Com. v. Anslono

• Decision Date: 10 March 1980
• Citation: 9 Mass.App.Ct. 867,401 N.E.2d 156
• Parties: COMMONWEALTH v. John A. ANSLONO.
• Court: Appeals Court of Massachusetts

Page 156

401 N.E.2d 156

9 Mass.App.Ct. 867

COMMONWEALTH v. John A. ANSLONO.

Appeals Court of Massachusetts, Middlesex.

Argued Feb. 12, 1980.

Decided March 10, 1980.

Mark G. Miliotis, Boston, for defendant.

James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, ROSE and PERRETTA, JJ.

RESCRIPT.

We conclude that the defendant's conviction by a jury of larceny of a motor vehicle (G.L. c. 266, § 28) must be reversed because the judge's instructions to the jury in many and diverse ways deprived the defendant of his constitutional right to a fair and impartial trial.

1. The Commonwealth's case proceeded on the theory that the defendant legitimately acquired possession of the victim's automobile for the purpose of making minor repairs, that the defendant decided to steal the car, and that the defendant thereafter completed the theft by selling the vehicle to a third person without the owner's authority, covering his tracks with an inflated repair bill and questionable title documents. The defendant presented evidence that the vehicle needed more repairs than originally anticipated, that the bill tendered for the repairs was reasonable, and that the owner refused to pay the bill. The defendant testified in substance that he felt he held good title to the car by reason of the unpaid bill, the length of time the car had been left with him (over one year), and by his possession of a "release" signed by one Bowman, who was alleged to be the only other person, apart from the victim, possessing a title interest in the vehicle.

On the evidence, the judge was required to instruct the jury clearly and correctly, in a fair and impartial manner, on the substantive elements of the crime charged, with particular attention to the crucial question of the existence of a larcenous intent. Commonwealth v. Porter, 10 Met. 263, 283 (1846). Commonwealth v. Carson, 349 Mass. 430, 435, 208 N.E.2d 792 (1965). Commonwealth v. Kelley, 359 Mass. 77, 92, 268 N.E.2d 132 (1971). Commonwealth v. Corcione, 364 Mass. 611, 618, 307 N.E.2d 321 (1974). Of course, it is beyond the need for citation that the judge was also required to define adequately the concept of reasonable doubt.

The judge's threadbare and general discussion of the elements of the crime failed to provide the jury with any real guidance on the elements of the offense. His instructions on the question of larcenous intent were largely meaningless, and he omitted entirely an instruction that the defendant was entitled to an acquittal if he honestly and reasonably believed that he had title to, and the right to sell, the motor vehicle. Commonwealth v. Stebbins, 8 Gray 492, 495 (1857). Commonwealth v. White, 5 Mass.App. 483, 485-488, 363 N.E.2d 1365 (1977).

Further, the judge on several occasions in the course of the charge adopted the role of an advocate who was convinced of the defendant's guilt. For example, in discussing the defendant's claim of title to the car, the judge stated "there is no evidence that I have heard and certainly no evidence that I can say that you have heard which in any way justifies or authorized Mr. Anslono to sell that car . . .." This observation was directly contrary to the evidence and improperly trespassed on the function of the triers of fact by telling the jury how to view the testimony and what inferences to draw from the evidence. Commonwealth v. Cote, 5 Mass.App. 365, 369-370, 363 N.E.2d 276 (1977). Contrast Commonwealth v. Therrien, 371 Mass. 203, 206-207, 355 N.E.2d 913 (1976). To worsen matters, the judge also prejudicially eroded the defense position by addressing the issue of guilt in these terms: "The fact of the matter is that if you do violate a statute, you are technically guilty of a larceny, and that's what you have in this situation here." Still later the judge added: "The question is simply this: Did (the victim) own the car and leave it there? If he did, there has been no process, no due process which Mr. Anslono followed by which he could sell that car. So, therefore, he would technically be guilty of larceny. His only out in this case is if you . . . (the jury) believe that Bowman owned the car." Finally, the cryptic instructions on...