Opinion
No. 14–P–1966.
05-13-2016
COMMONWEALTH v. Francisco ROJAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Francisco Rojas, was convicted of larceny of a motor vehicle. On appeal, the defendant argues that: (1) there was insufficient evidence to support his conviction; (2) the judge allowed improper hearsay testimony; (3) the prosecutor improperly commented on an ultimate issue of fact; and (4) his right to a fair trial was violated when the prosecutor's closing argument impermissibly commented on his character. Because we agree that the prosecutor's closing argument deprived the defendant of his right to a fair trial, we reverse and remand for a new trial.
Discussion. 1. Sufficiency of the evidence. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the jury could have found the following facts. On November 19, 2009, the defendant applied for, and received, a loan from River Works Credit Union (River Works) to finance the purchase of a 2006 BMW 745i (2006 BMW) from Boston Foreign Motor. The defendant listed his address in Pawtucket, Rhode Island, on the loan application. That same day, the defendant applied for a registration and title certificate for the 2006 BMW from the Rhode Island Division of Motor Vehicles (Rhode Island DMV). On January 1, 2010, the Rhode Island DMV issued the defendant a certificate of title that erroneously omitted River Works as the lienholder.
In November, 2010, the defendant stopped making payments on his loan and River Works initiated a collection action against him. At trial, the collections manager for River Works testified that the defendant was delinquent on his loan from 2009–2011 based on her memory of the defendant's case file. On December 9, 2010, River Works mailed the defendant a notice of intention to repossess (notice) the 2006 BMW due to nonpayment of his loan to the defendant's Pawtucket address. River Works did not send the notice certified mail and there was no evidence that the defendant actually received the notice.
This testimony was erroneous as the loan file reflects that the defendant made payments for a year and became delinquent in November, 2010. This may have been significant because if the payments stopped in November, 2009, the jury could have inferred that the defendant never made even one payment. If the payments stopped in November, 2010, the jury may perceive the defendant differently. We trust that if the Commonwealth retries this matter, it will prepare its witnesses and that if the testimony and loan file differ, defense counsel will be prepared to impeach if strategically appropriate.
On March 6, 2011, the defendant went to a different BMW dealership and had his 2006 BMW appraised for its trade-in value, which was $18,000, to aid in his cousin, Antonio Matos's, purchase of a new BMW. The defendant gave this dealership his Pawtucket address. The defendant also represented on the buyer's report that he was the registered owner of the vehicle and that he had title to the vehicle. He did not disclose the River Works lien, or the notice. On April 30, 2011, Matos completed the purchase of a 2011 BMW, which was financed, in part, through the defendant's 2006 BMW trade-in.
“The question on review is whether, viewing the evidence in the light most favorable to the prosecution, and considering all reasonable and possible inferences, a rational jury could have found the essential elements of the crime proven beyond a reasonable doubt .” Commonwealth v. Pena, 39 Mass.App.Ct. 332, 334 (1995), citing Commonwealth v. Latimore, supra at 677–678. “Larceny is the ‘unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently.’ “ Commonwealth v. Moore, 36 Mass.App.Ct. 455, 461 (1994), quoting from Commonwealth v. Johnson, 379 Mass. 177, 181 (1979). “The elements of larceny of a motor vehicle are the same as the elements of larceny of any species of property.” Moore, supra. “A man's intention or knowledge is a matter of fact which ordinarily cannot be proved by direct evidence and resort frequently must be had to proof by inference.” Commonwealth v. Sandler, 368 Mass. 729, 741 (1975), quoting from Commonwealth v. Boris, 317 Mass. 309, 315 (1944). “To the extent that conflicting inferences are possible from the evidence, it is for the jury to determine where the truth lies.” Pena, supra, quoting from Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981) (quotations omitted).
Here, the parties agree that the only issue regarding larceny is whether the defendant had the specific intent to permanently deprive River Works of the 2006 BMW when he traded-in the vehicle. Reviewing the evidence in the light most favorable to the Commonwealth, the jury could reasonably infer that the defendant knew that River Works was the lienholder on his 2006 BMW and that he knew he was not making the required monthly payments on his loan. Furthermore, because the defendant listed the same address on his 2009 loan application and on the 2011 buyer's report, the jury could reasonably infer that he received the notice. Thus, the jury could also infer that the defendant was aware that he did not have the authority to sell the 2006 BMW and that he intended to permanently deprive River Works of the vehicle. See Pena, supra at 336.
In support of the defendant's affirmative defense as a first time car loan borrower that he had the honest yet mistaken belief that he could trade-in the 2006 BMW but would still be personally liable for the loan, the defendant introduced a single exhibit, a check payable to River Works, in the amount of $15,365.00, from Manheim New Jersey, an auto auction company, that was in his River Works file. However, there was no evidence that the defendant caused the check to be mailed to River Works, or that the check settled his loan. If the loan was not paid in full, the jury was free to reject this argument.
2. Prosecutor's closing argument. The defendant argues that his right to a fair trial was violated where the prosecutor was allowed to impermissibly comment on the defendant's character during the closing argument. We agree. The prosecutor opined throughout his closing argument, over repeated objection, that the defendant was engaged in a “character test.” He analogized the defendant's behavior to an opportunist who sees someone drop a five dollar bill on the ground and keeps it for himself, rather than returning it. The prosecutor stated that “[t]he defendant's character was tested in early 2010.” The prosecutor then asked whether the defendant gave “the five dollars back or did he stuff it in his pocket and run?” He continued, arguing that “[w]hat the evidence proves beyond a reasonable doubt that this defendant stuffed the money in his pocket and runs. That's why the Commonwealth has proved by way of its case that he is guilty of larceny of a motor vehicle.”
The prosecutor mentioned a “character test” six times during his closing argument regarding the defendant's behavior, which spanned just six pages of the transcript.
“In determining whether improper argument requires reversal in any particular case, we consider whether the defendant seasonably objected, whether the error ‘went to the heart of the case,’ whether the judge's instructions mitigated the error, and whether the error ‘possibly made a difference in the jury's conclusions.’ “ Commonwealth v. McCoy, 59 Mass.App.Ct. 284, 293 (2003), quoting from Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).
Here, the defendant objected unsuccessfully throughout the prosecutor's closing. “By overruling the defendant's valid objection, the judge appeared to give judicial endorsement to the prosecutor's improper argument.” Id. at 522. The prosecutor's comments further prejudiced the defendant because the defense was the defendant's honest, but mistaken belief that he had the authority to trade-in the 2006 BMW, albeit that he would still owe the loan balance. The prosecutor's comments alluded to the defendant's poor character, as someone who would take a five dollar bill that was dropped on the ground, instead of returning the money, and those comments could likely impact the weight that the jury gave to the defendant's affirmative defense. “The remarks were not merely irrelevant to the issue of the defendant's guilt but constituted prejudicial character denigration.” McCoy, supra at 292.
The Commonwealth conceded at oral argument that this would not be a crime.
Additionally, the judge failed to mitigate the prejudice to the defendant because he did not give a curative instruction regarding the prosecutor's improper comments. Contrast Kozec, supra at 518 (“On numerous occasions, the impact of an improper final argument has been mitigated by the judge's forceful instructions to the jury that the argument was inappropriate and should be disregarded”). There was only one issue in this case, whether or not the defendant had the specific intent to permanently deprive River Works of its property. The prosecutor's closing argument impermissibly introduced the defendant's character into the jury's deliberations, and because we conclude that “the error possibly made a difference in the jury's conclusions,” we reverse. McCoy, supra at 293 (quotations omitted).
3. Other issues. We address certain claims of error in the event of retrial, however, given the result that we reach, we do not address these arguments on the merits. The defendant argues that the repeated use of the phrase “stolen vehicle” “ran afoul of the general proscription against allowing testimony on the ‘ultimate issue’ in a case.” Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 470 (2006) (citation omitted). We agree that “it would have been preferable for the prosecutor to avoid using the [term] in framing the questions.” Ibid. We trust that upon retrial the Commonwealth will refrain from using the phrase “stolen vehicle,” and will instruct its witnesses accordingly, as this impermissibly invaded the province of the jury as the fact-finder. See Commonwealth v. Griffith, 45 Mass.App.Ct. 784, 786 (1998). Furthermore, we trust that only relevant nonhearsay testimony shall be admitted at trial. Finally, we are confident that the jury will be properly instructed on the affirmative defense of honest, but mistaken belief pursuant to Commonwealth v. Liebenow, 470 Mass. 151, 161162 (2014).
The jury was instructed that “[i]f the defendant took another's property in an honest and reasonable belief that he was acting properly and that he had the legal right to do what he did, you must find him not guilty. Even if that belief was in fact mistaken because the defendant under those circumstances would lack the intent to steal.” The judge did not have the benefit of Liebenow during the trial, and as a result, the jury was incorrectly instructed on the affirmative defense of a honest but mistaken belief. The defendant did not raise this issue on appeal, but we note that upon retrial, if the defendant fairly raises this affirmative defense, the Commonwealth must prove that the defendant did not have an honest yet mistaken belief that he had the authority to trade-in the car, beyond a reasonable doubt. See Liebenow, supra.
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4. Conclusion. The judgment is reversed, the verdict is set aside, and the matter is remanded to the District Court for further proceedings consistent with this memorandum and order.
So ordered.