Opinion
No. 09–P–2131.
2012-07-6
COMMONWEALTH v. Kerr CARRINGTON.
By the Court (GRASSO, MILLS & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 18, 2009, the defendant, Kerr Carrington, was indicted on one count each of larceny of a motor vehicle in violation of G.L. c. 266, § 28( a ), fraudulent use of a credit card in violation of G.L. c. 267, § 37C, and forgery in violation of G.L. c. 267, § 1. The case was tried to a jury, and following the close of evidence the trial judge allowed the defendant's motion for a required finding of not guilty of fraudulent use of a credit card. The defendant was subsequently acquitted on the forgery charge, and convicted on the remaining charge of larceny of a motor vehicle.
On September 24, 2009, The defendant filed a motion to vacate the guilty verdict which was denied by the Superior Court.
A subsequent motion for a new trial was also denied, and the defendant's appeals were consolidated on appeal to this court. The defendant has also filed a timely notice of appeal from the conviction, and in his brief the defendant argues trial claims that effectively constitute an appeal of his underlying conviction. The Commonwealth has responded to those arguments, so we consider them in addition to the denial of the aforementioned motions. The defendant argues that (1) his waiver of his right to counsel was invalid because it was not preceded by an adequate colloquy, (2) “steal[ing]” a motor vehicle under G.L. c. 266, § 28( a ), may not be proved by a theory of false pretenses, and (3) the judge erred in declining to instruct the jury on an affirmative defense that the defendant “had an honest and reasonable belief” that he was entitled to the property ...”
A single justice of this court also affirmed the Superior Court's denial of a motion by the defendant for stay of execution of his sentence, filed on February 11, 2010.
We affirm the judgment.
Background. We recite only those facts relevant to the defendant's claims on appeal. During and around November, 2008, the defendant made several attempts to purchase a black 2008 Range Rover Sport Supercharged from Land Rover of Peabody (dealership), using a variety of financial instruments. The defendant ultimately told the dealership that he would wire the purchase amount of $72,500 into the dealership's bank account. On November 18, an employee noticed that the $72,500 had appeared in the dealership's account. As a result, a dealership employee called the defendant and the defendant picked up the vehicle. Soon thereafter, an employee noticed that the money had disappeared from the dealership account. The employee contacted a bank representative, who informed her that the amount was not the result of a wire transfer but came from a check, which was made out to the dealership from an entity called “The Sewell Corporation.”
At trial, a representative from Sewell Lexus (Sewell) in Dallas, Texas, testified that the check was not from Sewell, and that it contained his company's account number but was inconsistent with his company's checks in many other respects.
A dealership employee called the defendant and explained that the funds had disappeared from the dealership account. The defendant “said that couldn't be” and proceeded to fax the dealership a deposit slip. As a bank representative testified at trial, the deposit slip was an obvious forgery, a fact that was recognized by the dealership employees. A dealership employee called the police, who arrested the defendant on November 28, 2008.
Waiver of counsel. On the morning of March 31, 2009, the defendant appeared for an arraignment in Superior Court. The judge addressed the defendant regarding his wish to proceed pro se,
stating: “if you want to waive an attorney, I will give you some information and advice, go through a colloquy with you and allow you, if you want to, to waive an attorney, if I find you know what you are doing.” The case was recessed and called again in the afternoon, at which point the judge had a further discussion with the defendant about his wish to proceed pro se. The defendant indicated that he had had a disagreement with his appointed counsel in the District Court. The judge informed the defendant that the attorney with whom he had had the dispute in District Court would likely not be assigned to the case, and in response the defendant said that fact “wouldn't sway [his] decision” to proceed pro se. The defendant indicated that he “realize[d] his right to have an attorney” and wished to “take full responsibility for [his] own defense.” After the arraignment, the defendant signed another written waiver form, though it was not certified by the judge.
The defendant had signed a written waiver of counsel form following an earlier District Court status hearing.
At trial, the defendant represented himself with the occasional assistance of standby counsel. He successfully prosecuted several motions, cross-examined all Commonwealth witness himself, obtained, with the help of standby counsel, a required finding of not guilty of fraudulent use of a credit card, and successfully argued for an acquittal on the forgery charge. Of the three original charges, he was convicted only of larceny of a motor vehicle in violation of G.L. c. 266, § 28( a ).
Discussion. With regard to the defendant's first argument, “[i]n order to show a right to a reversal of his conviction, a defendant must establish that his waiver of counsel was ineffective because it was not intelligently made.” Commonwealth v. Pamplona, 58 Mass.App.Ct. 239, 242 (2003), quoting from Commonwealth v. Lee, 394 Mass. 209, 218 (1985).
“[T]he request to proceed pro se must be made unequivocally [,] ... [i]t must be asserted prior to trial [, and] it must be exercised knowingly and intelligently.” Commonwealth v. Mullen, 72 Mass.App.Ct. 136, 140 (2008). In Commonwealth v. Means, 454 Mass. 81 (2009), the Supreme Judicial Court defined the scope of an ideal colloquy, which it said would include inquiry “that the waiver is made with a sense of ... the disadvantages of self-representation ... an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one's story....” Id . at 89–90 (quotations omitted).
Importantly, the knowing and intelligent nature of a waiver does not necessarily need to be demonstrated through a colloquy. See Lee, 394 Mass. at 218. “Our jurisprudence has resisted the suggestion that prescribed questions attend a judge's inquiry.... Nor is any particular piece of information essential to an effective waiver of counsel.” Pamplona, 58 Mass.App.Ct. at 241. Further, “[a] defendant has a constitutional right to defend himself without counsel when he knowingly and voluntarily elects to do so.” Ibid.
We conclude that the judge was within his discretion to rule that the defendant possessed sufficient understanding to knowingly and intelligently waive his right to counsel. Though the colloquy was terse, and a more detailed colloquy would have been preferable,
under the circumstances the judge could have reasonably found that the defendant possessed the requisite understanding of his decision and its consequences. Further, the defendant's imperfect but nonetheless impressive performance at trial indicated an “awareness of legal defenses and the Commonwealth's need to prove” each element of its case. Commonwealth v. Moran, 17 Mass.App.Ct. 200, 209 (1983).
See Means, 454 Mass. at 89–90.
Additionally, the judge's inquiry here was far more substantial than in other cases cited by the defendant in which an absence of valid waiver was found. See Commonwealth v. Mullen, 72 Mass.App.Ct. 136, 144–145 (2008); Commonwealth v. Cote, 74 Mass.App.Ct. 709, 712–713 (2009).
With regard to the defendant's second argument, we disagree that he was convicted for conduct “that was not statutorily prescribed,” because the Commonwealth prosecuted the larceny of a motor vehicle charge under a false pretenses theory. The larceny statute prohibits the “steal[ing] of a motor vehicle.” G.L. c. 266, § 28( a ). The word “steal” has long been recognized as a term of art, and includes a criminal taking or conversion by way of either larceny, embezzlement, or obtaining by false pretenses. See Commonwealth v. Mills, 436 Mass. 387, 391 (2002). Further, the Legislature has broadly provided that the word “stealing,” when used in an indictment, includes all forms of larceny, criminal embezzlement, and obtaining by criminal false pretenses. G.L. c. 277, §§ 39 & 41. With regard to the defendant's third argument, we conclude that the judge properly declined to instruct the jury on the affirmative defense that he “had an honest and reasonable belief that he was entitled to the property and he had a right to the property.” “[N]either the intent to repay nor actual repayment is a defense” to larceny by false pretenses. Commonwealth v. Lepper, 60 Mass.App.Ct. 36, 45 (2003).
Judgment affirmed.
Order denying motion for New trial affirmed.