Opinion
18-P-1387 18-P-1389
04-28-2020
COMMONWEALTH v. William BOYD (and eleven companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendants, William Boyd and Chancellor Young, were convicted of one count of unarmed burglary, pursuant to G. L. c. 266, § 15 ; one count of breaking and entering during the nighttime, pursuant to G. L. c. 266, § 16 ; and four counts of receiving stolen property over $250, pursuant to G. L. c. 266, § 60, as appearing in St. 2014, c. 451, § 3. Boyd and Young were arrested on these charges after being found, each carrying a mask, in a vehicle traveling at night on a deserted rural road in Boxford, in a location that was geographically proximate to the home of one of the four victims, and immediately following the victim's report to the police of a breaking and entering in progress at her home. Young gave a false name to the arresting officer, and lying on the seat near Boyd was the victim's checkbook. In the vehicle were tools (flashlights and a pry bar) consistent with the other break-ins, as well as items in plain view stolen from three other victims, including items from a second victim whose home was on the same road as the first victim, about three-fourths of a mile away.
The defendants were found not guilty of breaking and entering during the nighttime of the third victim's home and of possessing burglarious tools, pursuant to G. L. c. 266, § 49.
On appeal, the defendants claim there was insufficient evidence for the convictions because, inter alia, they merely were present in the vehicle (along with the two other codefendants ). They also maintain that the judge erred in denying a motion to suppress items seized from Boyd's pocket during a patfrisk -- which they contend was unsupported by reasonable suspicion that Boyd was armed and dangerous. Separately, Boyd contends that the judge erred in denying his motion to dismiss the indictments against him because the grand jury was not presented with evidence supporting probable cause that he committed a crime. We vacate the defendants' convictions for receipt of stolen property over $250 with regard to the first victim, remand for resentencing on the lesser included offense of receipt of stolen property less than $250, and otherwise affirm.
Justin Tompkins, the driver, pleaded guilty prior to trial. Adrian A. Logan (the other passenger) appealed, but he dismissed the appeal on his own motion.
We allow Boyd's unopposed motion to join this argument raised by Young in his opening brief.
Background. Because the defendants challenge the sufficiency of the evidence, we summarize the record in the light most favorable to the Commonwealth, drawing all permissible inferences in its favor. See Commonwealth v. Marinho, 464 Mass. 115, 118 (2013).
On or around December 8, 2015, four homes -- three in Boxford and one in Peabody -- were broken into and items were stolen therefrom. Three of the four break-ins were reported on the evening of December 8, 2015, and the fourth was reported the following day when an officer conducted a wellness check at the fourth victim's home; two homes were on Lawrence Road in Boxford, approximately three-fourths of a mile apart.
The first report concerned a breaking and entering in progress in Boxford and was received around 9:50 P.M. In particular, Jennie Bridges reported that, after she retired for bed that evening, she heard scuffling noises downstairs and went to investigate. She saw a man holding a flashlight. She turned on the hallway light, startling the intruder, who then fled. Her work bag, which had been left on her dining room table, containing a leather wallet, a change purse, her work badge, her bus tickets, a pair of reading glasses, and a checkbook, had been stolen. Tire tracks and footprints were left on her lawn.
A State trooper arrived at the location of the break-in within a few minutes of Bridges's call and observed a red Sports Utility Vehicle (SUV) on the dark, rural road. No other vehicles were present. The SUV had heavily tinted windows. The trooper ran the license plate and stopped the SUV.
The driver had a learner's permit, and none of the other passengers had a license. The front passenger, later identified as Young, gave a false name. Boyd was in the rear seat behind the driver, and another man (see note 3, supra ) was behind Young. A flat screen television in the cargo area of the SUV was visible to the trooper. Other officers arrived and the occupants were ordered to exit the vehicle.
During the stop, the second report of a break-in was received. Scott Wallace, whose home was on the same road and less than a mile away from Bridges's home, reported that, when he returned home from work around 9:30 P.M. , he noticed a rarely used light in the back of his home was lit, his back door was open, and a flat screen television (later found in the SUV) was missing. Wallace had left his home at around 7:00 A.M. and, at that time, the light was off. In addition to the television, his X-Box and games, speakers and sound system, a laptop, an iPhone, a camera bag and a camera, a trash can, and a brown canvas duffle bag were also stolen.
Meanwhile, at the scene of the stopped SUV, the trooper conducted a patfrisk of Boyd. The trooper found two watches (labelled "Moyer") and mint condition two-dollar bills in Boyd's pockets. Both Young and Boyd carried masks. Bridges's checkbook lay on the rear passenger seat -- the location where Boyd had been seated. The trooper also noticed a second flat screen television in the rear cargo area. All four passengers were arrested.
A subsequent inventory search of the vehicle revealed Wallace's trash can containing his X-Box and games, Wallace's canvas bag holding his laptop, and a pillow case holding Bridges's belongings. In the cargo compartment lay Wallace's speakers, sound system, camera bag, and camera. A toolbox containing, inter alia, several pry bars, knives, and flashlights was also in the SUV. Flashlights and gloves were located in the rear pockets of the SUV, accessible to Boyd.
Other items, later identified as having been stolen from the two other homes broken into, were also found in the SUV. In particular, on the same evening as the Bridges and Wallace break-ins, at around 7 P.M. , Elina Bisconti reported a break-in at her Peabody home. A fifty-five inch RCA flat screen television, jewelry (including a diamond ring, rope chain necklace, and pearl earrings), pillowcases, an envelope containing two-dollar bills, an autographed ticket stub, collectible coins, and a signed baseball were missing; these items were also found in the SUV.
The day after the arrests, a detective noticed that Jane Moyer's Boxford home had been broken into. The family had been on vacation since December 5. There were pry marks and damage on the back door. (A pry bar was found in the SUV, see supra.) Items stolen from the Moyer home included jewelry (a diamond ring), a laptop, tablet, three watches, two of which had "Moyer" inscribed on them, gloves, pillow cases, and two-dollar bills. The remaining items from the Moyer home were found inside the SUV.
As discussed supra, Boyd possessed two watches, one with "Moyer" inscribed on it, as well as two-dollar bills.
Discussion. 1. Sufficiency of the evidence. On appeal, the defendants argue there was insufficient evidence at trial to support (1) a joint venture theory element for each of their convictions, (2) the nighttime element of breaking and entering into Wallace's home, and (3) the over $250 element for each count of receipt of stolen property. In assessing the defendants' sufficiency challenge, we view the evidence in the light most favorable to the Commonwealth and ask 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, 677 (1979).
a. Joint venture. Both defendants challenge the sufficiency of the evidence of joint venture with regard to the charges of unarmed burglary of Bridges's home and breaking and entering during the nighttime of Wallace's home. Young also challenges the sufficiency of the joint venture evidence as to his knowledge that the items from the four households were stolen. They each contend that the evidence of their presence in the SUV was insufficient to show joint venture. See Commonwealth v. Chinn, 6 Mass. App. Ct. 714, 717 (1978).
"[J]oint venture criminal liability has two essential elements: that the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).
Unarmed burglary, pursuant to G. L. c. 266, § 15, and breaking and entering during the nighttime, pursuant to G. L. c. 266, § 16, both require intent to commit a felony -- here, larceny over $250. Receipt of stolen property, pursuant to G. L. c. 266, § 60, requires knowledge that the property is stolen.
i. Bridges -- unarmed burglary and receipt of stolen property. With regard to the charges stemming from the Bridges break-in, the evidence was sufficient. The defendants were traveling in the sole vehicle in the immediate vicinity, and on the same dark, rural road, as the reported break-in in progress at Bridges's home -- within minutes of the report. See Commonwealth v. Pope, 15 Mass. App. Ct. 505, 510-511 (1983) ("The jury could also have found that the defendant's position next to the open passenger door of the automobile fifty feet from the scene of the crime was not a chance occurrence"); Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976) ("complicity as a principal may be inferred" based, in part, on presence near crime scene). Also, the police found tire tracks outside of Bridges's home.
Bridges's checkbook lay on the rear passenger seat where Boyd was seated, and Bridges's other missing property was also in the SUV. While the defendants' presence with these items alone would not suffice, Chinn, 6 Mass. App. Ct. at 717, the presence of the defendants alongside these stolen items in the sole vehicle on the dark, rural road geographically proximate to Bridges's home, just moments after Bridges reported the break-in, permits the inference of joint venture.
Adding to this evidence, both Young and Boyd carried masks -- accoutrements the jury could infer they used during the break-in. Further, Bridges reported that the intruder she had startled in her home carried a flashlight and flashlights were found in the car, at least one within reach of Boyd.
Finally, Young gave a false name, permitting an inference of consciousness of guilt. See Pope, 15 Mass. App. Ct. at 511, quoting Commonwealth v. Fancy, 349 Mass. 196, 201 (1965). Together this evidence showed that, beyond mere presence in a vehicle, the defendants were joint venturers in the unarmed burglary of Bridges's home and in the receipt of Bridges's stolen property.
ii. Wallace -- breaking and entering during the nighttime and receipt of stolen property. This same evidence, together with Wallace's stolen items found in the SUV, also supports the conclusion that the defendants were in a joint venture with regard to the Wallace charges. In particular, given the proximity of Wallace's home to Bridges's home, as well as the presence of Wallace's stolen property in the SUV, a rational trier of fact could infer that the defendants were joint venturers in (i) the Wallace break-in, which (a jury could infer) occurred that same evening shortly before the entry into Bridges's home, and (ii) the receipt of Wallace's stolen property. See, e.g., Commonwealth v. Breen, 357 Mass. 441, 447-448 (1970).
iii. Bisconti/Moyer -- receipt of stolen property. The aforementioned evidence, together with Bisconti's reported break-in that same evening, the presence in the SUV of Bisconti's and Moyer's stolen property, and the pry bar found in the SUV, which was consistent with the tool used to enter the Moyer home, support a finding that the defendants also were joint venturers in the receipt of the property stolen from those homes. See, e.g., Commonwealth v. Namey, 67 Mass. App. Ct. 94, 97-100 (2006). In particular, the jury could infer that receipt of the property was part of an ongoing crime spree by the codefendants spanning a short time frame in a geographically limited area near the Bridges and Wallace homes. See Commonwealth v. Magri, 462 Mass. 360, 364-365 (2012).
b. Nighttime element for Wallace break-in. The defendants next maintain that there was insufficient evidence to prove the nighttime element of breaking and entering Wallace's home because Wallace left his house at 7 A.M. and did not return until 9:30 P.M. "Night time" is defined as "the time between one hour after sunset on one day and one hour before sunrise on the next day." G. L. c. 278, § 10. Direct evidence of the time of a break-in is not required to prove the element of "night time." See Commonwealth v. Bennett, 424 Mass. 64, 67 (1997).
Here, the jury properly could infer that the Bridges break-in occurred several hours after sunset (9:50 P.M. ) on a December evening. See Commonwealth v. Kingsbury, 378 Mass. 751, 754 (1979) (jury may rely on general knowledge to determine sunset). Wallace's home is on the same road, three-fourths of a mile away. Wallace's back door was open and the light (which was off when he had left for work that morning) was lit when he returned home, permitting an inference that the intruders broke in when it was dark. Items from both homes were found in the SUV, with Wallace's electronics in the cargo area, and his brown canvas bag in the passenger compartment, along with Bridges's checkbook. Based on the foregoing, a rational finder of fact could infer that the break-in at Wallace's home occurred during the nighttime, immediately prior to the break-in at Bridges's home.
c. Over $250. The Commonwealth rightly concedes there was insufficient evidence that the property stolen from Bridges was valued at over $250. Thus, we vacate the defendants' convictions of receiving stolen property valued over $250 as to Bridges, and remand the case for an entry of guilty on the lesser included offense of receiving stolen property with a value of $250 or less as well as for resentencing as to that lesser included charge. See Commonwealth v. Mauricio, 477 Mass. 588, 598 (2017).
The remaining three convictions of receipt of stolen property over $250 are supported, contrary to the defendants' arguments on appeal. There was evidence that Wallace's camera was valued at $600; X-Box and games, over $400; sound system, $250; and television, $600 at time of purchase. There also was evidence that Bisconti's ring was valued at $400 and the rope chain was about $1,000. The jurors could use their common knowledge to conclude that the combined value of the Moyer items was over $250. See Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 642-643 (2003).
Moyer's stolen items included a laptop, tablet, diamond ring, other jewelry, three watches, pillow shams, gloves, and two-dollar bills.
The laptop and tablet were entered as physical exhibits. Contrast Mauricio, 477 Mass. at 598 (where jury not presented with stolen ring, brand and photograph of ring insufficient for jury to apply common sense to determine value).
2. Motion to suppress. The defendants also argue that the motion to suppress evidence seized from the patfrisk of Boyd should have been allowed. We may affirm the denial of a motion to suppress on any ground supported by the record. See Commonwealth v. Washington, 449 Mass. 476, 483 (2007).
The initial stop of the SUV is not contested and was justified by the darker than allowable tint of the vehicle's windows. See G. L. c. 90, § 9D. Because neither the defendants nor the other occupants of the SUV had a valid driver's license, the officers were justified in having the vehicle towed. See Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 175 (2019). Thus, the defendants rightly do not contest either the exit order or search of the SUV pursuant to the Boxford Police Department inventory policy. See id. at 174, 175-176. The search of the SUV revealed items stolen from the four homes, including Bridges's checkbook and other items Bridges reported stolen. Once the stolen items were found, there was probable cause to arrest Boyd.
A search of Boyd incident to arrest then would have revealed the watches and two-dollar bills found earlier during the challenged patfrisk. For that reason, the motion to suppress was properly denied. See Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 617 (2011) (search may precede arrest if probable cause exists, independently of search, to believe object searched contains evidence of crime); Commonwealth v. Somers, 44 Mass. App. Ct. 920, 923 (1998) (where information inevitably would have been discovered by lawful means, evidence admissible).
3. Motion to dismiss. Boyd argues the judge erred in denying his motion to dismiss the indictments against him on the basis that the grand jury heard insufficient testimony for the nighttime element of breaking and entering and the value element of the receipt of stolen goods. We disagree.
The Commonwealth presented evidence sufficient for the grand jury to find probable cause supporting each challenged element. See Commonwealth v. Fernandes, 483 Mass. 1, 24 (2019). Specifically, as to nighttime, the grand jury heard that multiple officers responded to a break-in at Bridges's home in the evening, between 8 P.M. and 11 P.M. , and that Bridges had turned off all of the lights prior to going to bed, heard noises downstairs, and saw someone shine a flashlight into her face. The grand jury also heard that Wallace, whose home was three-quarters of a mile away from Bridges, called about a break-in at approximately 10:10 P.M. , and that items stolen from both homes were found in the vehicle in which the defendants were traveling.
As to value, the grand jury heard that Wallace was missing a television, iPhone, X-Box and games, camera, and camera bag. The grand jury also was given a list of items missing from each of Wallace, Moyer, and Bisconti.
Because we remand for entry of the lesser included offense with regard to the value of property shown to be stolen from Bridges, we need not assess the grand jury evidence with regard thereto.
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The judgments on indictments of receiving stolen property of Jennie Bridges valued over $250 are vacated, and the cases are remanded to the Superior Court for resentencing of defendants Boyd and Young upon verdicts of guilty on the lesser included offense of receiving stolen property of Jennie Bridges with a value of $250 or less. The remaining judgments are affirmed.
So ordered.
Affirmed in part; vacated in part and remanded