Opinion
No. 12–P–545.
2013-08-7
COMMONWEALTH v. Maurice BOLDEN.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We address first the amendment of two indictments to replace the name of the owner of the house in Springfield in connection with which the defendant was charged with aggravated burglary and larceny over $250 with the correct name of the victim, her daughter-in-law. We are not persuaded that this was a substantive amendment rather than an amendment of an “immaterial misnomer.” Commonwealth v. O'Connell, 432 Mass. 657, 660 (2000).
In the defendant's direct appeal, a panel of this court held that, because there was evidence of a second break, the opening of the inside cellar door, there was sufficient evidence at trial that two crimes were committed at the house in Agawam, and, therefore, that the defendant was properly convicted of two counts of aggravated burglary there. Commonwealth v. Bolden, 42 Mass.App.Ct. 1105 (1997). The defendant now argues that there was insufficient evidence before the grand jury to support a finding by the grand jury that there was probable cause to believe two separate crimes had been committed. The statement of the defendant that was placed before the grand jury that he knocked down one victim when he was “running out the door” of the basement supports an inference that he opened that door, which was the second break. That is not a phrase that would ordinarily be used to describe running upstairs through an open doorway from a cellar to the rest of the house. In light of this, the evidence was sufficient to support the two indictments.
That portion of the order dated December 23, 2011, denying the defendant's motion to correct illegal sentences is affirmed.