Opinion
14-P-1867
04-15-2016
COMMONWEALTH v. PHILLIP THOMPSON.
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
This is the defendant's appeal from his conviction on nine indictments for larceny over $250. He alleges constitutional error in the grant of his trial counsel's motion to consolidate the charges of an Essex County indictment with similar charges of a Middlesex County indictment, and to transfer the case for trial in Middlesex County. He also challenges the sufficiency of the Commonwealth's proof on the element of intent to permanently deprive his victims of their property. We affirm.
Background. The defendant was an attorney whose practice included real estate and civil litigation. The defendant's convictions arose primarily out of his mishandling of client funds acquired through real estate transactions such as property sales and refinancing. In several cases, the defendant diverted funds intended to be used to pay off his clients' old mortgages, leading his clients to default on their loans and face negative credit consequences and even foreclosure. In another case, the defendant endorsed checks for insurance proceeds in his clients' names, never disbursing those funds to the beneficiaries. After a sale in which the defendant served as the closing attorney, he issued several bad checks to the seller, failing to deliver the full amount paid by the buyer as proceeds from the sale. Following a different sale of real property, the defendant provided his client with a series of bad checks and never delivered the full proceeds. On another occasion, the defendant wrote a check backed by insufficient funds to his client, a religious institution who had entrusted him with funds for a pending real estate transaction that ultimately fell through; the client never recovered the money that had been held in escrow by the defendant. There was also evidence that the defendant's firm maintained numerous bank accounts and transferred funds between them using checks that were honored but later did not clear, thereby converting additional funds belonging to the bank. In all, the defendant was convicted on nine indictments for larceny of funds totaling close to $1 million.
Two of the charges originated in Middlesex County, and the remainder in Essex County. At his arraignment in Essex County, defense counsel moved to consolidate the Essex County charges with those in Middlesex County and transfer the case to the Superior Court in Middlesex County. The motion was granted after a hearing, and the case was tried over nine days to a jury, who returned guilty verdicts on all indictments.
Discussion. a. Motion to consolidate and transfer. The defendant argues that the motion judge committed reversible error in allowing his trial counsel's "unilateral" motion to consolidate and to transfer all charges to the Superior Court in Middlesex County. He alleges that this occurred without his knowledge and consent, resulting in a constitutional violation of his right to trial by jury under the Sixth Amendment to the United States Constitution and art. 13 of the Massachusetts Declaration of Rights. This case does not involve the waiver of the right to a jury trial which must be knowing and voluntary and come "directly from the defendant." Commonwealth v. Pavao, 423 Mass. 798, 802 (1996). Instead, the charges against the defendant were merely consolidated and tried by a jury in one of the two counties where the indictments issued. The defendant has not cited any relevant authority that requires a personal waiver by a defendant in these circumstances, and has not presented us with any reason why such a rule should be established. See Commonwealth v. Amirault, 424 Mass. 618, 651 n.23 (1997) (there exists only a "very short list of rights . . . that must be waived personally by a defendant and cannot be waived by his counsel").
The record indicates that the defendant was present in the court room when his attorney made the motion to consolidate the indictments for trial in Middlesex County.
The requirement under the Sixth Amendment to the United States Constitution that a jury be drawn from "the State and district wherein the crime shall have been committed" is not implicated by the facts of this case. Neither do these facts run afoul of art. 13. The defendant waived his right to demand trial in a particular locality by moving, through counsel, for a change of venue. Commonwealth v. Aldoupolis, 390 Mass. 438, 441-442 (1983). The motion judge properly exercised his discretion to join the charges under Mass.R.Crim.P. 9(a), 378 Mass. 859 (1979) (charges may be joined if they arise out of "course of criminal conduct or series of criminal episodes connected together"), and transfer them pursuant to Mass.R.Crim.P. 37(b)(2), 378 Mass. 914 (1979) (pending charges may be consolidated and transferred to conserve judicial resources).
The provision has never been held to apply to the States, and even if it is applicable, it would be satisfied here because the word "district" in all likelihood refers to the Federal judicial districts, one of which comprises the entire Commonwealth of Massachusetts. Commonwealth v. Duteau, 384 Mass. 321, 331 (1981).
b. Motion for required findings of not guilty. The defendant contends that the Commonwealth presented insufficient evidence to prove beyond a reasonable doubt that the defendant intended to permanently deprive his victims of their property. As a principal matter, though his appellate brief purports to challenge the sufficiency of this element as to all nine larceny indictments, only indictments one and two are specifically discussed. We need not consider issues not briefed, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and deem the sufficiency challenges to indictments three through nine to be waived. See Commonwealth v. Anderson, 445 Mass. 195, 214-215 (2005). In addition, as the Commonwealth correctly points out, the jury returned verdicts of guilty as to indictments two, six, and eight under multiple theories, including the theory of false pretenses. Larceny by false pretenses does not require proof of intent to permanently deprive. Because conviction on indictment two could be upheld on a theory that requires no proof of the challenged element, the defendant's sufficiency challenge must fail. The defendant's only viable argument relates to indictment one, on which he was found guilty under a theory of embezzlement. We review the evidence on indictment one in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found beyond a reasonable doubt that the defendant intended to permanently deprive the victim of her property. See Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015).
The theories under which the defendant was convicted are as follows. Indictments one, three, four, five, seven, and nine, embezzlement; indictment two, false pretenses and stealing; and indictments six and eight, embezzlement and false pretenses.
General Laws c. 266, § 30, includes all three common-law crimes of stealing: larceny by theft, larceny by embezzlement, and larceny by false pretenses. Commonwealth v. Labadie, 467 Mass. 81, 87 (2014). The first two theories, larceny by theft and larceny by embezzlement, both require proof of intent to permanently deprive the owner of the property. See Commonwealth v. Mills, 436 Mass. 387, 394 (2002) (elements of embezzlement); Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27 (2003) (elements of larceny by stealing). In contrast, the third theory -- larceny by false pretenses -- does not contain this element. Commonwealth v. Hildreth, 30 Mass. App. Ct. 963, 965 (1991). See Commonwealth v. O'Connell, 438 Mass. 658, 664 n.9 (2003) (elements of larceny by false pretenses).
Indictment one related to the refinance mortgage of property belonging to Carine Melhorn. Melhorn took out a new mortgage to obtain more favorable interest rates. The closing was held in September of 2009 at the defendant's office and, upon closing, Melhorn believed, pursuant to the settlement statement, that the defendant would pay off her old mortgage with funds from the new loan. She began making payments on the new mortgage loan, and ceased paying back the old one. Nevertheless, she began to receive notices of late payment on the old mortgage and, later, collection telephone calls. The defendant repeatedly told Melhorn by telephone and electronic mail message (e-mail) that the payment on the old mortgage had been sent to the bank, although the telephone calls did not cease. Submitted in evidence was an e-mail from the defendant to Melhorn. In it, the defendant insisted that he had mailed a bank check that was signed for by the bank's representative, but for unknown reasons was not presented for payment. After receiving another collection telephone call, Melhorn informed the defendant that the most recent payment was "short." The defendant stated that "it [would] be in our best interest if [the bank] actually locate[d] the check" that was lost, presumably because the shortage could be attributed to a delay involved in canceling a bank check. The defendant also attempted to assuage Melhorn's concern that the unpaid mortgage loan would negatively affect her credit score. After the defendant informed Melhorn that he had requested cancellation and reissuance of the funds to pay the mortgage, it was eventually paid off in January, 2010.
This evidence was sufficient to permit a jury to find that the defendant intended to permanently deprive Melhorn of the funds he was authorized to use only to pay off her old mortgage. "One who takes property without the authority of the owner and so uses or disposes of it as to show indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently." Commonwealth v. Salerno, 356 Mass. 642, 648 (1970). The fact that the property was eventually returned does not require the finder of fact to conclude, as a matter of law, that the defendant lacked the intent to deprive Melhorn of it permanently at the time it was taken. See Commonwealth v. Cabot, 241 Mass. 131, 143 (1922) (intent to permanently deprive may be inferred, even where property was eventually returned). Here, it was reasonable and possible to conclude that the defendant, upon converting and disposing of Melhorn's funds, showed indifference as to whether they would ever be returned to her. Instead of promptly correcting any alleged mistake in transferring the funds to the bank, the defendant offered a series of explanations that only caused confusion and delayed resolution of the problem. That Melhorn, through her own diligence, was ultimately able to induce the defendant to pay off her old mortgage as promised, does not render that inference impermissible.
Judgments affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 15, 2016.