Opinion
No. 15–P–1315.
10-03-2016
COMMONWEALTH v. Ryan M. GOMES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal from his conviction under G.L. c. 266, § 60 (receiving stolen property with a value greater than $250), the defendant challenges only the amount of restitution. We affirm.
In broad summary, the evidence permitted the jury to find that, in late June, 2013, the defendant asked his friend Armani Bone to pawn a pair of sapphire earrings and three twenty-two karat gold bracelets (part of a four-bracelet set), stating that he could not pawn the jewelry himself because he did not have identification. Bone agreed, and the pawn shop bought the items for $300, which Bone gave to the defendant. The jewelry had been stolen from the bedroom closet of the victim, Safia Jamil, who was acquainted with the defendant because he was a friend of her brother. The defendant and Bone had both been to the victim's house on several occasions. The defendant made various inculpating statements when Bone confronted him about the theft. Also, the fourth bracelet of the set was admitted at trial.
After the jury verdict, the judge immediately proceeded to a sentencing hearing, and sought the Commonwealth's sentencing recommendation. The prosecutor stated that she had spoken to the victim, who did not wish the defendant to receive jail time. Based on that, the prosecutor requested eighteen months of probation. As to restitution, the prosecutor represented that the victim had previously estimated the jewelry to be worth $2,100. In response to the judge's inquiry as to whether the victim wished to speak herself during the sentencing hearing, the prosecutor said that she did not.
The judge then heard from defense counsel, who requested that the defendant receive only twelve months of probation and pay $300 in restitution. The judge then stated his intention to impose one year of probation and order $2,100 in restitution, stating that the figure was not based on the sentimental value of the jewelry (which had been gifts, including from the victim's grandmother), but rather on the fact that the sum was reasonable given that the three bracelets were gold. Defense counsel objected to the restitution amount, arguing that there was no evidence that the jewelry was worth more than the $300 received from the pawn shop. The judge in response repeatedly offered to hold a restitution hearing if the defendant wanted to pursue his objection. At the same time, the judge noted that the $2,100 estimate appeared reasonable and that, as a result, an evidentiary hearing might permit the Commonwealth to elicit evidence of a higher value and therefore might not be in the defendant's best interest. Nonetheless, the judge several times again stressed that the choice was the defendant's to make and that he was prepared to conduct an evidentiary hearing on restitution. In response, the defendant repeatedly stated, on the one hand, that he did not want an evidentiary hearing but argued, on the other hand, that the Commonwealth had not introduced evidence to support an order of restitution for any amount other than $300. Ultimately, the following exchange occurred between the judge and defense counsel:
THE COURT: “Your client—if he wants a restitution hearing, he can have it, but he has to understand—“
DEFENSE COUNSEL: “No, no, Your Honor, no, he does not.”
THE COURT: “—that the victim in this case could well go out and do some research and find out that these things are much more substantial.”
DEFENSE COUNSEL: “He would agree to pay that amount [i.e., the $2,100].”
THE COURT: “Okay.”
DEFENSE COUNSEL: “Thank you.”
The defendant states that “any alleged waiver [of an evidentiary hearing] was involuntary” and, furthermore, on appeal he does not seek a remand for purposes of conducting an evidentiary hearing. Instead, he argues that the Commonwealth did not meet its burden of establishing that the jewelry was worth anything more than the $300 paid by the pawn shop.
The defendant suggests that his waiver was essentially coerced by the judge's comments about the risks that an evidentiary hearing might carry. Although it is true the judge highlighted the potential risk to the defendant should the Commonwealth adduce further evidence regarding the value of the property, it does not follow that those comments were coercive.
“The purpose of restitution ... is to compensate the injured party for losses incurred as a result of the defendant's criminal conduct.... The payment of restitution is limited to the economic losses caused by the conduct of the defendant and documented by the victim.” Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001). Commonwealth v. Henry, 475 Mass. 117, 120 (2016), quoting from Commonwealth v. McIntyre, 436 Mass. 829, 833–834 (2002). A restitution hearing “need not be elaborate” and the rules of evidence do not apply. Commonwealth v. Casanova, 65 Mass.App.Ct. 750, 755–756 (2006), quoting from Commonwealth v. Nawn, 394 Mass. 1, 7 (1985). Indeed, “a restitution hearing must be flexible in nature and all reliable evidence should be considered .” Casanova, supra at 756. “Accordingly, hearsay, if reliable, is admissible to carry the Commonwealth's burden at a restitution hearing.... Conversely, unsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis for a determination that the loss or damage for which restitution is sought is causally connected and bears a significant relationship to the offense.” Ibid. “The Commonwealth bears the burden of proving the victim's losses and their amount by a preponderance of the evidence.” Id. at 755. “Ordering restitution and determining the amount thereof rest within the sound discretion of the judge.” Commonwealth v. Avram A., 83 Mass.App.Ct. 208, 214 (2013).
Here, the judge cannot be said to have erred when he acceded to the defendant's desire not to have an evidentiary hearing. The judge was not required to override the defendant's explicit wishes; the judge was entitled to rely on the defendant's waiver. See Commonwealth v. Yeshulas, 51 Mass.App.Ct. 486, 492–493 (2001) (upholding restitution order where defendant did not request an evidentiary hearing, and instead participated in the restitution decision by making her own recommendation for a restitution amount).
What remains, therefore, are two related questions: (1) whether the judge was required to accept the pawn shop's purchase price as the value of the victim's loss, and (2) whether the prosecutor's representation of the victim's estimate that the jewelry was worth $2,100 was sufficient basis upon which to rest the restitution order. As to the first, the defendant concedes that the pawn shop value is not fair market value. The judge therefore did not abuse his discretion or commit other error of law in not limiting restitution to the pawn shop purchase price.
As to the second question, the judge did not abuse his discretion in determining that the hearsay statement of the victim's estimate of the jewelry's value was sufficiently reliable. The victim gave a detailed description of the missing jewelry at trial, including the facts that the earrings contained gemstones and the bracelets were twenty-two karat gold. The jury's verdict demonstrates that they found the victim to be credible, a conclusion the judge was also entitled to reach. The judge could infer the victim's lack of bias or motive to lie or exaggerate from her moderated position at sentencing, where she asked that the defendant not be incarcerated. Moreover, a matching bracelet was admitted into evidence, and the judge was entitled to take its appearance and features into account in assessing the reasonableness of the victim's estimate. The judge also could properly draw upon his own experience and knowledge of the cost of jewelry to assess the reasonableness of the victim's estimate and to determine that the pawn shop value is significantly less than fair market value. In short, the judge did not abuse his discretion in concluding that the prosecutor's hearsay statement concerning the victim's estimate of her loss was sufficiently reliable for purposes of ordering restitution in that amount.