Opinion
11-P-654
04-30-2012
COMMONWEALTH v. SHAD ST. PIERRE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions in the Leominster District Court of breaking and entering in the nighttime with intent to commit a felony, wanton destruction of property over $250 in value, larceny in a building, vandalizing a church, and larceny of property over $250 in value, the defendant contends that the Commonwealth presented insufficient evidence that (1) he was the perpetrator, and (2) the property destroyed exceeded $250 in value. The defendant also maintains that his larceny convictions are barred by principles of double jeopardy because he previously was convicted of receiving the same property in Salem District Court, and his trial attorney rendered ineffective assistance of counsel in failing to move to dismiss on that ground.
All the defendant's convictions relate to a break-in and damage of, and thefts from, the Holden Chapel in Holden.
We affirm the defendant's convictions because we conclude that the evidence sufficed to establish that he committed the crimes charged. We express no opinion on the defendant's double jeopardy and related ineffective assistance of counsel claim. As discussed infra, resolution of those claims is best addressed, in the first instance, in the trial court.
Attempting to resolve the defendant's double jeopardy claim at the appellate level in the first instance is unwise for at least two reasons. First, resolution involves a factual determination whether the defendant's plea to receiving stolen property in the Salem District Court relates to the same property that is the subject of the instant larceny complaints, or different property (a motor vehicle, clothing or golf clubs). Second, to the extent that there may exist a discrepancy between the Salem District Court complaint for receiving stolen property and the factual basis adduced at the defendant's guilty plea a challenge may arise to the intelligence and voluntariness of that plea.
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the evidence sufficed to establish that the defendant was the perpetrator. See Commonwealth's brief at pages nine through fourteen. Within forty-eight hours of the crime in Holden, the police in Salem found the defendant in possession of the very items stolen from the Holden Chapel (chapel) including six gift cards from Papa Johns, two from Dunkin' Donuts, and two from Stop & Shop, and a large amount of cash ($432). See Commonwealth v. Latney, 44 Mass. App. Ct. 423, 425 (1998); Commonwealth v. Rousseau, 61 Mass. App. Ct. 144, 146 (2004) (defendant's possession of recently stolen items permits inference that he stole them). Besides the defendant's possession of the items stolen, 'plus factors' linked him to the crime. Fresh footprint impressions from a work boot left by the perpetrator outside the point of entry into the chapel were consistent in size, sole pattern ('snowflake pattern on the inside . . . and ridges on the outside'), and condition ('fairly new') with work boots worn by the defendant at the time of his arrest.
Similarly, the evidence sufficed to establish that damage to the chapel property exceeded $250 in value. See Commonwealth v. DeBerry, 441 Mass. 211, 220-221 (2004); Commonwealth v. Kirker, 441 Mass. 226, 229 (2004) ('where damage is caused to a portion of the property as a whole and may be replaced or repaired, the value of the property is to be measured by the pecuniary loss '). The testimony of Thomas Curtis, the chapel pastor, established that prior to the break-in most of the office doors and desks were locked, and that 'any door that was locked was kicked open, and the door frame was broken,' and 'bolts on the doors were broken.' Moreover 'any desk that was locked was . . . pried open . . . and the locks were broken off.' The Commonwealth also introduced photographs depicting the damage. Without objection, Detective Bourget estimated the damage as 'over a thousand dollars.' Were that not enough, given the evidence before it, the jury could reasonably conclude as a matter of common experience that the cost of repairing such extensive damage easily exceeded $250. See Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 643 (2003).
Because the evidence of value sufficed, the defendant's trial counsel was not ineffective in failing to move for a required finding of not guilty on that ground. See Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 347 (1999).
2. Double jeopardy and ineffective assistance of counsel. 'It is well-established that convictions for both stealing and receiving the same items on the same occasion cannot be maintained against one individual.' Commonwealth v. Corcoran, 69 Mass. App. Ct. 123, 125, 127 n.6 (2007) (although a person may be charged with both larceny and receiving the same stolen property, he cannot be convicted of both larceny and receipt of the same goods). On the record before us, we are unable to ascertain whether prior to his larceny convictions in this case, the defendant had already pleaded guilty to receiving the same stolen property in the Salem District Court so as to implicate double jeopardy principles. Resolution of the defendant's present double jeopardy claim, which involves a factual and legal determination and scrutiny of both the Salem and Leominster District Court prosecutions, is best resolved in the first instance in the context of a new trial motion.
The result is no different when analyzed as judicial estoppel rather than as double jeopardy. See Commonwealth v. Gardner, 67 Mass. App. Ct. 744, 747-748 (2006).
A defendant may waive the defense of double jeopardy. See Commonwealth v. Spear, 43 Mass. App. Ct. 583, 586-589 (1997). Even apart from the question of waiver, the proper time for determining the validity of a double jeopardy defense is prior to the proceeding that would offend the protected rights. See Commonwealth v. Bennett, 52 Mass. App. Ct. 905, 906 (2001). The defendant made no such motion in the trial court, so neither the judge nor the prosecutor had occasion to consider double jeopardy implications at that juncture.
For the same reason, the defendant's ineffective assistance of counsel argument is also best resolved in that manner. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002)
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Judgments affirmed.
By the Court (Grasso, Berry & Wolohojian, JJ.),