Com. v. Kenneally

• Decision Date: 01 July 1980
• Citation: 10 Mass.App.Ct. 162,406 N.E.2d 714
• Parties: COMMONWEALTH v. Lawrence KENNEALLY.
• Court: Appeals Court of Massachusetts

Page 714

406 N.E.2d 714

10 Mass.App.Ct. 162

COMMONWEALTH v. Lawrence KENNEALLY.

Appeals Court of Massachusetts, Barnstable.

Argued March 12, 1980.

Decided July 1, 1980.

John P. Courtney, Newton (Thomas J. Herbert, Pembroke, with him), for defendant.

John A. Mendlesohn, Asst. Atty. Gen., for the Commonwealth.

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

HALE, Chief Justice.

The defendant was convicted on nine indictments charging larceny of property worth more than one hundred dollars and on two charging larceny of property worth less than one hundred dollars. ¹ The defendant was the proprietor of Yankee Insurance Agency (Yankee). The indictments against him were based on a series of insurance transactions between March 10, 1977, and November 18, 1977. The defendant has claimed various errors in the trial, which we shall discuss below. We review first the denial of the defendant's motions for directed verdicts on all eleven indictments. We begin our discussion of each indictment by summarizing the evidence relevant to it in accordance with the principles stated in Commonwealth v. Latimore, --- Mass. ---, --- - ---^a 393 N.E.2d 370 (1979).

The Commonwealth proceeded on the theory that the defendant had committed larceny by false pretences, which requires proof (1) that a false statement of fact was made, (2) that the defendant knew or believed the statement to be false when he made it, (3) that the statement was made with the intent that the person to whom it was made should rely upon its truth, and (4) that that person did rely on it as true and parted with personal property as a result. Commonwealth v. Leonard, 352 Mass. 636, 644-645, 227 N.E.2d 721 (1967). The question as to each indictment is whether sufficient evidence was presented on those elements.

INDICTMENTS 38478 AND 38480.

These two indictments charged larceny from Alice Booth on or about November 18, 1977, and October 20, 1977, respectively. Much of the evidence came from the testimony of one Vicino, who had worked for the defendant as an insurance salesman. On October 20 Vicino went to the home of Booth, who was seventy-nine years old at the time. He had been told by the defendant that Booth had written a check for $1,750, which had been returned for insufficient funds, and that he should obtain a cashier's check from her for that amount. Vicino took Booth to a bank, where she purchased a $1,750 check and turned it over to Vicino. He gave the check to the defendant, who gave him $875. No insurance application was filled out at that time.

Approximately one to one and one half weeks later, the defendant telephoned Vicino and told him that it was "time to pick up another check" from Booth. The defendant said that "the State was going to get all of her money so why shouldn't I get a piece of the action." When Vicino refused, the defendant told him that he "was in as deep as (the defendant) was." The defendant called him four or five times after that to encourage him to return to Booth's home. He told Vicino that Booth "wouldn't know one day from another" and that he had "nothing to worry about." The defendant then came to Vicino's home and told him to pick up the check. He again told Vicino that he "was in it as deep as (the defendant) was" and that Vicino had no choice. On November 18, 1977, Vicino again took Booth to the bank, where she purchased a check for $1,530. After Vicino gave the check to the defendant, the defendant paid him $750.

In December the defendant and Vicino made out an application for an annuity showing a deposit in the amount of $1,750 from Booth. The application was dated October 19, 1977. The defendant told Vicino that he had been questioned by the Barnstable police, that there was supposed to be an application on file, and that the application they completed in December was to be "submitted." That application was later found in the defendant's file. After Vicino stopped working for the defendant in December, 1977, the defendant told him that he, Vicino, was the one being sought by the police and that it appeared that he "was the brains behind the whole thing." The defendant suggested that Vicino leave the State.

Vicino's testimony, along with the various checks, deposit slips and applications introduced in evidence provided ample support for a finding that the defendant had committed larceny from Booth on October 20, 1977, and on November 18, 1977. The incriminating statements made by the defendant to Vicino were evidence that he had formed an intent to steal from Booth before he sent Vicino to pick up the November 18 check. The jury could also have inferred from those statements that the defendant had intended to steal from Booth when he sent Vicino to pick up the October 20 check, and that his plan to provide the police with a backdated application was to hinder their investigation of his activities.

INDICTMENT 38481.

The following evidence was introduced to prove larceny from Alice Booth on August 23, 1977: applications dated April 18, 1977, for three policies to be issued by United American Insurance Company (United) to Booth, showing premiums paid to the defendant totalling $539.40; a deposit ticket dated April 20, 1977, found in the defendant's files, with a notation on its back, "597.00 Prem. to United American for Alice Booth;" and two checks issued by Booth to Yankee dated July 25, 1977, and August 18, 1977, each for $597.28. United received no application from Yankee for Booth dated April 18, 1977, other than the three that were in evidence. Although it is not clear what significance the prosecution ascribed to each of the checks dated July 25 and August 18, we need not consider them, as we are satisfied that the jury could have found that the defendant committed larceny of less than $100 by accepting applications for policies on April 18, 1977, the total premiums for which were $57.60 less than the $597.00 which his April 20 deposit ticket indicates he received from Booth. See Commonwealth v. Schnackenberg, 356 Mass. 65, 73-74, 248 N.E.2d 273 (1969). The inference that the overcharge was criminal is further supported by the statements later made by the defendant to Vicino which we have discussed on indictments 38478 and 38480, and by the evidence introduced in those cases of the defendant's criminal conduct in connection with the sale of other insurance to Booth. See Commonwealth v. Wilson, 355 Mass. 441, 443, 245 N.E.2d 439 (1969). The defendant has made no argument that the indictment charging larceny on or about August 23, 1977, might not be supported by proof of a larceny in April, 1977, and we do not discuss that question. See Commonwealth v. Corcoran, 348 Mass. 437, 442, 204 N.E.2d 289 (1965).

INDICTMENTS 38482 AND 38483.

These two identically worded indictments charge larceny from Booth on March 10, 1977. The evidence presented on one of these indictments (it is not clear which) consists of an approved application for a United policy for Booth with an annual premium of $362.17, dated March 4, 1977, and reciting that such a policy was issued March 15, 1977; an Academy Life Insurance Company (Academy) policy and a rider thereto with an aggregate annual premium of $317.90, issued March 5, 1977; an unapproved application for an American Fidelity Life Insurance Company (American) policy with a $1,200 annual premium, dated March 4, 1977; and a $2,200 check issued by Booth to Yankee dated March 4, 1977. The Commonwealth relied on that evidence as sufficient to prove larceny of the difference between the total of the premiums for the three policies ($1,880.07) and the amount of the Booth check ($2,200). There was no evidence other than proximity in time to link the policies and the check. ² Thus, regardless of any fraudulent scheme which could have been found by the jury, the existence of any overcharge for these three premiums was purely conjectural. See Commonwealth v. Louis Constr. Co., 343 Mass. 600, 606, 180 N.E.2d 83 (1962).

The other March 10 indictment arose from the same transaction insofar as the policy application to American was concerned. Here the prosecution relied on the additional evidence that that application had been cancelled before any policy was issued and that a $1,200 premium check written by the defendant which had accompanied the application had been returned to him by American. Even if it could have been found that Booth's $2,200 payment to the defendant was made on account of premiums which included the $1,200 one to American, there was no evidence that he committed larceny by false pretences when he accepted that payment from Booth, and the fact that he apparently forwarded his own $1,200 check with the application cuts the other way. Nor was there sufficient evidence to support a conviction on an embezzlement theory. An officer of the bank in which the defendant maintained a checking account, who testified at the trial that the defendant's $1,200 check to American had not been presented for payment, could have been asked if her records showed whether the defendant had issued a check to Booth when his $1,200 check was returned to him or whether he had later issued a check for a policy for Booth from a different company in the same amount. She was not so questioned, nor was any other evidence introduced which would have shown either payment to Booth of the money received or the absence of such payment. Thus, although the jury could have found from the other evidence of the defendant's scheme to defraud Booth that he had had the necessary intent to retain the $1,200 when his check was returned by American, there was no evidence that he did in fact retain it. The jury could not have found beyond a reasonable doubt that the defendant stole the $1,200. See Commonwealth v. Latimore, --- Mass. at --- - --- ^b 393 N.E.2d 370.

INDICTMENT 38488.

On August 4, 1977, Vicino sold an American annuity contract to one Basil Molony and received a $1,200 check from him. Vicino...