Thе defendant was convicted by a jury on four indictments charging motor vehicle insurance fraud (two indict
1. The Commonwealth presented the following evidence. In Septembеr, 1991, the defendant approached Clodel Louis, a coworker, and offered to include him in an automobile accident report, and in the making of a fraudulent insurance claim based on that accident, in exchange for $200. Louis agreed, and paid the defendant.
On October 25, 1991, at 6 a.m., the defendant made a telephone call to Louis and told him that the accident had taken place. The defendant directed Louis to telephone his employer and explain that he had been in an automobile аccident and he would not be coming to work. He also told Louis that he would telephone again later that day, and would provide Louis with a copy of the accident report so that Louis could obtain medical treatment for the alleged injuries he sustained in the “accident.”
The defendant telephoned Louis again that afternoon. He told Louis that his wife had his car, and instructed Louis to pick him up at home and drive him to a hospital. On the way to the hospital, the defendant explained to Louis the details of the аccident, in particular that the defendant’s car had been struck from the rear, that the defendant and his sister had been in the front seat, and that Louis had been in the back seat. The defendant instructed Louis to claim that he had a lower back injury.
Hospital medical records introduced in evidence indicate that the account of the accident told by Louis to hospital emergency room personnel was consistent with that suggested by the defendant. The defendant instructed Louis to wait one or two weeks and then to make an appointment with a chiropractor.
Louis testified that he told hospital personnel that he was injured, and he filed a false insurance claim, in order to obtain money from any insurance settlement resulting from the fraudulent motor vehicle accident. He further testified that the accident had not occurred, and that he had lied to hospital personnel, his chiropractor, and his lawyer.
Louis testified pursuant to a written plea agreement with the
The defendant’s automobile was insured with Safety Insurance Company (Safety). On October 25, 1991, the defendant signed an operator’s report of motor vehicle accident which stated that, on October 25, 1991, at 6:45 a.m., while operating his car, he was in a collision with a car owned and operated by Odolphe Julien at the corner of Corbett Street and Hopkins Street in the Mattapan section of Boston. The defendant described how the accident occurred, and the damage sustained by his car and Julien’s car. The defendant included two passengers in his report as being injured, one being Louis. The defendant submitted to his insurance agent a signed automobile loss notice form regarding the accident. Information included on the form was consistent with that provided by the defendant on the accident report, including Julien’s motor vehicle and insurance information. Both forms were relied on by Safety in deciding to make certain payments on the claims.
Louis submitted to Safety an application for benefits in which he described the accident consistent with the defendant’s account, claimed that he was injured as a result, and incurred medical bills relating to those injuries. The defendant and Louis each obtained approximately $2,000 from Safety as a result of their medical claims.
Julien submitted an automobile loss notice form to his insurer, United States Fidelity & Guaranty Company (USF&G). USF&G also received the defendant’s accident report and loss notice form concerning the accident. USF&G paid Julien approximately $500 for the damage to his car, which it determined to be a total loss, and $350 to a salvage company.
Tito Medeiros testified that he was an investigator for the Massachusetts insurance fraud bureau. In May, 1992, he reviewed files from USF&G regarding the October 25, 1991, accident. Medeiros, along with Elizabeth Poleet, a special agent with the immigration service, interviewed Julien at his home. At the beginning of the interview, Julien told Medeiros that
Two claims adjustors, one from the USF&G, and one from Safety, testified that they had reviewed the claims from the accident, concluded that they were legitimate, and thus paid the claims.
2. Prior to Medeiros’s testimony regarding his conversation with Julien, the judge excused the jury and conducted a voir dire. Medeiros testified that at the beginning of the interview, Julien told him that he had been in an accident. He further stated that he had not been injured, but his two passengers were injured. Julien was unable to describe the other vehicle involved in the accident, and he could not recall how many people were in the other car. After Medeiros told Julien that he had received certain information in an anonymous letter (Medeiros did not testify as to what that information was), Julien admitted that there had not been an accident, and that he had played the role of the alleged operator of the car, as well as one of the injured passengers. Julien, who did not have proper immigration documents, agreed to cooperate with the investigation, and made an appointment to meet with Medeiros at a later time. Julien failed to keep the appointment, was subsequently indicted and defaulted on charges stemming from the alleged accident, and was then listed as a “wanted fugitive.”
Following the voir dire, the judge ruled that Julien’s statements were admissible as statements against penal interest. She informed counsel that she would only allow admission of certain statements. In this regard, the judge stated: “Given [the] voir dire, the Commonwealth is permitted to elicit from this witness two things .... First, he says there’s an accident. Secondly, he says there’s not an accident. . . . You need to insure that your questions are sufficiently narrowly drawn that you don’t draw him into talking about [the defendant’s knowledge of the scheme].” She indicated that she would instruct the jury to consider Julien’s statements only with respect to whether a scheme existed, not with respect to whether the defendant was a
Following Medeiros’s trial testimony, to which defense counsel also objected, the judge immediately instructed the jury: “[Y]ou are to consider [Medeiros’s testimony as to Julien’s statement] only with [respect to] whether or not there was a scheme to defraud the insurance company. You are not to consider that answer with regard to whether the defendant . . . was a knowing and [wilful] рarticipant in that scheme.”
The defendant argues that admission of Julien’s extrajudicial statement violated the defendant’s due process and confrontation rights, and that the judge’s limiting instruction was improper because it inculpated the defendant. We reject these arguments.
We have said that, “[w]here a nontestifying codefendant’s statement ‘ “expressly implicate[s] ” the defendant, leaving no doubt that it would be “powerfully incriminating,” ’ the confrontation clause of the Sixth Amendment [to the United States Constitution] has been offended, notwithstanding the judge’s instructions to consider the statement only against the codefendant. Commonwealth v. James,
We conclude that the statements were not sufficiently inculpa-tory to offend the defendant’s Sixth Amendment rights. The statements neither refer to the defendant, nor expressly associate him with the alleged insurance fraud scheme. The judge was acutely aware of the defendant’s concerns with admission of the statements, particularly in light of the Commonwealth’s theory that the defendant and Julien jointly committed the crimes charged in the indictments. At the same time, she recognized that the statements were crucial to establishing the existence of the insurance fraud scheme. On considering its admission, the
The defendant further argues that Julien’s statements were not sufficiently against his penal interest so as to qualify under that exception to the hearsay rule. In addition, he argues that the Commonwealth failed to meet its burden of showing that Julien was “unavailable” to be a witness at the defendant’s trial, and that the statements were not properly corroborated as required by the exception. We disagree.
In Commonwealth v. Drew,
The Commonwealth carries the burden on establishing the unavailability of a witness at the time of trial, Commonwealth v. Bohannon,
The Commonwealth makes a reasonable argument that, because Julien refused to appear in court pursuant to formal process notifying him of criminal indictments and became a fugitive, he would likely not respond to additional attempts to procure his appearance at the defendant’s trial, and, consequently, the judge acted within her discretion in determining that he was unavailable. We accept as a basis of unavailability the principles expressed in Rule 804(a)(5) of the Federal Rules of Evidence (1985). Rule 804(a)(5) provides that a witness is unavailable if the witness “is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance ... by process or other reasonable means.” Where the prosecutor’s efforts would be futile, and result in a “great improbability” of successfully procuring the witness, the witness is essentially unavailable. See Ohio v. Roberts, supra at 76. That Julien was a fugitive could justify his unavailability for purposes of the exception. See United States v. Sandoval-Curiel,
Any doubt of the sufficiency of the showing of unavailability in this case is resolved in the Commonwealth’s favor, because the conclusion that Julien’s testimony was unavailable is virtually unavoidable for another reason. It is obvious that had Julien been present to testify, he inevitably would have invoked his right under the Fifth Amendment to the United States Constitution not to incriminate himself. See Commonwealth v. Drew,
Furthermore, Julien’s statement also satisfies the second test for admissibility as a statement against penal interest, as it clearly tended to subject him to criminal liability such “that a reasonable man in his position would not have made the statement unless he believed it to be true.” Julien’s statement need not have been a “direct admission оf guilt,” Commonwealth v. Drew, supra at 74, quoting Commonwealth v. Keizer,
Finally, we conclude that the statement was properly corroborated and thus meets the third test for admissibility under the exception.
Julien’s statement was independent of, and consistent with, Louis’s statement that the accident never occurred. Additional evidence, including the defendant’s accident report, his automobilе loss notice form, and Louis’s application for insurance benefits from Safety, corroborated Julien’s statement, as brought out during the voir dire of Medeiros, that he played both the operator and the passenger who were allegedly in the second car. Based on the independent evidence produced at trial, Julien’s statement was sufficiently corroborated, and there was a “reasonable likelihood that [his] statement could be true.” Commonwealth v. Drew, supra at 76.
3. The defendant raises a number of other issues, including that the judge erred in аdmitting certain portions of a cooperating witness’s testimony and plea agreement, and in denying his motions for a required finding of not guilty. He also argues that his convictions and sentences for both motor vehicle insurance fraud and larceny are duplicative, and therefore violate double jeopardy principles. We are not persuaded by these arguments.
(a) The defendant argues that the judge erred in admitting portions of Louis’s plea agreement and testimony because the plea agreement cоntained prejudicial statements, and in combination with Louis’s testimony, constituted impermissible prosecutorial vouching. Our review of the record indicates that the prosecution’s use of the agreement complied with Commonwealth v. Ciampa,
(b) The defendant сlaims that the judge erred in denying his motions for a required finding of not guilty on the indictments charging him with filing a false insurance claim and larceny against USF&G because the evidence was insufficient to support a joint venture between the defendant and Julien on those charges. We are not persuaded by this argument.
The standard for reviewing the denial of a motion for a required finding of not guilty is “whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury ‘might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.’ ” Commonwealth v. Stewart,
The Commonwealth’s theory in this case was that the defendant and Julien undertook a joint venture to defraud both the defendant’s and Julien’s insurance companies and
Applying these principles to this case, we conclude that the evidence presеnted by the Commonwealth was sufficient to establish that the defendant committed insurance fraud and larceny against both Safety and USF&G with the assistance and participation of Julien.
(c) We discern no merit in the defendant’s contention that his
Judgments affirmed.
Notes
In Commonwealth v. Carr,
We have not had occasion to pass on whether corroboration is required when the Commonwealth seeks to introduce a statement against penal interest made by an unavailable declarant which would inculpate the defendant. Although corroboration does not appear to be required in these circumstances, wе agree with those courts and commentators which have concluded that it should be required. See Commonwealth v. Pope,
In Commonwealth v. Pope, supra at 280 n.7, we noted that “[t]he corroboration requirement for inculpatory statements should not be applied with such leniency that the defendant’s confrontation rights are violated.” There is no violation of those rights here.
During his cross-examination of Louis, defense counsel had asked Louis a series of questions regarding his obligations under the plea agreement, to which Louis essentially responded that the agreement prоvided that he would not be prosecuted if he “cooperate[d] by telling the truth.”
We also agree with the judge’s determination that the redacted plea agreement did not constitute improper bolstering although it included four references to Louis’s obligation to testify truthfully.
We reject the defendant’s argument that to prove the defendant committed larceny by false pretenses against USF&G, the Commonwealth was required to show that the defendant was present at the scene of Julien’s crime (i.e., his submission of a fraudulent insurancе claim). The nature of the crime does not lend itself to such proof.
The defendant also contends that the judge gave the jury an erroneous joint venture instruction to which he objected. He claims that the judge erroneously instructed that the Commonwealth was required to prove either that the defendant acted in commission of the crime or that he-shared the mental state for the crime, thereby reducing the Commonwealth’s burden of proof on the defendant’s requisite mental state. However, the defendant fails to includе the entire instruction in which the judge correctly states that “[a] joint venture exists where a person aids, commands, counsels, or encourages the commission of a crime while sharing with the principal the mental state required for the crime.” At the conclusion of the bench conference subsequent to the judge’s charge, a number of issues were discussed, and defense counsel did raise the objection discussed above. In proceeding to address other concerns raised, the judge inadvertently did not address the claims raised here. However, at the conclusion of the conference, she asked, “Now, is there anything that I’ve not disposed of?” Defense counsel raised an additional concern that was resolved in his favor, but did not raise the specific concern raised here. In any event, in resolving this additional concern, the judge stressed to the jury that in order to find that the defendant acted as a joint venturer they must conclude that he “entered into an agreement or meeting of the minds with one other coventurer." In light of the record оn this issue, we conclude there was no error.
Motor vehicle insurance fraud, G. L. c. 266, § 111B, requires that (1) the defendant, in connection with a claim under a motor vehicle insurance policy issued by an insurer, (2) with the intent to injure, defraud, or deceive such insurer, (3) did knowingly present to it, or aid or abet in or procure the presentation to it, (4) a notice, statement, or proof of loss, (5) knowing that such notice, statement, or proof of loss contained a false or fraudulent statement or representation, (6) of any fact or thing material to such claim. Larceny by false pretenses, G. L. c. 266, § 30, requires that (1) the defendant knowingly make a false statement, (2) intending the person to whom it was made to rely on its truth, (3) the person to whom it was made relies on the false statement, and (4) based on such reliance, the person parts with personal property. See Commonwealth v. Kenneally,
We do not accept the defendant’s broad assertion that, because the insurance companies were the “objects” of both crimes, one is a lesser included offense of the other. Cf. Commonwealth v. Souza, ante 478, 494 & n.31 (1998) (where defendant indicted for robbery of motor vehicle, “carjacking” is lesser included offense).