Commonwealth v. Liebenow
997 N.E.2d 109
Mass. App. Ct.2013Background
- Defendant convicted of larceny under $250 for steel pipes and metal plates from a private construction site on Amy Court, Pittsfield.
- Defendant admitted taking metal but claimed an honest belief the items were abandoned, constituting a defense to larceny.
- Trial was bench proceedings; judge held the belief was not objectively reasonable based on posted no-trespassing signs and site conditions.
- Evidence included no-trespassing signs and defendant’s initial denials, followed by acknowledgment of taking the metal.
- Majority affirms conviction, finding the judge properly applied the law of mistaken ownership/abandonment and rejected the dissent’s proposed reinterpretation.
- Dissent contests the law, arguing honest abandonment beliefs should suffice irrespective of reasonableness, and would vacate the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether honest belief of abandonment suffices to negate larceny without regard to reasonableness | Commonwealth argues belief must be both honest and reasonable | Milkey argues honesty alone defeats intent to steal | Honest and reasonable belief required (majority) |
| Whether trial judge’s comment on no-trespassing signs affected the outcome | Commonwealth relied on signs to negate abandonment | Judge’s comment not reversible error | No reversible error; proper law applied (majority) |
| Whether jury trial waiver was knowing and voluntary | Waiver valid given colloquy and signed form | Challenge to waiver adequacy raised for first time on appeal | Waiver adequate; no substantial risk of miscarriage (majority) |
| Whether Model Jury Instruction 8.520 correctly requires honest and reasonable belief | Instruction should require reasonable belief | Honest belief alone suffices | Model instruction correctly requires honest and reasonable belief (majority) |
| Whether Massachusetts law permits conviction where defendant honestly believed property abandoned | Conviction should stand if ownership/abandonment belief negates intent | Honest belief of abandonment should negate intent regardless of reasonableness | Not favorable to defense; requires reasonableness (majority) |
Key Cases Cited
- Commonwealth v. Anslono, 9 Mass. App. Ct. 867 (1980) (honest and reasonable belief required for ownership/abandonment defense (larceny))
- Commonwealth v. Vives, 447 Mass. 537 (2006) (dual requirement: honest and reasonable belief; burden on Commonwealth after production)
- Commonwealth v. Larmey, 14 Mass. App. Ct. 281 (1982) (instruction must include honest and reasonable belief in ownership/abandonment)
- Commonwealth v. White, 5 Mass. App. Ct. 483 (1977) (honest and reasonable belief formulation used in larceny defense)
- Commonwealth v. Gelpi, 416 Mass. 729 (1994) (defense counsel ineffective for failure to request mistake of fact instruction)
- Commonwealth v. Sherry, 386 Mass. 682 (1992) (mistake of fact defense requires good faith and reasonableness (general context))
- Commonwealth v. Murray, 401 Mass. 771 (1988) (larceny requires specific intent to deprive owner)
- Commonwealth v. Kiernan, 348 Mass. 29 (1964) (proof that thief knew no right to property is required)
- Morissette v. United States, 342 U.S. 246 (1952) (mens rea concepts for mistake of fact)