidence against him. We affirm.
1. Limitation on cross-examination. A. Defendant's honest mistake of fact defense to larceny. At trial, the defendant sought to offer evidence to support his affirmative defense to larceny that he had made an honest, if unreasonable, mistake of fact as to whether he was entitled to enter the property of John Wojcicki, the neighbor of the defendant's deceased uncle, break a lock, and take a model airplane from Wojcicki's shed. The trial judge barred the defendant from questioning Wojcicki about a challenge, made by the defendant's father, to the uncle's will that had granted Wojcicki the property in question (including the shed contents). Defense counsel suggested that if Wojcicki had admitted that ownership of the property was in dispute by members of the defendant's family, it might have lent credence to the defendant's claim that he had made an honest mistake of fact as to his right to enter the property and take the model.
"It has been long established that 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." Commonwealth v. Liebenow, 470 Mass. 151, 157 (2014), citing Commonwealth v. Brisbois, 281 Mass. 125, 128-129 (1932). We conclude that some testimony regarding the will dispute was relevant, and cross-examination was therefore somewhat restricted on the issue whether the defendant honestly, though mistakenly, believed that he had a right to be on the property. See Mass. G. Evid. § 401 (2015). Accord Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004). We further conclude that the judge erred in not allowing the defendant to cross-examine Wojcicki on whether there was a will dispute.
Nevertheless, we hold that the admission of Wojcicki's response would not "have had a significant impact on the result of the trial," and thus the exclusion of that evidence did not prejudice the defendant by denying him the "right to present a full defense." Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978). See Commonwealth v. Jones, 464 Mass. 16, 19 n.5 (2012) (concluding that "a defendant is not necessarily deprived of the right to present his theory of defense simply because the judge excludes a piece of evidence supporting such theory [where] . . . the defendant's theory of defense was [otherwise] clearly presented"). Had Wojcicki confirmed the existence of a will dispute, such confirmation would only have been marginally more probative than the evidence the jury already had concerning the defendant's own justifications for his purported beliefs. One eyewitness to the defendant's encounter with Wojcicki testified that the defendant "believed that he had a right to be on that property because his family owned it." The officer who arrested the defendant testified that the defendant had reported to him that the property had once belonged to the defendant's grandfather, that there was an ongoing property dispute to decide whether the property would be "given to someone in the [defendant's] family or whether it had gone to [Wojcicki]," and that the defendant believed, therefore, that he "still had access to it." Additionally, Wojcicki testified that the defendant had claimed that because the defendant's family had once owned the land, the defendant believed "he had a right to be on that property and to do what he was doing."
We also conclude that the jury would have had "to divorce themselves of common sense" to "credit [the] defendant's honest belief [defense]." Liebenow, 470 Mass. at 161, quoting from United States v. Tejeda, 974 F.2d 210, 213 (1st Cir. 1992). It is true that even an unreasonably held belief that a defendant has a right to take property may be sufficient to defeat a charge of larceny if the finder of fact determines that the defendant's belief is an honest one. See Liebenow, 470 Mass. at 160, quoting from LaFave & Scott, Criminal Law § 88 (1972). Nevertheless, the finder of fact may still consider the degree of unreasonableness of the defendant's beliefs in determining whether they are truly honestly held or merely fabricated justifications for larceny. See Liebenow, 470 Mass. at 161.
In the instant case, there was compelling evidence undermining the honesty of the defendant's belief that he had the right to be on Wojcicki's property. There is nothing in the evidence presented or excluded that in any way suggests that the property was his, or that he had been given permission by anyone to break into the locked shed and remove the model airplane. His claim to the property was based on past family ownership. Furthermore, the evidence of the will dispute that the defendant sought to submit only tended to support the argument that the defendant's father, and not the defendant himself, may have had some claim to the property in question, and even then only if the will dispute was resolved in his father's favor. The fact that the defendant only chose to break in and remove the model airplane when he was intoxicated further undermined the honesty of any belief as to his rights regarding the property. For these reasons we conclude that the defendant was not prejudiced by the limitations placed on his cross-examination of Wojcicki regarding the will dispute. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) ("An error is nonprejudicial only '"[i]f . . . the conviction is sure that the error did not influence the jury, or had but very slight effect . . . ."'"), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
The will objection filed by the defendant's father only suggested that the defendant and the defendant's sister may have been "possible optional heirs" after the father. Also, the probate documents proffered by defense counsel mid-trial "were clearly excludable on the ground that they were neither authenticated nor certified, and in any event their admissibility was at the discretion of the judge and [she] did not abuse [her] discretion." Commonwealth v. Hubbard, 371 Mass. 160, 176 (1976). The defendant was entitled to present Wojcicki's testimony that there was a will dispute, but not the documents or the details thereof.
B. Defendant's waived claim of prejudice to his operating under the influence defense. The defendant claims for the first time on appeal that his OUI defense was prejudiced by the trial judge's bar on cross-examining Wojcicki about the will dispute. The defendant contends that Wojcicki's response could have undermined his earlier testimony that supported the charge that the defendant was operating under the influence. As the defendant made his oral motion in limine below solely to admit evidence in support of an honest mistake of fact defense to larceny, he waived his claim on appeal that, in the alternative, the judge's decision prejudiced his OUI defense. See Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 295-296 (2006), quoting from Commonwealth v. Lauzier, 53 Mass. App. Ct. 626, 633 (2002) ("A party 'is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to [the reviewing] court on a different ground"). "We review the defendant's claims, therefore, only to determine whether a substantial risk of a miscarriage of justice resulted from the [limitation on cross-examination]." See Commonwealth v. Rivera, 425 Mass. 633, 637 (1997), citing Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). Holding, as we do below, that there was sufficient evidence of the defendant's intoxication, and further concluding that any acknowledgment by Wojcicki of the will dispute would not have undermined the observations of the defendant that supported a finding that he operated under the influence of intoxicating liquor, there was no substantial risk of a miscarriage of justice.
2. The evidence was sufficient to support the operating under the influence conviction. A. Officer Reed's stricken statement. The defendant contends on appeal that there is a risk that the jury grounded its OUI verdict on insufficient evidence of his intoxication, and, in particular, that the jury relied on a statement Officer Reed made during cross-examination, namely that his conclusion that the defendant was intoxicated was based on several "factors," "some, [he could not] discuss."
Immediately after Reed made the aforementioned statement, even before defense counsel offered an objection, the trial judge ordered a sidebar which resulted in an order that Reed's "last comment" be stricken, and then she offered a firm curative instruction. "Jurors are presumed to follow instructions to disregard testimony." Commonwealth v. Qualls, 440 Mass. 576, 584 (2003), citing Commonwealth v. Cortez, 438 Mass. 123, 130 (2002). The instructions that were offered cured any potential prejudice caused by Reed's stricken statement. See ibid.
B. Sufficiency of the remaining evidence. We now consider the sufficiency of the remaining evidence supporting the defendant's conviction of OUI. "In determining the validity of a claim challenging the sufficiency of the Commonwealth's evidence at trial, we review the evidence in the light most favorable to the Commonwealth to determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). There are a variety of "factors that may support an inference of [the defendant's] diminished capacity to operate safely due to intoxication." Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994), citing Commonwealth v. Bryer, 398 Mass. 9, 10-11, 17 (1986). For example, a defendant's "bloodshot eyes, the odor of alcohol, . . . his admission that he had been drinking alcohol, and the discovery of a [partially-consumed] bottle of liquor in his vehicle" are all potential "evidence that the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely." Commonwealth v. Canty, 466 Mass. 535, 545 (2013). Some additional factors include a defendant's "belligeren[ce]" and evidence that the defendant was "unsteady on his feet." Sudderth, supra, citing Bryer, supra. In the instant case, testimonial evidence of all of these factors was presented against the defendant at trial.
The defendant's brief only attacks the sufficiency of the evidence that he was "under the influence of intoxicating liquor" rather than the other elements listed in G. L. c. 90, § 24(1)(a)(1). We accordingly confine our analysis of the evidence to that specific issue.
Additionally, Wojcicki offered testimony that the defendant appeared to have been "under the influence of something . . . [because] he was slurring his speech, his eyes were all bloodshot, and he just wasn't acting normally." Wojcicki's testimony here "was based on [his] observation of [the defendant's] demeanor and, essentially, constituted lay opinion that the defendant was intoxicated." Commonwealth v. Orben, 53 Mass. App. Ct. 700, 704 (2002). See Mass. G. Evid. § 701 (2015). In sum, there was more than ample evidence presented at trial from which a rational jury could have concluded beyond a reasonable doubt that the defendant had operated under the influence of intoxicating liquor. See Latimore, supra at 677-678.
Judgments affirmed.
By the Court (Kafker, C.J., Katzmann & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 6, 2015.