Commonwealth v. WellardCommonwealth v. Wellard
Following a jury trial in the Superior Court, the defendant was convicted of attempting to break and enter a dwelling house in the nighttime with the intent to commit a felony therein, in violation of G. L. c. 266, § 15. On appeal, he asserts that the trial judge erroneously (1) instructed the jury that the intended felony was larceny in a building, and then failed to define the specific elements of that felony; (2) failed to instruct the jury regarding lesser included offenses; and (3) failed to give an instruction, sua sponte, regаrding good faith mistaken identification. The defendant also argues that his trial attorney’s failure to request such an instruction constituted ineffective assistance of counsel. We affirm.
1. Background. On February 1, 1997, Brett DeMichael and his wife, who lived in an apartment in the Salvation Army building in Quincy,
At 2:47 a.m., police Officer John Horrigan was dispatched to the scene where he spoke with DeMichael. Horrigan observed that a sliding glass window in the DeMichaels’ apartment had been removed from its track and the window screen had been bent and thrown to the flоor of the living room. Outside, in the newly fallen snow, Horrigan noted a set of footprints that circled the building, apparently stopping at each door and window. Footprints also led from the building to a Yellow Cab office located nearby. There, Horrigan spoke with a taxi driver, John
Horrigan proceeded to 25 Shaw Street, which appeared to be a rooming house, and observed footprints in the snow similar to those outside the Salvation Army building. He tracked the footprints from the curb to the sidewalk and then up the walk to the front door. Horrigan entered the building, followed a trail of wet spots on the carpet to а door on the first floor, and knocked on it. The defendant, who was wearing wet boots, opened the door. The defendant told Horrigan that he had been home for over an hour and invited him into the apartment. The defendant showed him a light nylon baseball jacket that he claimed to have been wearing that evening. Horrigan, however, noticed a dark-colored hooded jacket hanging in the apartment. When he touched it, he found it to be “soaking wet” and also noticed that the zipper was cold. Shortly thereafter, Horrigan arrested the defendant.
Following the defendant’s arrest, the police contacted Damigella and requested that he come to 25 Shaw Street. There he observed both the defendant and the hooded jacket. Damigella testified that he had not seen the face of the man fleeing the vicinity of the Salvation Army building and that, when he observed the accused at the apartment, he (Damigella) could not be certain it was the same person he had seen running. Nonetheless, he noted that the defendant’s physical build was consistent with that of the person he had seen running away. He also testified that the hooded sweatshirt he observed at the defendant’s apartment “looked familiar . . . [fjrom when I had seen the person running.”
2. Jury instructions. The defendant first claims that the trial judge erroneously instructed the jury that the intended felony
a. Larceny in a building as the intended felony. To prove a defendant guilty of burglary under G. L. c. 266, § 15, the Commonwealth must establish not only that the defendant did break and enter a dwelling house in the nighttime, but that he did so with the intent to commit a felony. See Commonwealth v. Ronchetti,
In the present case, the defendant objected to the judgе’s instruction to the jury that larceny in a building was the intended felony.
To establish the offense of larceny in a building, “it is not enough [for the Commonwealth] to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief. It is necessary to show also that the property was under the protectiоn of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building.” Commonwealth v. Sollivan,
Larceny from a person and larceny in a building are distinguished from each other in large part based upon the circumstances in which the stolen property was safeguarded prior to its theft. We have recently noted the distinction between the two forms of larceny:
“On many occasions, the property in question will have been placed in the control, or under the supervision, of one or more individuals. It will, at least for a certain period of time, be in the possession of those persons. At other times, personal property will not be left in the control of individuals, but rather will be placed within a secured structure with the expectation on the part of the owner that the structure itself will provide the desired protection against theft.”
Commonwealth v. Barklow,
In this case, the jury could reasonably have found that the defendant, after “casing” the building and finding its doors and windows locked, attempted to break and enter the DeMichaels’ apartment for the purpose of committing a larceny therein, but fled after making a loud commotion in the living room. See Commonwealth v. Ronchetti, 333 Mass, at 81-82 (when a person breaks and enters a dwelling house at night, an intent to steal may be inferred, the inference not requiring proof of an actual larceny). See6 also Commonwealth v. Noonan,
b. Elements of the intended felony. The defendant further
The trial judge correctly instructed the jury that the Commonwealth bears the burden of proving the defendant’s specific intent at the time of the breaking and entering. She properly charged that they “should consider all of the evidence and any reasonable inferences ... in determining whether or not the Commonwealth has proven beyond a reasonable doubt, as it must, that the defendant acted with the specific intent to commit larceny in a building.” Moreover, she accurately informed the jury that if they concluded the defendant intended to commit a larceny in a building, that offense constituted a felony undеr Massachusetts law.
We are aware of no case that, in circumstances such as these, requires a trial judge to define the elements of the intended felony. Indeed, as we have already noted, a burglary indictment need not even specify the intended felony by name, as the identity of the felony is not an element of the crime and the jury can find an intent to commit an unspecified felony. See Commonwealth v. Porcher,
There was sufficient evidence from which the jury could infer that the defendant intended to commit a larceny in a building when he attempted to break аnd enter the DeMichaels’ apartment in the Salvation Army building in the nighttime. Commonwealth v. Ronchetti, 333 Mass, at 81-82. Moreover, the judge properly instructed the jury relative to the elements of the burglary charged in the indictment. See Commonwealth v. Evans,
c. Lesser included offenses. The defendant next asserts that the trial judge failed to instruct the jury regarding lesser included
In closing argument, defense counsel speculated that the perpetratоr had tried to break into the building in order to obtain refuge from the weather. Aside from evidence of a light snowfall earlier in the evening and a temperature in the high 20’s, the record does not otherwise describe the conditions prevailing at the time of the break. This hardly supports a sufficient basis for an instruction to the jury on the theory urged by the defendant. Indeed, the suggestion that the defendant was a mere trespasser seeking to escape the elements is rendеred even less tenable by the fact that he lived minutes away from the building. “There is no requirement that a judge charge on factual situations which are speculative and which are unsupported by evidence.” Commonwealth v. Thomas,
The defendant also claims that the jury should have been instructed that they could consider the crime of trespass as a lesser included offense of the entire charge of breaking and
d. Mistaken identification. Finally, the defendant claims that the trial judge should have given a good faith mistaken identification instruction sua sponte. In the alternative, he asserts that defense counsel’s failure to request such an instruction constituted ineffective assistance of counsel.
“Fairness to a defendant compels the trial judge to give an instruction on the possibility of an honest but mistaken identification when the facts permit it and when the defendant requests it.” Commonwealth v. Pressley,
However, regardless of the efficacy of such an instruction, “[w]e know of no rule that requires the judge to give a Pressley instruction sua sponte, in the absence of a proper request.” Commonwealth v. Traylor,
3. Ineffective assistance of counsel. Although we conclude that no error was committed by the trial judge in failing to give a Pressley instruction sua sponte, we must nonetheless determine whether the defendant would have been entitled to such an
We start by assuming that the defendant would have been entitled to a Pressley instruction if one had been requested, because mistaken identification was part of the defendant’s case and evidence was presented supporting that defense. See Commonwealth v. Pressley, 390 Mass, at 620. Where counsel’s failure to make such a request foreclosed the defendant from obtaining the instruction, we must determine whether its omissiоn created a substantial risk of a miscarriage of justice. We conclude that it did not.
The jury were instructed to evaluate both the credibility and the reliability of the witnesses and to take into account their opportunity to observe the events to which they testified. The jurors were also fully informed that it was their role to determine the weight of the witnesses’ testimony in light of the circumstances of - the case. Similarly, the judge thoroughly instructed the jury concerning reasonable doubt, the Commonwealth’s burden of proof, and the presumption of innocence. Compare Commonwealth v. Evans,
Counsel for the defendant ably targeted these infirmities in identification during his cross-examination of the Commonwealth’s witnesses. Similarly, he thoroughly argued misidentification in his closing argument to the jury. Compare Commonwealth v. Elam,
Judgment affirmed.
Notes
The Salvation Army employed DeMichael as the community center director and provided him housing in the Salvation Army building, a one-story brick structure.
On cross-examination, Wholey was more equivocal, testifying that the defendant looked “so familiar.”
The indictment itself merely alleges that the defendant “did break and enter in the night time [a] dwelling house . . . with intent to commit a felony . . .” (emphasis supplied). Compare G. L. c. 277, § 79.
In opposing the defendant’s motion for a required finding, the prosecutor had originally suggested that the intended felony was larceny over $250. The trial judge, in turn, raised the possibility of the intended felony being larceny in a building. Ultimately, with the Commonwealth’s agreement and over the objection of the defendant, the judge instructed the jury that the intended felony was larceny in a building.
Larceny in a building is a felony punishable by incarceration in State prison for not more than five years. G. L. c. 266, § 20. Larceny of property with a value exceeding $250 is also a felony subject to the same penalty. G. L. c. 266, § 30. Larceny of property with a value less than $250 is a misdemeanor punishable by imprisonment in jail for not more than one year. G. L. c. 266, § 30.
Although no one was present in the main section of the Salvation Army building and any property therein would have been under the protection of the building itself, the indictment limits us to consideration of the defendant’s intеnt as to the “dwelling house,” being the DeMichaels’ apartment.
Even if the defendant were correct and the evidence supported nothing more than an intent to commit larceny from a person pursuant to G. L. c. 266, § 30, the Commonwealth’s evidence was sufficient to prove an intent to commit a felony. Although a felonious larceny must involve property with a value in excess of $250, if the jury believed, as they evidently did, that the defendant entered the DeMichaels’ аpartment with an intent to steal, they were not
We note that the judge’s charge essentially tracked the pattern instruction later published in the Massachusetts Superior Court Criminal Practice Jury Instructions § 2.35, “Breaking and Entering” (MCLE 1999), which does not require the delineation of the specific elements of the intended felony. If no specific felony is charged, or if the evidence suggests a different fеlony from the one described in the indictment, the model instruction suggests that the trial judge charge the jury that “[t]he Commonwealth is not required to prove the defendant intended any particular felony, but it must prove the' "defendant
Although the allegation of a specific felony may be “surplusage and unnecessary to describe the crime,” Commonwealth v. Randolph, 415 Mass, at 367, where, in the circumstances of a particular burglary case, a trial judge does endeavor to instruct the jury concerning the elements of the intended felony, those elements must, of course, be correctly stated. See Commonwealth v. Bibbo,
At the defendant’s request, the trial judge did instruct on thе lesser offense of attempt to commit the crime charged in the indictment, and the defendant was eventually convicted of attempted breaking and entering of a dwelling house in the nighttime with the intent to commit a felony.
On appeal, the defendant states that the judge should have instructed the jury that they could consider whether the break and entry was committed with the intention to commit either of two misdemeanors: trespass or destruction of property. Although at trial the defendant requested an instruction relative to an intent to commit a trespass, he never requested an instruction concerning destruction of property, which he alludes to for the first time on appeal, without elaboration. At the very least, this does not constitute appellate argument and we decline to consider the issue raised as to the latter offense. Mass. R.A.P. 16(a)(4), as amended,
The issue of good faith mistaken identification appears to be of little moment as to Wholey, the taxi driver. In his closing to the jury, defense counsel acknowledged that the defendant had gone home in Wholey’s taxi, but argued that he had not been involved in the breaking and entering at the Salvation Army building.