Opinion
17-P-1434
06-04-2019
COMMONWEALTH v. SEAN P. CLANCEY.
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
After a jury-waived trial, the defendant, Sean P. Clancey, was convicted of one count of larceny over $250 by single scheme based on his embezzlement while employed by Northeast Overhead Door Company (Northeast). On appeal, the defendant argues that (1) the evidence presented at trial was insufficient to support the conviction, (2) the judge abused his discretion in excluding evidence of witness bias, and (3) the judge erred in sua sponte reconsidering his earlier denial of the Commonwealth's motion to amend the complaint. For the reasons below, we affirm.
At oral argument, we were informed for the first time that the defendant had defaulted and was in warrant status. According to the amended status report filed by the parties at our request and pursuant to Mass. R. A. P. 22 (c) (2), as appearing in 481 Mass. 1652 (2019), the defendant has removed the default.
Discussion. 1. Sufficiency of the evidence. We review the evidence in the light most favorable to the Commonwealth to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Larceny under G. L. c. 266, § 30, is proved where the Commonwealth satisfies the elements of any one of three formerly separate offenses: larceny by stealing, embezzlement, and larceny by false pretenses. See Commonwealth v. Mills, 436 Mass. 387, 391-392 (2002). Here, the Commonwealth introduced evidence that the defendant used his position as office manager to access Northeast's bank accounts in order to write unauthorized checks for his personal use, including checks to himself and checks payable to "cash," and to manipulate Northeast's "Quickbooks" accounts in order to conceal the actual payees of those checks. The fact finder could also find that the defendant misused the authority entrusted to him regarding payroll to overpay himself from Northeast's funds. That evidence was sufficient to allow a reasonable fact finder to find beyond a reasonable doubt the elements of larceny under either a theory of larceny by stealing (checks) or of embezzlement (checks and overpayment of wages).
The evidence of the defendant's writing of checks and altering the corresponding records over a period of months, and of repeatedly paying himself above his authorized wage rate for successive pay periods, was sufficient to show the ongoing intent to steal required for a "scheme." See Commonwealth v. Murray, 401 Mass. 771, 774 (1988) (larceny by stealing scheme). Cf. Commonwealth v. Moreton, 48 Mass. App. Ct. 215, 217-218 (1999) (embezzlement scheme). There was no error in the judge's denial of the motion for a required finding of not guilty.
2. Evidence of bias. The defendant next argues that the judge erred in excluding evidence of third-party statements he claimed showed Justin Guillemette's bias and motive to fabricate his claims against the defendant. We review the judge's evidentiary rulings for abuse of discretion. See Commonwealth v. Denton, 477 Mass. 248, 250 (2017).
The defendant sought to testify that a Department of Revenue representative suggested that if Guillemette, the owner of Northeast, reported that his business losses were caused by theft, Guillemette might obtain a "reprieve" from existing tax arrearages. This evidence, the defendant argued, was admissible to show Guillemette's later motive to fabricate a larceny claim against the defendant. The judge sustained the prosecutor's objection to the proffered testimony on the ground that any connection between the purported conversation and Guillemette's allegations against the defendant was unreliable and speculative.
Even if we were to assume the judge abused his discretion, we are persuaded that any error was not prejudicial. Cf. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). First, the evidence of the defendant's larceny was ample. See Commonwealth v. Barboza, 54 Mass. App. Ct. 99, 110 (2002) (error in excluding evidence of bias harmless in light of strong evidence of defendant's guilt). Second, much of the evidence of the defendant's thefts came in through the defendant's successor as Northeast's office manager, Deborah Levesque, and not through Guillemette, the allegedly biased witness. Third, the judge had rejected the proposed bias evidence as "speculation." Having heard and discounted what presumably was the defendant's strongest argument on bias as part of the defendant's offer of proof, there was no practical likelihood that the trial judge, as the finder of fact, would have credited the evidence itself if it were admitted, particularly as it have would have been subject to the Commonwealth's cross-examination. In sum, if there were error in the judge's preclusion of the proposed evidence of Guillemette's bias, we are confident that it would have had no effect on the verdict. See id.
3. Amendment of complaint. During the first day of trial the Commonwealth moved to amend the complaint to change the alleged dates of offense. The defendant objected to the amendment on the general grounds that he had made strategic choices in preparing his case, specifically about cross- examination of Guillemette and Levesque, based on the dates of offense as listed in the complaint. The judge denied the motion. On the third day of trial, acting sua sponte, the judge reversed his order denying the Commonwealth's motion to amend those dates. The judge offered the defense the opportunity to reopen the evidence in light of the amendment. The defendant declined that offer, opting instead to move for a mistrial, and for a new trial.
At the time of the Commonwealth's motion to amend, Levesque was being examined by the prosecutor. The defendant had not yet begun his cross-examination of her.
The motion for new trial was premature; the judge had not rendered a finding at the time that the defendant made it. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Powers, 21 Mass. App. Ct. 570, 572 (1986) (rule 30 addresses postconviction relief).
Pursuant to Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979), a judge may allow the amendment of a complaint if such amendment is one of form and not substance and does "not prejudice the defendant or the Commonwealth." See Commonwealth v. Domino, 465 Mass. 569, 575 (2013). It follows that a judge who has previously denied a motion to amend may reverse that order, provided doing so does not prejudice either party. We review the judge's ruling for an abuse of discretion. See Stranad v. Commonwealth, 366 Mass. 847, 847-848 (1974).
The amendment of the complaint in order to correct the inclusive dates of offense was, here, a matter of form. See Commonwealth v. A. Graziano, Inc., 35 Mass. App. Ct. 69, 74 (1993). The range of dates of offense in this case is not an element of the offense with which the defendant was charged. See Commonwealth v. Knight, 437 Mass. 487, 492 (2002). The defendant's claim of prejudice is limited to a general statement that his strategy of the case depended on the dates listed in the complaint, and that he had "foregone certain questions on cross-examination" of the Commonwealth's witnesses. We are not persuaded by this argument.
It may also have been no more than the correction of a scrivener's error. The judge noted that the amendment was "totally consistent not only with the evidence that was presented during the trial but also with the application for the criminal complaint, which was approved by the clerk magistrate" (emphasis added). The application for the complaint is not included in the record appendix.
As to strategy, the defendant did not dispute the Commonwealth's representations that it had provided discovery with a scope beyond that of the dates of offense set forth in the complaint. The Commonwealth tried the case, largely without objection, according to dates earlier than those listed in the complaint. To the extent that the defense strategy depended on the judge's considering evidence only within the stated dates of offense, defense counsel's choice to elevate form over substance was an unsuccessful gamble.
In opposing the motion to amend, defense counsel argued, "Judge, that's Lawyering 101 for a defense lawyer, to check out the complaint. I knew it all along. I planned my case that way. I set this case up."
Even if that were not the case, the evidence introduced at trial of the defendant's repeated misuse of his payroll authority during a period that included the original dates of offense was sufficient to support a conviction on a theory of embezzlement.
With respect to the defendant's ability to cross-examine the Commonwealth's witnesses, the judge offered the defendant the opportunity to reopen the evidence in light of the amendment, but the defendant declined in favor of an appeal of any conviction. We discern no abuse of discretion in the judge's decision to allow the amendment of the alleged dates of offense.
Judgment affirmed.
By the Court (Wolohojian, Kinder & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 4, 2019.