Com. v. Donovan

• Decision Date: 28 May 1985
• Citation: 478 N.E.2d 727,395 Mass. 20
• Parties: COMMONWEALTH v. Brian DONOVAN (and thirteen companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 727

478 N.E.2d 727

395 Mass. 20

COMMONWEALTH v. Brian DONOVAN (and thirteen companion cases ¹).

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Feb. 5, 1985.

Decided May 28, 1985.

Philip X. Murray, Boston, for defendants.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

A jury found Brian Donovan and Robert Grant guilty on each of seven indictments for larceny. Both defendants challenge their convictions on the ground that the trial judge erred in denying their motions for required findings of not guilty. Moreover, the defendant Grant argues that the trial judge erred in admitting allegedly "surprise" testimony which implicated him in the crimes. We conclude that these two contentions are meritless. Nonetheless, we further conclude that the criminal conduct at issue here constitutes a single larceny, not seven separate larcenies, and thus we order the dismissal of six of the seven indictments brought against each defendant.

The evidence adduced at trial is as follows. In the summer of 1981, the manager of Dickin's Tavern in Sturbridge overheard a group of people, including Grant and Donovan, having a conversation about an individual who had attached a "phony" night deposit box to a bank, and who had then stolen and cashed the checks which had been deposited therein. One of the defendants had said that the scheme sounded like "a helluva'n idea." A few months later, on October 1, 1981, Grant went to the foreman of the M.G. Sheet Metal Company in Southbridge with a sketch of an aluminum box which he wanted constructed. Grant told the foreman that the box was to be used as a paper shredder. The foreman testified at trial that the box made for Grant was "similar" to a bank night deposit box. ²

The district service manager for Diebold, Inc., in Plainview, New York, also testified. He stated that, in early October, 1981, a man he later identified as Donovan purchased several parts, including the locking mechanism, for a Diebold night deposit box. Donovan allegedly told the Diebold employee that he wanted the parts to refurbish a night depository which he had salvaged from a junk yard.

Grant returned to the sheet metal factory about a week after his initial visit. He paid $264.60 in cash and picked up the box he had ordered, but then returned a few days later and requested that modifications be made to it. Grant later returned with Donovan, who looked at the box. Grant requested certain further changes, including the addition of a lock which Grant had brought with him. Grant alone picked up the final version of the box in late October. On November 2, 1981, Grant wrote a check for $151 to pay for the modifications. The check was returned for insufficient funds, and at some time in December Grant paid for the modifications in cash.

On Monday, November 30, 1981, the customer service manager at the Baybank Valley Bank in Springfield arrived at work and found fewer than the expected number of overnight deposit bags in the vault connected to the bank's night deposit box. Investigation revealed that deposits belonging to seven different bank customers, totalling an estimated $37,000, were missing. Some of the individuals who had made deposits on the evening of November 29 testified that the night deposit box seemed to protrude from the side of the building somewhat farther than normal, or that their keys did not work smoothly in the lock, or that, upon opening the box, they could see the bags of other depositors.

On the same morning on which the deposits were discovered missing, a black Cadillac automobile with a flat tire was found abandoned in the parking lot of a church, approximately one-half mile from the bank. The pastor of the church had not seen the automobile there on the previous evening. The police removed the Cadillac at the pastor's request, and later found inside it a motor vehicle citation made out to Donovan, and an expired license plate registered to the Village Steak House. On December 9, a man identifying himself as Robert Grant, the owner of the Village Steak House, called the police to arrange for the Cadillac to be released from the police tow yard. He never arrived to remove the automobile.

On December 10, the police executed a warrant for the search of Donovan's home, and found two photographs of a night deposit box. They also found $1,800 in cash in Donovan's wallet. Both Donovan and Grant were arrested shortly thereafter. Grant had over $500 in cash on his person at the time of his arrest. Testimony was also presented at trial to the effect that Grant, while being held at the Hampden County House of Correction in December of 1981, had asked an acquaintance to corroborate an alibi for him for the weekend of November 28-29. In April, 1982, while out of jail on bond, Grant told another individual that he had robbed a bank by using a phony night deposit box. Additional evidence was brought forth at trial about the relative financial condition of the defendants both before and after the deposits were discovered missing. There was testimony to the effect that Grant had paid back $1,900 in debts to acquaintances in early December, and had loaned another person $1,000. On December 4, Donovan had bought an automobile at an auction for $4,000 cash.

On March 11, 1983, a jury found both defendants guilty on each of the seven indictments for larceny. A single justice of this court granted the defendants' motion for a stay of execution of their sentences, and we granted the defendants' petition for direct appellate review of their convictions.

1. The "Surprise" Witnesses

The defendant Grant first argues that the trial judge erred in admitting the prejudicial testimony of two purportedly "surprise" witnesses. The Commonwealth submitted a list of prosecution witnesses to the defense prior to the trial. This list did not include the names of Jacqueline Hollis or her husband, John Hollis. Nonetheless, these two Connecticut residents came forward on the second day of trial after being informed by a friend about television coverage of the case. Voir dire testimony was taken. In essence, Mrs. Hollis stated that Grant had admitted to her that he had robbed a bank by using a phony night deposit box. John Hollis stated that Grant had requested him to corroborate an alibi for the weekend of November 28-29, 1981. The judge admitted this testimony over the objection of Grant's counsel, who claimed that the prosecution knew of the witnesses prior to trial, but did not disclose their existence in a timely fashion.

We conclude that admission of the Hollises' testimony was entirely appropriate. First of all, contrary to the contentions made by defense counsel, there is nothing in the record which suggests that the Commonwealth was aware of the Hollises until they came forward voluntarily. Thus there can be no inference that the prosecution acted in bad faith by failing to disclose their existence. See Commonwealth v. Costello, 392 Mass. 393, 400, 467 N.E.2d 811 (1984) (evidence properly admitted where "prosecution played an apparently blameless role" in the delayed disclosure). See also Commonwealth v. Cundriff, 382 Mass. 137, 149, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). However, even if there were some improper delay in disclosure, Grant is nonetheless not entitled to a new trial. We have recognized that "[t]he standards for the application of sanctions for delayed disclosure" of exculpatory and inculpatory evidence are similar. Commonwealth v. Baldwin, 385 Mass. 165, 175 & n. 10, 431 N.E.2d 194 (1982). In such cases, we determine whether the defense, if provided with disclosure in a timely fashion, would have "been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed." Id. at 175, 431 N.E.2d 194, quoting Commonwealth v. Wilson, 381 Mass. 90, 114, 407 N.E.2d 1229 (1980). In other words, in cases involving the delayed disclosure of material evidence, the defendant is required to make some showing of prejudice. Commonwealth v. Costello, supra, 392 Mass. at 398, 467 N.E.2d 811. Commonwealth v. Cundriff, supra, 382 Mass. at 151, 415 N.E.2d 172.

In this case Grant has made no effort to demonstrate how additional time to investigate the Hollises might have been of help to his defense. Nor is there any indication that either defense counsel sought a continuance so that such investigation might be conducted. See Commonwealth v. Cundriff, supra at 150, 415 N.E.2d 172. Furthermore, defense counsel did manage to pursue a vigorous cross-examination of the Hollises, see Commonwealth v. Costello, supra, 392 Mass. at 398, 467 N.E.2d 811, which successfully elicited certain facts bearing on possible bias in their testimony. In light of these circumstances, and in light of the other evidence adduced at trial implicating Grant in the scheme, we cannot conclude that any delayed disclosure of the existence of these witnesses was sufficiently prejudicial to warrant a new trial.

2. Motions for Required Findings of Not Guilty

At the close of trial, the defendants moved for a required finding of not guilty, Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), on the ground that there was insufficient evidence to demonstrate that either defendant had committed larceny. ³ We conclude that the judge's denial of both of these motions was correct.

In reviewing the denial of a motion for a required finding of not guilty, "we consider whether the evidence, in the light most favorable to the Commonwealth, 'is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and, whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable...