Opinion
10-P-1504
03-06-2012
COMMONWEALTH v. RASHENE WASHINGTON.
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 appeals from multiple convictions following a jury trial in the Superior Court and claims numerous but unpreserved errors. The convictions were based upon charges of possession and fraudulent use of counterfeit bearer checks. We affirm.
The defendant was convicted of possession of ten or more counterfeit bank travelers and gift checks, in violation of G. L. c. 267, § 9, uttering a counterfeit travelers or gift check, G. L. c. 267, § 5, larceny over $250, and larceny under $250, G. L. c. 266, § 30, and five counts of receiving stolen property, G. L. c. 266, § 60.
First, with respect to the charge of unlawful possession of ten or more counterfeit checks, brought pursuant to G. L. c. 267, § 9, the defendant claims that the indictment was fatally defective for not having alleged that his possession of this contraband was 'at the same time,' and that it also provided inadequate notice of the offense of which he was being charged. However, the defendant never raised these claims before trial. As we think the indictment provided the defendant more than adequate notice, and that this claim is controlled in all material respects by G. L. c. 277, §§ 34 & 47A, and the case of Commonwealth v. Allison, 434 Mass. 670, 678 (2001), there is no merit to this contention.
Similarly, the defendant now claims error for the judge having failed to instruct the jury of the element that the possession of ten or more bills or checks must be proven to have been 'at the same time.' The judge's instructions on the substance of this offense informed the jury, in effect, that the Commonwealth was required to prove that the defendant had in his possession ten or more counterfeit items. While it is true that her instructions omitted a statement that the Commonwealth must prove that the defendant possessed ten or more counterfeit items 'at the same time,' there was overwhelming evidence that he had in his possession more than ten counterfeit checks, no possible confusion for the jury, and no substantial risk of a miscarriage of justice for this omission. Clearly, given the fact that the defendant, at the time of his arrest, was in a vehicle that contained two envelopes above his head that contained more than thirty such checks, and no longer had possession of the five counterfeit checks that he used to acquire goods as a result, the practical and commonsense effect of her instructions would be, and the jury could not fail to understand that, the defendant's possession of ten counterfeit notes had to be at the same time.
He also claims for the first time on appeal that counterfeit American Express travelers and gift checks could not properly be considered the subject of this statutory offense (G. L. c. 267, § 9, last amended in 1902), nor that of uttering a forged instrument, under G. L. c. 267, § 5 (last amended in 1909), because these types of checks ('United States Dollar Traveller's Check or Cheque') were added by 1974 amendments to sections 1 and 8 of chapter 267 (describing additional items which may be the subject for prosecution of possession of ten or more counterfeit bills and uttering). The defendant makes this contention in spite of the inclusive language in sections 5 and 9 that the subjects of the respective offenses include an 'instrument or other writing mentioned in the four preceding sections' (G. L. c. 267, § 5) and 'such [items] as are mentioned in any of the preceding sections' (G. L. c. 267, § 9). This claim is likewise devoid of merit.
The Legislature is presumed to know the effect of amendments on statutes with which the amendments relate. 'In its enactment the Legislature presumably knew the existing statute . . . . All the statutes must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose disclosed in the new act.' Chief of Police of Dracut v. Dracut, 357 Mass. 492, 499 (1970). See Commonwealth v. Russ R., 433 Mass. 515, 520 (2001) ('[T]he Legislature is presumed to be aware of existing statutes when it amends a statute or enacts a new one'), and Charland v. Muzi Motors, Inc., 417 Mass. 580, 582-583 (1994) ('[W]e assume, as we must, that the Legislature was aware of the existing statutes in enacting [the equal rights act], . . . , and that if possible a statute is to be interpreted in harmony with prior enactments to give rise to a consistent body of law').
Next, the defendant claims that the indictment for larceny over $250 was insufficient, claiming that the omission of the identity of the owners of the property stolen and a description of that property is fatally defective. However, the defendant never raised this claim before trial, nor requested a bill of particulars. Nonetheless, the Commonwealth provided particulars in the forms of a trial brief and proposed jury instructions, both filed prior to empanelment, setting out the manner and means that this offense was alleged, including the names of the victims and the property alleged to have been stolen. For the same reasons previously discussed with respect to the indictment for possession of ten or more counterfeit checks, we fail to discern error, let alone a substantial risk of a miscarriage of justice. See G. L. c. 277, §§ 34 & 47A.
He also claims the indictment charging larceny 'over $250' to have been amended, improperly, to allege a joint venture by single scheme. Such a claim misconstrues the nature of this allegation, and appears to elevate this 'theory' of prosecution, which the Commonwealth clearly and timely declared, as an 'element' of the offense, which it is not. See Commonwealth v. Fluellen, 456 Mass. 517, 522 (2010). '[W]hen it appears that successive takings are actuated by a single, continuing criminal intent or pursuant to the execution of a general larcenous scheme, the prosecutor may charge them as a single crime.' Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 329 (2002). Similar to the case at bar is Commonwealth v. Donovan, 395 Mass. 20, 29 (1985) (evidence showing that the defendant and another placed a single phony night deposit box on the wall of a single bank, for a single time, on a single evening was a single larcenous scheme pursuant to a 'single, continuing criminal impulse or intent,' notwithstanding the theft of money from several depositors). In the circumstances of this case, to instruct the jury on joint venture, as a single scheme, was proper.
On a related basis, the defendant then contends that if the larceny 'over' indictment was proper, and it properly permitted prosecution for a single scheme, joint venture, it necessarily swept into its reach the offense of larceny under $250 and, therefore, rendered that latter indictment duplicative. We do not agree. Given our discussion above concerning a single larcenous scheme by joint venture with Whitney, and the separate act by the defendant alleged by this indictment (larceny 'under') to have resulted in the theft of different property, the separate conviction of the defendant for this offense was not improper. See Commonwealth v. Murray, 401 Mass. 771, 772-774 (1988).
Lastly, with respect to the counts for receiving stolen property, the defendant contends, since the evidence shows that he in fact stole this property, he could not be convicted of having received that property, even though he had not been charged with larceny with respect to those items of property. While the defendant would be correct had he been convicted of having both stolen and having received the same property (see Commonwealth v. Haskins, 128 Mass. 60 [1880]), dismissal is not required when he is convicted of only one offense involving a particular item of property. Commonwealth v. Corcoran, 69 Mass. App. Ct. 123, 128-129 (2007).
Judgments affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),