Opinion
10-P-1424
12-05-2011
COMMONWEALTH v. STEVEN R. BANKERT.
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
The defendant appeals from his conviction of larceny over $250. He argues that the trial judge erred in: refusing to grant the defendant a continuance so that he might retain an expert witness; allowing the jury to hear inadmissible hearsay statements; allowing a police officer to testify as an expert witness; and denying the defendant's motion for a required finding of not guilty on the larceny charge. For the reasons stated below, we reverse the defendant's conviction and remand the case for a new trial.
The defendant also was charged with vandalizing a water meter. The judge allowed the defendant's motion to dismiss this charge.
Background. The defendant is the owner of Laundry World, a laundromat located in Attleboro (city). On January 19, 2007, Steven Rodrigues, an employee of the city's water department, went to the laundromat to read the water meter. In the basement of the laundromat Rodrigues noted that the head of the water meter was reversed from its normal position. After speaking with his supervisor, Rodrigues returned to the laundromat later that day. Upon his return, Rodrigues noted that the head of the water meter had been returned to its normal position. Subsequently, after discrepancies in the readings were noticed, the defendant was charged with larceny over $250 and vandalizing a water meter.
After several continuances, this case was scheduled for trial on April 28, 2008. On that day, the Commonwealth provided the defendant with a hand-written document purporting to show the results of monthly inspections of the water meter. The defendant asked for a continuance so that he could retain an expert witness with regard to the monthly inspection document. The request was denied. The inspection notes were the subject of a disagreement between counsel; defense counsel disputed readings the prosecutor argued were correct. During the trial, counsel for the defendant sought to retain an expert from the company that manufactured the meter. On the second day of trial, defense counsel informed the judge that the expert was unable to appear the next day. The case was then submitted to the jury.
During the trial, the Commonwealth called as a witness Detective Brillon, a member of the Attleboro police department. Brillon testified that he had no experience with water meters except for the one present in his home. Brillon nevertheless opined that the water meter had been tampered with and, as a result of comparing the monthly inspection notes, he was able to formulate a high and low water usage by the laundromat for a twelve-month period. He then multiplied this figure by $3.27 per cubic foot of water used. From this analysis, he was allowed to testify that the laundromat had improperly taken over $3,000 worth of water from the city.
At oral argument, the Commonwealth argued that the defendant did not object to this testimony. The Commonwealth's position is not supported by the transcript, as the defendant clearly objected to Brillon being allowed to testify to the monetary loss.
Rodrigues and Richard Bennett, another city water department employee, were permitted to testify as to their conversations with others wherein they opined that the water meter had been tampered with. Neither water department employee was asked about the water usage figures.
Discussion. 'Generally, a witness may testify to facts observed by him and may not give an opinion based on those facts.' Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 137 (2002). A well-known exception to this rule is the admissibility of expert opinion once a legally sufficient foundation for the opinion has been presented. Commonwealth v. Lanigan, 419 Mass. 15, 25-27 (1994).
Here, Brillon was allowed not only to offer his opinion as to the monetary loss allegedly suffered by the city, but he was also allowed to testify, in effect, that the defendant was guilty of larceny. Such testimony should not have been admitted. There was no evidence of the basis for Brillon's opinion besides his vague description of comparing month-to-month water usage by the laundromat. Nor was there any evidence of Brillon's expertise in this field such that his opinion would be admissible as expert testimony. The admission of this evidence constituted reversible error.
Assuming that the month-to-month analysis showed a marked decrease in water usage by the laundromat, the link to the monetary value thereof is still missing as there was no basis for Brillon's mathematical computation of monetary loss by the city.
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Additionally, it also was error to allow Rodrigues and Bennett to testify to their out-of-court conversations wherein they both told others that the meters had been tampered with.
It appears, with the benefit of hindsight, that the judge should have granted the defendant's request for a continuance to allow him the opportunity to retain an expert. Because we are ordering a new trial in this case, the defendant will have the opportunity to do so.
Because there was sufficient evidence presented to the jury, albeit relying on the aforementioned inadmissible evidence, we need not reach the defendant's claim that the judge erred in denying the defendant's motion for a required finding of not guilty on the larceny charge.
Judgment reversed. Verdict set aside.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),