Commonwealth v. Goldstein

768 N.E.2d 595, 54 Mass. App. Ct. 863, 2002 Mass. App. LEXIS 735
CourtMassachusetts Appeals Court
DecidedMay 28, 2002
DocketNo. 00-P-1587
StatusPublished
Cited by13 cases

This text of 768 N.E.2d 595 (Commonwealth v. Goldstein) 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. Goldstein, 768 N.E.2d 595, 54 Mass. App. Ct. 863, 2002 Mass. App. LEXIS 735 (Mass. Ct. App. 2002).

Opinion

Brown, J.

The defendants, Fredericks Goldstein and Michael K. White (mother and son), were each indicted for armed robbery. In addition, Goldstein was indicted for larceny over $250, and separately for being an accessory after the fact to armed robbery, and accessory after the fact to assault by means of a dangerous weapon. White was also indicted for larceny over $250, and assault by means of a dangerous weapon.

The defendants brought pretrial motions, pursuant to Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), to dismiss [864]*864the indictments relating to the charge of armed robbery.2 After hearing argument, a judge in the Superior Court allowed the motions to dismiss, and filed a memorandum containing his order. The Commonwealth filed notice of appeal, and a motion for reconsideration. This motion was denied, and a memorandum of decision issued. The Commonwealth appeals from the order of dismissal, and from the denial of the motion for reconsideration, contending that there was sufficient evidence before the grand jury to support an indictment for armed robbery. We reverse the orders of the motion judge, and remand to the Superior Court for trial.

We set forth the pertinent evidence presented to the grand jury: Robert Walker, a loss prevention officer employed at a Wal-Mart store in Walpole, testified that on September 21, 1999, at about noon, he noticed a woman in the store wearing “blue hospital scrubs.” Walker had previously seen the woman (later identified as defendant Goldstein) dressed in scrubs at another Wal-Mart store. The woman, accompanied by a man (later identified as defendant White), had taken three DVD players down off the shelf and placed them in a shopping cart along with some DVD movies and a portable telephone. These items, it was later determined, had a value of $1679.69.

Walker testified that the defendants then left the electronics [865]*865department, and that Goldstein retrieved á “bunch of our blue bags” from behind a registry area that was empty at the time. Subsequently, in the housewares department, an assistant manager of the store, who was pretending to be a shopper, observed the defendants begin to place the merchandise into the bags Goldstein had obtained.

The defendants then proceeded to walk through a registry area without paying for the merchandise and went out the front door, setting off a security alarm.3 Walker waited until the defendants had left the building, and then he went outside and approached White from the front. White had been pushing the shopping cart (Goldstein was standing next to him) as the defendants left the store. Walker grabbed the cart and identified himself as a security officer. At this point, Goldstein, who was not carrying anything, walked past Walker to her automobile, a Mitsubishi Galant. White struggled to separate the cart from Walker, who continued to hold onto it. After a few seconds, however, White let go of the cart. As Walker reached for White’s arm, White managed to retrieve a knife from his rear pocket, and he flicked it open and made a left to right “sweeping motion” toward Walker with the blade. Walker then jumped back and let White proceed to the Mitsubishi. Goldstein was driving, and the vehicle sped off, but Walker was able to obtain the license plate number. The merchandise in the shopping cart that the defendants left behind was tagged, wrapped up, and placed into an evidence locker.

James O’Connell, a Walpole police officer, testified that he responded to the Wal-Mart store upon receiving a report of an armed robbery, and that when he arrived Walker described to him what had occurred. He stated that the Norwood police subsequently recovered the Mitsubishi. Two black folding knives were found underneath the floor mat on the passenger side of the vehicle. In the trunk were four video recorders and a cordless phone that Walker identified as belonging to Wal-Mart (but which were not the same items that were the subject of the instant prosecution).

In his memorandum allowing the deferidant’s motion to [866]*866dismiss, the judge, after review of the facts, concluded that “it is clear from the facts that the defendant did not continue to carry away the items when Walker tried to initially stop him,” and that the act of “walking away from the property in this case is sufficient for th[e] court to find that the robbery was abandoned because the act of leaving the property is an appreciable act to allow the court to determine that the defendants had withdrawn from that criminal enterprise.”

In his subsequent memorandum denying the Commonwealth’s motion for reconsideration the judge refocused, observing that the defendants were not still in the store when White threatened Walker, and, furthermore, that “the theft arguably ended when White released his hold on the cart, left the goods, and began walking away from the store.” Thus, the memorandum recites, “the brandishing of the knife by White which caused fear in Walker did not facilitate the theft of property and was a separate occurrence from the larceny.” The judge concluded that the grand jury did not hear sufficient evidence to establish probable cause that White committed an armed robbery or that Goldstein had engaged in a joint venture with him.

While the judge’s analysis is imbued with a certain surface appeal, it cannot be divorced from the context in which it is undertaken. In the normal course, the court will not scrutinize the competency or sufficiency of evidence presented to the grand jury. Commonwealth v. Coonan, 428 Mass. 823, 825 (1999). This is a rule of long-standing. See Commonwealth v. O’Dell, 392 Mass. 445, 450-451 (1984). “At the very least the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). See Commonwealth v. McGravy, 430 Mass. 758, 762 (2000). The standard of sufficiency has been defined as whether the grand jury “heard reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” McCarthy, supra. This standard “offers no sure mechanical guide for assessing sufficiency, but it has been employed primarily to strike down indictments in cases where a grand jury has heard ... no evidence whatever that would support an inference of the [867]*867defendant’s involvement.” Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 31, 37 (2000), quoting from Commonwealth v. Club Caravan, Inc., 30 Mass. App. Ct. 561, 567 (1991) (emphasis supplied). A grand jury finding of probable cause is necessary if the indictments “are to fulfill their traditional function as an effective protection ‘against unfounded criminal prosecutions.’ ” Commonwealth v. McCarthy, supra, quoting from Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 531 (1974). But probable cause requires considerably less evidence than that which is required to support a finding of guilty. See Commonwealth v. O’Dell, 392 Mass. at 451; Commonwealth v. Badgett, 38 Mass. App. Ct. 624, 625 (1995). We turn to the analysis.

Larceny is the unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently. Commonwealth v. Johnson,

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Cite This Page — Counsel Stack

Bluebook (online)
768 N.E.2d 595, 54 Mass. App. Ct. 863, 2002 Mass. App. LEXIS 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-goldstein-massappct-2002.