Opinion
12-P-258
03-24-2015
COMMONWEALTH v. RONALD S. FORGET
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 trial, the defendant, Ronald S. Forget, was convicted of larceny under $250 and improper use of a credit card (two counts). On appeal, he argues that his trial was unfair because the jury heard what he describes as "highly prejudicial testimony" about the circumstances of the death of the credit card holder; he also contends that the convictions should be vacated on double jeopardy grounds. We affirm.
Background. On July 21, 2007, Michael Doble was killed in a five-car accident on Interstate 95 in Attleboro. The defendant's employer, Sterry Street Towing, dispatched him to the accident scene to tow vehicles from the crash site. A few days after the accident, Doble's mother received a telephone call from her son's credit card company, telling her that "very unusual" charges had been posted on Doble's credit card after he died.
A charge of $50 was posted to Doble's credit card on July 23, 2007, for gas purchased at an Exxon Mobile station in Attleboro; on July 25, 2007, a $10 charge was posted for a car wash at the same Exxon Mobile station; also posted on July 25, 2007, was a charge of $475 for the on-line payment of the defendant's cellular telephone bill.
On July 26, 2007, Pawtucket Police Officers Kelly Boily and David Malkasian went to the defendant's home in Rhode Island, and spoke with him. The defendant said that he had "used a credit card [he] found on the highway" while towing cars from the crash scene in Attleboro; he believed the credit card belonged to "a victim of a fatal car accident which he responded to. He was the tow guy there." The defendant stated that he no longer had the credit card, but that he had written "the number down on a business card, used the number, then ripped up the business card and threw it away." The officers placed the defendant under arrest.
On July 27, 2007, while in custody, the defendant was interviewed by Detective Robert Matook of the Pawtucket Police Department. During their conversation, the defendant told Matook that he had found Doble's credit cards on the roadway at the scene of the crash. He stated that he had used one of the credit cards on July 23, 2007, to make an on-line payment of his cell phone bill; he also used the card for two separate charges at a gas station in Attleboro, Massachusetts, for gas and a car wash. Later on July 27, 2007, while the defendant was still in custody, Officer Malkasian returned to the defendant's home and seized Doble's credit card.
On December 21, 2007, the defendant was charged with breaking and entering in the nighttime, larceny under $250, and two counts of improper use of a credit card under $250. His motion to dismiss on double jeopardy grounds for the improper use of credit card charges (counts 3 and 4) was denied after the motion judge ruled that "the only legitimate charges that are pending are those in Massachusetts."
On January 11, 2010, after a hearing on the defendant's motion to dismiss the breaking and entering in the nighttime charge, the motion was denied; however, the charge was amended to breaking and entering during the daytime.
A few months before he was charged in Massachusetts, the defendant had been charged in the Sixth District of Rhode Island with one count of violating the Credit Card Crime Act by fraudulently using Doble's credit card to obtain "money/goods/services" in excess of $100. On November 21, 2007, he pleaded guilty to that charge and was sentenced to one year suspended, one year of probation, restitution and court costs. As discussed, infra, it appears that charge stemmed from the on-line cellphone payment.
At trial, Doble's parents both testified; Mrs. Doble testified about the credit card charges, and Mr. Doble testified that his son's wallet was missing from his son's pickup truck at Sterry Street Towing. At the close of the Commonwealth's case, the judge allowed the defendant's motion for a directed verdict on the breaking and entering charge; the jury found the defendant guilty on the remaining charges.
A Massachusetts State Police officer, Lieutenant Robert Leverone, who was the patrol supervisor on the night of the accident, testified that he retrieved Doble's wallet from his pants pocket in order to identify him and then placed the wallet in the truck's glove box.
Discussion. Jury sympathy. The defendant first argues that, because the trial judge permitted emotional testimony by Mr. and Mrs. Doble, and the prosecutor reiterated the testimony during his closing argument, the jury's conviction was based on the tragedy of Doble's death rather than facts relating to the defendant's improper use of Doble's credit card. We are not persuaded.
Mrs. Doble provided the jury with details about the improper use of her son's credit card and the fact that he could not have consented to the credit card use because he was dead. The judge apparently monitored her testimony closely, interrupting her several times in order to limit her answer to the question asked, then immediately prompting the prosecutor to move to the next question. At one point the judge specifically instructed Mrs. Doble to answer only the question posed. The defendant did not object to any of Mrs. Doble's testimony, nor did he cross-examine her.
The judge was sensitive to the potential for emotional testimony by Mr. and Mrs. Doble. Before the Dobles testified, he sua sponte instructed counsel that he wanted "the facts and the issues, not emotion," and cautioned counsel to speak to the couple in advance about the importance of limiting their testimony to the relevant issues.
Mr. Doble's testimony occupied two pages of transcript. He testified that, when he went to claim his son's belongings from Sterry Street towing, the wallet was missing. Some of his testimony was emotional. However, defense counsel did not object and, when given an opportunity to cross examine, said only, "Sir, sorry for your loss. Thank you for being here. I have no questions for you."
Specifically, Mr. Doble said that "I fell apart meantime when I [saw] his truck. It was just a mess and there was nothing --" His son's toolbox "was broken open. There [were] no tools left or [anything]." He was told that "they were scattered all about the accident." When he looked inside the truck he saw "some blood there [and] just lost it again. Just blood all over the inside."
"On this record, the defendant has not shown that the judge's decision to admit this evidence was an abuse of discretion." Commonwealth v. Carey, 79 Mass. App. Ct. 587, 594 (2011). The Dobles' testimony was relevant to establish the circumstances surrounding the theft of the credit card and the fact that the owner had not consented to Doble's use of it. The judge properly determined that the probative value of that evidence outweighed any prejudice to the defendant, and took steps to minimize any unfairness. Id. at 594-595. We see no error and certainly no substantial risk of a miscarriage of justice.
Similarly, statements that the prosecutor made during his closing argument referring to Doble's death were not, as the defendant argues, irrelevant. In fact, Doble's death was an important fact, used to prove that the defendant took the credit cards and used them without Doble's consent. The prosecutor did not refer at all to Doble's parents or to their grief at losing their son. "The comments were not improper but, rather, a simple marshalling of the evidence." Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 869 (2007). In addition, there was no defense objection and the trial judge instructed the jury that the opening and closing arguments presented by each lawyer were not evidence. We presume that the jury heeded that instruction. See Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 314 (2009), quoting from Commonwealth v. Pillai, 445 Mass. 175, 190 (2005).
Double jeopardy. The defendant also argues that his conviction should be vacated on double jeopardy grounds. He bases this argument on his contention that his plea of guilty in Rhode Island to a charge of improper use of a credit card was based on the same evidence as presented in the prosecution of this case in Massachusetts. This argument is without merit.
In the Massachusetts complaint, counts three and four charged the defendant with improper use of a credit card under $250. The evidence at trial was that the defendant, without Doble's consent, used the credit card in Massachusetts during two separate transactions at an Attleboro gas station; in doing so, he violated G. L. c. 266, § 37B(f). Because the defendant committed those crimes in Massachusetts, he was properly charged and prosecuted here; he could not have been convicted of those crimes in the Rhode Island court, because, as the prosecutor argued, that court lacked jurisdiction over these Massachusetts crimes.
In addition, the most likely view of the evidence, as reviewed by the motion judge, is that the Rhode Island plea involved the third use of Doble's credit card, to pay the defendant's cellular telephone bill. Supporting this view is the fact that the Rhode Island complaint charged the defendant with "us[ing] a credit card . . . in violation of the Credit Card Crime Act which he knows is (stolen) for the purpose of obtaining (money/goods/services), the value of which exceeded $100 . . . . " (emphasis added). As the Commonwealth argues, the total value of the two charges in Attleboro was sixty dollars, while the T-Mobile bill that the defendant told the police that he paid with Doble's credit card was for $475.
The defendant's reliance on Commonwealth v. Cepulonis, 374 Mass. 487 (1978) to support his double jeopardy argument is misplaced. In Cepulonis, the crimes charged fell under the jurisdiction of both Federal and State court. Id. at 488-489. Here, in contrast, Rhode Island lacked jurisdiction because the offenses charged occurred only in Massachusetts. See Id. at 494-495. We are satisfied that there was no error in denying the defendant's motion to dismiss.
Judgments affirmed.
By the Court (Kantrowitz, Grainger & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 24, 2015.