Opinion
14-P-1279
09-28-2015
COMMONWEALTH v. RICHARD C. DEBROSKY.
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 appeals from his conviction after a jury-waived trial of receiving stolen property with a value of less than $250, arguing error in the trial judge's refusal to recuse himself and denial of his motion for a required finding of not guilty. The defendant also claims that he was deprived of a fair trial because a substitute witness was allowed to testify to the contents of pawn shop records. We affirm.
Background. "Because the defendant challenges the sufficiency of the evidence presented, we summarize the facts the ju[dge] could have found in the light most favorable to the Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431 (2015). In 2010, the ninety-one year old mother (mother) of Louis and Fred Gefteas (collectively, brothers) lived in Chelmsford and was suffering from dementia. When it became clear that their mother needed full-time care, the brothers in February, 2010, hired a company called Home Instead to care for their mother in her home. One of the aides sent by Home Instead was Grace Breen.
In November, 2010, the brothers realized that jewelry and coins were missing from their mother's house. Some of the coins were gold and had been handed down from generation to generation. The brothers terminated their contract with Home Instead in December, 2010, and contacted the Chelmsford police, who began an investigation into the missing coins and jewelry. As part of the investigation, Chelmsford police Detective Rebecca Tyros went to 52 Concord Street in Westford in order to speak with Breen. When she knocked on the door, she heard a male voice state, "[O]h no, the police." The defendant answered the door and the police spoke with Breen.
Tyros then went to the Lowell Jewelry and Loan shop, where she viewed two pawn transaction slips showing items pawned by the defendant on July 6 and November 4, 2010. Fred Gefteas was shown the pawn slips, which contained a photograph of the items pawned and a copy of the defendant's driver's license. When asked if he recognized the coins pictured in the pawn documents, Fred replied, "They were very similar to the coins that my mother had in her possession. I remember the heads on the dimes, the Morgan half dollars, the statue on the gold coins and they were no longer there after [October, 2010, when my brother and I locked the coins in a cabinet in our mother's house]."
Before the trial commenced, counsel for Breen notified the trial judge that, if called to testify, Breen would invoke her privilege against self-incrimination. The Commonwealth requested a hearing under Commonwealth v. Martin, 423 Mass. 496 (1996), and the judge heard argument on the Commonwealth's request. Counsel for Breen advised the judge that Breen had pleaded guilty to and was on probation for larceny of a ring stolen from the mother. Counsel noted that the defendant was charged in relation to coins, that the transactions involving the ring and the coins were related, and that any testimony by Breen relating to the coins could expose her to more charges. The judge declined to hold a Martin hearing and accepted Breen's assertion of her privilege.
In Martin, the Supreme Judicial Court "conclude[d] that a judge is not bound in all cases to accept a witness's assertion of the privilege [against self-incrimination], and that a judge, in appropriate circumstances, may conduct a limited in camera examination of a reluctant witness to ascertain whether the privilege has been properly invoked." Martin, supra at 497.
Discussion. 1. Sufficiency of the evidence. The defendant first argues error in the denial of his motion for a required finding of not guilty. "In determining whether the evidence was sufficient to survive a motion for a required finding, we [ask] whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Arce, 467 Mass. 329, 333 (2014), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The essential elements of receiving stolen property "are: (1) one must buy, receive or aid in the concealment of property which has been stolen or embezzled, (2) knowing it to have been stolen." Commonwealth v. Donahue, 369 Mass. 943, 949, cert. denied, 429 U.S. 833 (1976).
The defendant argues that the Commonwealth's evidence was insufficient to establish (1) that the coins shown in the pawn slips were the same ones that allegedly were stolen, and (2) that the defendant knew the coins were stolen. However, Fred Gefteas testified that he made a visual inspection of the coins in October, 2010, before locking them in a cabinet, that the coins pawned by the defendant on November 4, 2010, "were very similar to the coins that [his] mother had in her possession" until November, 2010, when he and his brother found that the coins were missing, and that he recognized specific features of the coins. "The crime of receiving stolen goods may be proved by circumstantial evidence," Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 668 (2002), and "[t]he inference permitted by possession of recently stolen property can be a strong one." Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 600 (1988). Taking the evidence in the light most favorable to the Commonwealth, we think that the judge reasonably could infer that the coins pawned by the defendant on November 4, 2010, were the same ones stolen from the mother's home between October, 2010, when the brothers locked the coins in a cabinet, and November, 2010, when they noticed the coins were missing. The judge also could infer the defendant's knowledge that the coins were stolen from the evidence that the defendant said, "[O]h no, the police," when Tyros knocked on Breen's door, that the defendant resided with Breen, who was the mother's home health aide at the time of the thefts, and that it was the defendant and not Breen who pawned the coins. "[T]he Commonwealth's evidence formed a strong fabric of circumstantial proof from which the ju[dge] could infer the required scienter element of the crime," id. at 599, and there was no error in denying the defendant's motion for a required finding.
2. Remaining claims. There is no merit to the defendant's claim that the judge should have recused himself from presiding over the bench trial. The defendant did not ask the judge to recuse himself, and even if the judge "had formed a negative opinion of the defendant because of the judge's prior exposure to the case [while determining whether Breen had a valid Fifth Amendment to the United States Constitution privilege], this would not constitute prohibited bias." Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 145 (2008). Where, as here, "the judge's view of the defendant was not derived from an extrajudicial source, recusal was not required." Id. at 145-146.
There also is no merit to the defendant's claim that he was denied a fair trial because an employee of the pawn shop testified to the contents of the pawn shop's records. The pawn shop owner appeared, testified to his personal knowledge as to the contents of the pawn shop's records, and the defendant cross-examined him. There was no violation of the defendant's confrontation rights.
Judgment affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 28, 2015.