Opinion
15-P-1386
07-06-2017
COMMONWEALTH v. Daniel GOMES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal from his convictions, after a District Court jury trial, of two counts of breaking and entering a vehicle in the nighttime with the intent to commit a felony, G. L. c. 266, § 16, and two counts of larceny not exceeding $250, G. L. c. 266, § 30(1), the defendant argues that the failure to provide the jury with any instruction defining "felony" requires reversal of the breaking and entering convictions. We agree.
The defendant was charged in total with sixteen counts of breaking and entering a vehicle in the nighttime with the intent to commit a felony, G. L. c. 266, § 16, but fourteen of those counts were dismissed by a judge. That judge also dismissed the charge of possession of a burglarious instrument, G. L. c. 266, § 49.
Although the defendant had filed a general notice of appeal, in his brief he does not challenge his convictions of larceny not exceeding $250.
Because no objection was lodged below, we review to determine whether the error in the instruction resulted in a substantial risk of a miscarriage of justice. However, "when the claim of error pertains to the definition given to the jury of the crime charged, the possibility of a substantial risk of a miscarriage of justice is inherent." Commonwealth v. Hill, 57 Mass. App. Ct. 240, 248 (2003), quoting from Commonwealth v. Hall, 48 Mass. App. Ct. 727, 730 (2000).
The judge's instruction did not follow the District Court's model jury instruction (which includes explicit instruction as to which crimes constitute felonies) in that she gave no guidance to the jury as to what constitutes a felony. See Instruction 8.100 of the Criminal Model Jury Instructions for Use in the District Court (2009). Specifically, the jury were not instructed that larceny of $250 or less is not a felony; nor were they instructed that larceny over $250 is a felony. See Commonwealth v. Walter, 40 Mass. App. Ct. 907, 909 (1996). As a result, the jury were not instructed on a specific element of the crime. See Hill, supra at 248-249 ("The ‘intent to commit a felony’ is a specific element within G. L. c. 266, § 16. The Commonwealth must prove the specific intent with which the defendant committed the breaking and entering. That intent must exist at the time of the breaking and entering" [citation omitted] ). Moreover, where, as here, the underlying felony is larceny, the jury must be instructed that "a larceny is not a felony unless the value of the property stolen exceeds $250. The jury should [be] instructed that the Commonwealth has the burden of proving that the defendant, at the time of the breaking and entering, intended to steal property of a value in excess of $250. This is an essential element of the offense, to be found by a jury beyond a reasonable doubt." Id. at 249.
It is true, as the Commonwealth points out, that the prosecutor in closing argument correctly stated the law; however, those statements do not stand in lieu of the judge's instructions. See Commonwealth v. Silanskas, 433 Mass. 678, 691 (2001) ("[O]pening and closing statements are not evidence").
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The error carried a substantial risk of a miscarriage of justice in this case because there was no evidence of the value of the stolen items, it was neither self-evident nor a matter of common knowledge that the value exceeded $250, and the defendant's intent was accordingly a central issue. See Walter, supra at 910.
For these reasons, the judgments on the breaking and entering charges are reversed and those verdicts are set aside. The judgments on the charges of larceny not exceeding $250 are affirmed.
So ordered.
Reversed in part; affirmed in part.