Opinion
15-P-1610
02-21-2017
COMMONWEATLH v. Thomas M. HALEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Thomas M. Haley, appeals from his conviction by a Boston Municipal Court jury of conspiracy to commit larceny. He argues that the Commonwealth presented insufficient evidence to prove beyond a reasonable doubt that he committed the crime. In addition, he argues that the investigating detective's testimony stating that he believed the defendant participated in the crime was prejudicial error. We conclude that there was sufficient evidence for the jury to find the defendant guilty and that, although the detective's testimony was improper, it did not prejudice the defendant.
1. Sufficiency of the evidence . The defendant argues that the Commonwealth failed to present sufficient evidence that proved beyond a reasonable doubt that he conspired to commit larceny. We consider the evidence in the light most favorable to the Commonwealth and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore , 378 Mass. 671, 676–677 (1979). Commonwealth v. Lonardo , 74 Mass. App. Ct. 566, 570 (2009).
The defendant contends that the Commonwealth only presented circumstantial evidence and failed to prove that the defendant actually participated in the conspiracy to steal the copper wire. To prove a conspiracy, the Commonwealth "must prove that the defendant combined with another with the intention to commit the object crime." Commonwealth v. Nee , 458 Mass. 174, 181 (2010) (quotations omitted). A conspiracy does not need to be proved by direct evidence of participation, see Commonwealth v. Nelson , 370 Mass. 192, 200 (1976), and may be (and usually is) established by circumstantial evidence. Lonardo , supra at 569. It is essential to a conviction that the Commonwealth prove the existence of an agreement. Commonwealth v. Cook , 10 Mass. App. Ct. 668, 671 (1980). However, "[i]t is not essential to a conspiracy that parties meet or that they confer or formulate their plans." Commonwealth v. Beal , 314 Mass. 210, 221 (1943). The common purpose to commit the object crime "may be inferred from concerted action converging to a definite end." Ibid . Commonwealth v. Shuman , 391 Mass. 345, 350 (1984).
The defendant also argues that the copper wire could have been misplaced or used by one of the many contractors, subcontractors, or employees at the building. This argument goes to the weight of the evidence rather than the sufficiency of the evidence.
Viewing the evidence in the light most favorable to the Commonwealth, there is sufficient evidence supporting a conclusion that the defendant conspired to steal the copper wire. The copper wire was reported missing by the two mechanical technicians who had ordered the wire to complete a specific task in the mechanical room on the ninth floor of the building. The defendant, a custodian at the building, had swiped his security badge to access the mechanical room twice on the morning the copper wire was reported missing. The defendant did not work on the ninth floor and had no responsibilities that required him to access the mechanical room on that day. The only time the defendant accessed the mechanical room during that week was the morning the copper wire disappeared. Surveillance footage shows the defendant enter the mechanical room, leave with a barrel containing an object consistent with the top of a copper wire spool, take that barrel down the elevator, and place it on the loading dock. Surveillance also shows the coconspirator, who worked for a medical waste removal company, meet the defendant and wheel a recycling bin into the back of his truck. Someone dressed like the defendant then drove away from the building with the coconspirator, returning nine minutes later.
Removing recycling bins was not part of the co-conspirators job responsibilities.
It is also important to note that it is customary for the medical waste employees to leave pickup receipts when they collect waste from the building. There was no receipt for this particular pickup.
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Viewing the evidence in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence for a rational jury to find the defendant conspired to commit larceny. See Commonwealth v. Jordan , 49 Mass. App. Ct. 802, 805 (2000). See also Commonwealth v. McLaughlin , 431 Mass. 241, 246–247 (2000).
2. Opinion testimony . The defendant argues that detective Paul Devlin's testimony that he believed the defendant removed the copper wire from the building was prejudicial error. Because the defendant preserved the issue on appeal with a timely objection, we review for prejudicial error, Commonwealth v. Cruz , 445 Mass. 589, 591 (2005), and conclude that although the opinion testimony was improper, the defendant was not prejudiced by it.
"[W]e have long recognized that ‘[n]o witness, including a police witness, may testify as to a defendant's guilt or innocence.’ " Commonwealth v. Canty , 466 Mass. 535, 540 (2013), quoting from Commonwealth v. Hamilton , 459 Mass. 422, 439 (2011). Here, however, we are convinced that excluding Devlin's testimony that he believed the defendant conspired to steal the copper wire from the other evidence presented by the Commonwealth, the jury verdict would have been the same. See Commonwealth v. Lodge , 431 Mass. 461, 468 (2000). There was overwhelming credible evidence presented through testimony of the Commonwealth's witnesses as well as video surveillance to show that the defendant conspired to steal the copper wire. Furthermore, since Devlin was the investigating officer, the jury would likely have inferred that he believed that the defendant was involved in the theft even if he never expressly testified to that. See Commonwealth v. Hamilton , 459 Mass. 422, 439 (2011). Any harm by the admission of Devlin's opinion was cured by the judge's explicit final jury charge, see Canty , supra at 545, where she said, "[T]he detective in this case provided an opinion. Ultimately, the opinion that counts in the determination of the facts is your opinion because, once again, you are the judges of the facts." Devlin's opinion testimony was improper, but the defendant was not prejudiced by it.
Judgment affirmed .