Com. v. Cote

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before HALE; HALE
• Citation: Com. v. Cote, 363 N.E.2d 276, 5 Mass.App.Ct. 365 (Mass. App. 1977)
• Decision Date: 26 May 1977
• Parties: COMMONWEALTH v. Joseph A. COTE, Jr., et al. 1

Page 276

363 N.E.2d 276

5 Mass.App.Ct. 365

COMMONWEALTH v. Joseph A. COTE, Jr., et al. ¹

Appeals Court of Massachusetts, Barnstable.

Argued March 16, 1977.

Decided May 26, 1977.

Joseph S. Callahan, Fall River, for defendants.

Philip A. Rollins, Dist. Atty. (James J. Higgins, Asst. Dist. Atty., with him), for the Commonwealth.

Before HALE, C.J., and GOODMAN and GRANT, JJ.

HALE, Chief Justice.

On the night of January 17, 1976, the Chatham store of the Stop and Shop Companies, Inc., was burglarized. The defendants were tried and convicted under separate indictments charging them with breaking and entering in the nighttime with intent to commit larceny (G.L. c. 266, § 16). From the evidence the jury could have found the following. On Saturday night, January 17, 1976, the head of the cash department of the Chatham store, John Arbogast, left the store at 10:30 P.M. after supervising the cleaning crew. At that time the store had just been cleaned, and the building was secure with all the doors locked. There was nothing unusual or out of place in the building. The burglary was not discovered until the night of Sunday, January 18, when the assistant manager, William Dawson, arrived at the store about midnight. He discovered the break and notified the Chatham police. An investigation by the police revealed that the store had been entered through a ventilation duct in the roof which led to an equipment room. The wall between the equipment room and the main area of the store had been broken through. The police found in the store a damaged jack (used for transporting heavy items), footprints, and drag marks on the previously clean floor. They also discovered a disconnected time clock which, when plugged in and a card punched into it, read Saturday, 11:45 P.M., indicating the approximate time of the break. A 3,000 pound safe was missing; the cigarette room had been broken into, and several cases of cartons of cigarettes had been stolen; the burglar alarm had been bypassed by means of a six volt battery connected to the wiring of the alarm system, and the grocery receiving door lock had been broken.

At approximately 11:30 P.M. on the night of January 17 a blue Lincoln Continental Mark IV with two antennae was seen by Carl and Alice Fritz in the parking lot of a restaurant and lounge across the street from the Stop and Shop. As they walked the quarter mile from the parking lot of the lounge past the Stop and Shop to the street on which they lived, the blue Lincoln passed them three times. They could not clearly see the driver, nor did they notice the license number of the car. The next morning, Sunday, January 18, a car of the same description was seen by the manager and a bartender of the lounge in the lounge parking lot sometime between 10:50 A.M. and noon. Also present in the lot at the same time was a U-Haul truck with Michigan license plates. The car and truck left the lounge parking lot together and entered the Stop and Shop parking lot.

Later Sunday afternoon Mr. and Mrs. Fritz again saw the blue Continental on a local road not far from the Stop and Shop. A U-Haul truck was not far from the Continental. Neither noted the license number of either vehicle, but Mrs. Fritz identified the defendant Cote as the driver of the U-Haul Truck. Neither could identify the driver of the Continental.

One Boheen of Fall River, a former police officer, testified that a U-Haul truck with out of state license plates had been parked in front of his house for three days in January. He could not remember the dates, but he had notified the police, who came to his house on January 21 to investigate. By the time the police arrived at Boheen's house on January 21, the truck had been removed. Boheen gave them a paper on which he had written the license plate number as well as the serial number of the truck. A truck with the same Michigan license number and serial number was later located at a gas station in Falmouth. The truck had been returned to the gas station on January 21 and the rental charge paid by the defendant Cote. While Cote was returning the truck and paying the rental charge a blue Lincoln Continental Mark IV with two antennae was on the gas station premises. The defendant Hutchins was identified as the driver of the Continental.

Upon examination of the interior of the truck the police discovered the end flap of a carton of cigarettes with a number stamped on it which later identified by the manager of the Chatham Stop and Shop as his store's identification number. They also noted that there were gouge marks in the wooden deck of the truck which were 32 inches apart. The truck had been rented on January 18, and the recorded mileage during the rental period was 177 miles. The police later found in a reservoir in Fall River the safe which had been stolen from the Stop and Shop. It was found that the safe, which had been opened, measured 31 3/4 inches across, one quarter inch less than the space between the gouge marks noted in the truck. The police then clocked the distance from the place where the truck had been rented in Falmouth, to the Stop and Shop in Chatham, to the reservoir in Fall River, and then back to Falmouth, and found that the mileage for that trip was 172 miles.

We deem to be without merit any assignments not discussed below.

1. The defendants assign as error the denial of their motions for directed verdicts. The sole question raised by a motion for directed verdict is 'whether there was sufficient evidence of the defendant's guilt to warrant the submission of the (case) to a jury.' Commonwealth v. Baron, 356 Mass. 362, 365, 252 N.E.2d 220, 222 (1969); Commonwealth v. Fillippini, 1 Mass.App. 606, 612, 304 N.E.2d 581 (1973). The standard of review of that question on appeal is whether the evidence, read in its aspect most favorable to the Commonwealth, Commonwealth v. Flynn, 362 Mass. 455, 479, 287 N.E.2d 420 (1972), is such that the jury 'might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proven beyond a reasonable doubt.' Commonwealth v. Vellucci, 284 Mass. 443, 445, 187 N.E. 909, 910 (1933); Commonwealth v. Mangula, --- Mass.App. ---, ---, ^a 322 N.E.2d 177 (1975). In this case there was no direct evidence that either defendant had committed the crime charged. "The true rule of law respecting the probative character of circumstantial evidence is well settled. It is that the circumstances must be such as to produce a moral certainty of guilt, and to exclude any other reasonable hypothesis; 'that the circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty, that the accused, and no one else, committed the offense charged.' . . .' Commonwealth v. Russ, 232 Mass. 58, 68, 122 N.E. 176, 180 (1919).' Commonwealth v. Shea, 324 Mass. 710, 713, 88 N.E.2d 645, 647 (1949). In our opinion the evidence presented to the jury, together with permissible inferences that could be drawn therefrom, was sufficient to warrant their conclusion that both defendants were guilty of the crime charged.

2. During the course of his instructions to the jury the judge made the following statement: 'So, you can conceivably find each of these defendants not guilty or the jury could find each of the defendants guilty, one of the two. . . . (I)t is inconceivable that you could find one of the defendants guilty and one not guilty. They are either not guilty or guilty on the evidence that came in in this case.' Although no exception was taken to the charge we may nevertheless consider its propriety in order to insure that it does not result in a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563--564, 227 N.E.2d 3 (1967); Commonwealth v. Perry, --- Mass.App. ---, --- - ---, ^b 329 N.E.2d 150 (1975). The defendants claim that the judge's statement constituted prejudicial error and requires reversal.

'While a judge is afforded wide discretion in phrasing his instructions to the jury he must heed certain limitations which the law places upon the exercise of his discretion. For example, G.L. c. 231, § 81, states, 'The courts shall not charge juries with respect to matters of fact, but they may state the testimony...