Opinion
10-P-1167
10-19-2011
COMMONWEALTH v. DANNY v. ROY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Danny V. Roy, was convicted by a jury of six of larceny over $250 by false pretenses, G. L. c. 266, §§ 30(1), 34. The defendant now appeals, arguing (1) ineffective assistance of counsel; (2) his motion for required finding of not guilty should have been allowed; and (3) error in denial of his request for a curative instruction. We affirm.
The defendant claims trial counsel was ineffective due to her failure to provide or request jury instructions on specific intent and knowledge and by stipulating to the fourth and fifth elements of the charged crime.
The elements of larceny over $250 by false pretenses are:
(1) a false statement of fact; (2) known or believed to be false when made; (3) made with the intent that the person to whom it was made would rely on it as true; (4) such person did in fact rely on it as true; and (5) he parted with the property as a result. Model Jury Instructions for Use in the District Court Instruction 8.500 (2009).
The burden of demonstrating ineffective assistance of counsel is upon the defendant, who 'must show that (1) counsel's conduct fell measurably below that which might be expected from an ordinary fallible lawyer; and (2) that this conduct likely deprived the defendant of an otherwise available, substantial ground of defense.' Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). Reasonable tactical decisions ordinarily do not constitute ineffective assistance of counsel. See Commonwealth v. Mathews, 450 Mass. 858, 866 (2008).
Our duty is to consider the jury charge 'as a whole to determine whether it fairly instructs the jury.' Commonwealth v. Richardson, 429 Mass. 182, 185 (1999), quoting from Commonwealth v. Raymond, 424 Mass. 382, 386 (1997). Further, a claim for ineffective assistance of counsel fails where counsel did not request additional instructions but the 'judge's charge was appropriate.' Commonwealth v. Brimley, 20 Mass. App. Ct. 967, 968 (1985). Our review of the record indicates that the judge adequately instructed the jury on intent and knowledge. As such, counsel was not ineffective on this aspect of the case.
As for stipulating to the fourth and fifth elements of the crime, it appears that counsel made a tactical decision, which here was eminently reasonable. There was no issue at trial, indeed it was clear, that the victim relied on the defendant's statements and parted with his watch. The primary issue at trial was whether the watch Roy traded to the victim was in fact the same watch produced at trial. Under these circumstances, it was reasonable for counsel to focus the jury on the disputed issues and elements. See, e.g., Commonwealth v. Riley, 48 Mass. App. Ct. 463, 464 (2000) ('The parties had stipulated to the elements of operation and operating on a public way. Therefore, the only issue remaining before the jury was whether the defendant's ability to operate was impaired by the consumption of alcohol').
A secondary issue was whether Roy told the victim the watch was worth $10,000. It appears, however, that this was not significant at trial, as noted in the closings of both parties. The prosecutor stated that '[t]he issue of value of how much Mr. Procopio's watch was worth in 2006, or how much it might be worth today, or how much Mr. Roy's watch was worth then, or how much it's worth today, isn't really an issue.' The defense did not even argue the point.
The main issue on appeal appears to be the confusion concerning the stipulation, which was not in writing and did not even arise at trial until the prosecutor mentioned it in closing. The judge then instructed the jury in conformity, as he understood it, with what the prosecutor told the jury. At sidebar after the instructions, counsel voiced concern with what the jury had been told, explaining that the defense was not agreeing to every statement that was made relating to the value of the watch, but only that the defendant stated that he gave Procopio a genuine Rolex watch. She was concerned that the jury might understand the stipulated statement to mean that her client was admitting to the victim's accusation that the defendant stated the watch was worth $10,000. The judge considered counsel's concerns, but ultimately decided that the instructions he had given were adequate and that any further discussion of the stipulation might ultimately confuse jurors more.
In closing, the assistant district attorney explained: 'There's actually a stipulation between the parties as to the fourth and fifth elements. The judge will explain what that means . . . .'
Following a recitation of all five elements of the crime, the judge explained in his jury charge: 'Well, as you've heard the prosecutor, ADA Core state, I'm going to take away those fourth and fifth elements because the parties have agreed, in advance of trial, that Mr. Procopio did, in fact, rely on the defendant's statement as true and that he did part with personal property as a result. So, that makes your job a little bit easier, so there are three things you have to determine [the first, second, and third elements].'
Given the posture of the case and the main issue to be resolved, as noted by counsel at the outset of her closing -- 'We will never know what has happened to the Rolex watch Mr. Roy gave Mr. [Procopio]' -- it seems apparent that 'what happened' to the watch was the focus of the jury's deliberation, not whether Roy told Procopio that the watch was worth $10,000.
We lastly hold that the evidence was sufficient to support the charge. The jury were warranted in finding that Roy made a false statement of fact by telling Procopio that the watch was genuine when in fact it was not.
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For these reasons as well as for substantially those in the brief of the Commonwealth, we affirm the judgment.
So ordered.
By the Court (Kantrowitz, Graham & Fecteau JJ.),