Commonwealth v. Faust

964 N.E.2d 987, 81 Mass. App. Ct. 498, 2012 WL 987526, 2012 Mass. App. LEXIS 160
CourtMassachusetts Appeals Court
DecidedMarch 27, 2012
DocketNo. 11-P-592
StatusPublished
Cited by5 cases

This text of 964 N.E.2d 987 (Commonwealth v. Faust) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Faust, 964 N.E.2d 987, 81 Mass. App. Ct. 498, 2012 WL 987526, 2012 Mass. App. LEXIS 160 (Mass. Ct. App. 2012).

Opinion

Kafker, J.

Apprehended with three screwdrivers, two flashlights, a folding knife, and stolen property including four global positioning system (GPS) units with car chargers attached, an iPod, a laptop computer, and welding equipment, the defendant, James B. Faust, Jr., was convicted at a jury trial of three counts of receiving stolen property with a value greater than $250, four counts of receiving stolen property with a value less than $250, one count of possession of burglarious instruments, and one count of furnishing a false name. The defendant attacks the sufficiency of the evidence on the conviction of possession of burglarious instruments; he attacks the prosecutor’s closing argument, in which she referred to him repeatedly as a “thief” and a “liar”; he argues that convictions of receiving stolen property are duplicative or, in the alternative, the evidence was insufficient; and, finally, he attacks the admission of certain evidence. We affirm.

1. Facts. Based on the evidence at trial, the jury could have found the following facts. On the morning of February 26, 2010, Officer James Harte of the Boston police department responded to 2262 Dorchester Avenue based on a report of a stolen car. Not finding the vehicle there, he broadcast a description of it over the radio. A police detective happened to be behind that car in traffic, and the vehicle was stopped by police about two miles away. The defendant, who had been driving the car, was placed in custody.

In an inventory search of the car at the station, the police found two flashlights, three screwdrivers, and a folding knife in the car door pockets. On the back seat was a black backpack that contained a laptop computer and printouts from online legal research service Westlaw. The rear cargo area contained a brown briefcase that held documents addressed to the defendant; a duffel bag containing welding equipment; and an orange and black backpack that contained a silver cigarette case and four GPS units with car chargers attached. Two of the GPS units also had car mounts attached.

At the police station, Officer Joseph Abasciano booked the [500]*500defendant and read him his Miranda rights. The defendant stated that his name was Mark Herdon but gave several different spellings of the name. He also asked whether he would be able to get his laptop back from the back seat of the car. Officer Abasciano searched the defendant and found a cellular telephone, which belonged to him, and an iPod Touch.1 The defendant stated that the iPod was his girlfriend’s iPhone,2 which he used to listen to music because it did not function as a telephone. Officer Harte told the defendant that he knew the iPod did not belong to him; the defendant said nothing in response.

Three owners of the property found with the defendant were identified by police. Marc Emond, after being notified that the police had his laptop, found that his car window had been broken and pried open. Timothy Lewis similarly discovered, after being contacted by police, that someone had smashed the window of his car, moved it, and taken his welding equipment. Alexander Amacon owned the iPod and one of the GPS units. Each identified his property among the items in the car driven by Faust, and claimed it from the police. Emond and Lewis testified at trial; Amacon did not. No owner was identified for the other items in the car.

2. Possession of burglarious instruments. The defendant argues that he was entitled to a required finding of not guilty of possession of burglarious instruments because there was no evidence that he intended to use the screwdrivers, knife, and flashlights to break into a particular depository. He also argues that if there was such evidence of his intent, in regard to the break-in of Emond’s automobile, he could not be convicted both of using the tools to break into the car and stealing the computer, and of receiving the same computer.

As the Supreme Judicial Court explained in an early case interpreting a statute3 that eventually became the current version of G. L. c. 266, § 49: “The offence was complete when the tools were procured with a design to use them for a burglarious purpose. A general intent was sufficient. It was not necessary to [501]*501allege or prove an intent to use them in a particular place . . . .” Commonwealth v. Tivnon, 8 Gray 375, 380 (1857). See Criminal Model Jury Instructions for Use in the District Court § 8.180 n.3 (Mass. Cont. Legal Educ. 2009) (“It is not necessary to prove . . . that defendant intended to break into any particular depository”). Thus, the Commonwealth bears the burden of showing the defendant’s intent to use the instruments to break into a building, room, vault, safe or place for keeping valuables, but need not identify the particular depository in which he did or would have used them.

The jury here heard evidence that the vehicles of Lewis and Emond were broken into and that numerous stolen items (including Lewis’s and Emond’s property) were found in the car the defendant was driving. More specifically, a backpack was found in the trunk that contained four GPS units (two still in car mounts) with car charging adapters attached. Against this background, the jury reasonably could have inferred that Faust intended to use the tools to break into a car, which is a depository. See Commonwealth v. Aleo, 18 Mass. App. Ct. 916, 917 (1984). The Commonwealth is not required to identify a specific automobile.

Although it is true that “convictions for both stealing and receiving the same items on the same occasion cannot be maintained against one individual,” that is not the question in this case. Commonwealth v. Corcoran, 69 Mass. App. Ct. 123, 125 (2007), citing Commonwealth v. Haskins, 128 Mass. 60, 61 (1880). Rather, here, the defendant was convicted of receiving stolen property and of possessing burglarious instruments. There was sufficient evidence to conclude that the defendant was engaging in both types of criminal activities here. Finally, the Commonwealth is not required to exclude the defendant as the thief to obtain a conviction of receipt of stolen property. Commonwealth v. Corcoran, supra at 128-129.

3. Prosecutor’s closing argument. Faust contends that the closing argument for the Commonwealth created a substantial risk of a miscarriage of justice due to the prosecutor’s repeated references to him as a “thief” and a “liar” and due to the prosecutor’s purported references to his denial of the accusations after receiving Miranda warnings. The latter contention is without merit because the defendant’s statements were not simply denials of guilt but false explanations of the circumstances sur[502]*502rounding his possession of the computer and the iPod. See Commonwealth v. McNulty, 458 Mass. 305, 329 n.23 (2010) (defendant’s statements that did not unequivocally deny guilt but “set out a version of events that attempted to minimize his responsibility” are admissible).

Although referring to the defendant as a liar is often problematic, in this case the defendant made demonstrably false statements to the police, and so it was permissible for the prosecutor to marshal the evidence in argument. See Commonwealth v. Coren, 437 Mass. 723, 733 n.9 (2002) (repeated references to nontestifying defendant as “liar” in closing permissible “where the evidence clearly supports the inference that the defendant lied”).

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Bluebook (online)
964 N.E.2d 987, 81 Mass. App. Ct. 498, 2012 WL 987526, 2012 Mass. App. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-faust-massappct-2012.