Com. v. Charles

• Decision Date: 15 January 1999
• Citation: 704 N.E.2d 1137,428 Mass. 672
• Parties: COMMONWEALTH v. Jean W. CHARLES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1137

704 N.E.2d 1137

428 Mass. 672

COMMONWEALTH v. Jean W. CHARLES.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 7, 1998.

Decided Jan. 15, 1999.

Maxine Sushelsky, Boston, for the defendant.

Lee Hettinger, Assistant Attorney General, for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

GREANEY, J.

The defendant was convicted by a jury on four indictments charging motor vehicle insurance fraud (two indictments), G.L. c. 266, § 111B, and larceny over $250 (two indictments), G.L. c. 266, § 30. The defendant's primary claim on appeal is that the judge erred in admitting statements of an absent witness, a coventurer in the crimes charged against the defendant, as a "declaration against penal interest." We transferred the appeal to this court on our own motion and now affirm the convictions.

1. The Commonwealth presented the following evidence. In September, 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 accident 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 accident, 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 office of the Attorney General. A redacted version of the agreement was introduced in evidence during the prosecutor's redirect examination. Louis testified that he understood that the agreement required him to testify truthfully and to be available when needed. Louis also confirmed that he had been charged with two counts of larceny and two counts of insurance fraud and that, in exchange for his cooperation, he would be placed on pretrial probation for those charges.

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 Odolphe 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 Odolphe'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 Odolphe'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.

Odolphe 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 Odolphe 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 Odolphe at his home. At the beginning of the interview, Odolphe told Medeiros that he had been involved in an accident, although he could not recall the date of the accident. Odolphe left the room and returned with a copy of the operator's accident report dated October 25, 1991. On further questioning by Medeiros, Odolphe stated that no accident had occurred. He further stated that he had played the roles of two different individuals in the alleged collision, that of the operator of the second vehicle and the injured passenger in that vehicle.

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 Odolphe, the judge excused the jury and conducted a voir dire. Medeiros testified that at the beginning of the interview, Odolphe told him that he had been in an accident. He further stated that he had not been injured, but his two passengers were injured. Odolphe 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 Odolphe that he had received certain information in an anonymous letter (Medeiros did not testify as to what that information was), Odolphe 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. Odolphe, 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. Odolphe 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 Odolphe'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 Odolphe's statements only with respect to whether a scheme existed, not with respect to whether the defendant was a knowing participant in the scheme. The judge also ruled that testimony referring to Odolphe's fugitive status was sufficient to establish his unavailability. Defense counsel objected to the judge's rulings.

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 Odolphe'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] participant in that scheme."

The defendant argues that admission of Odolphe'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, 424 Mass. 770, 782 (1997), quoting Richardson v. Marsh, 481 U.S. 200, 208 [107 S.Ct. 1702, 95 L.Ed.2d 176] (1987)." Commonwealth v. Blake, 428 Mass. 57, 60, 696 N.E.2d 929 (1998). See Bruton v. United States, 391 U.S. 123, 124 n. 1, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). A "statement which becomes incriminating 'only when linked with evidence introduced later at trial,' however, generally does not offend the Sixth Amendment, so long as an adequate limiting instruction is given." Commonwealth v. Blake, supra, quoting Richardson v. Marsh, supra. See Commonwealth v. Keevan, 400 Mass. 557, 570, 511 N.E.2d 534 (1987).

We conclude that the statements were not sufficiently inculpatory to offend the defendant's Sixth Amendment rights. The statements neither refer to the...