Com. v. Kirkpatrick

• Decision Date: 22 November 1988
• Docket Number: No. 88-P-774,88-P-774
• Citation: 530 N.E.2d 362,26 Mass.App.Ct. 595
• Parties: COMMONWEALTH v. Warren KIRKPATRICK.
• Court: Appeals Court of Massachusetts

Page 362

530 N.E.2d 362

26 Mass.App.Ct. 595

COMMONWEALTH v. Warren KIRKPATRICK.

No. 88-P-774.

Appeals Court of Massachusetts Franklin.

Argued Oct. 11, 1988.

Decided Nov. 22, 1988.

Wendy Sibbison, Greenfield, for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for the Com.

Before GREANEY, C.J., and ARMSTRONG and SMITH, JJ.

GREANEY, Chief Judge.

The defendant appeals from his conviction of receiving a stolen boat, motor, and trailer. He argues that (1) the Commonwealth's evidence that he knew the property was stolen was insufficient as matter of law, (2) there was error in the jury instructions, and (3) the prosecutor engaged in improper cross-examination. We affirm the conviction.

There was evidence of the following at trial. Over the weekend of September 8-9, 1984, Bruce Davin left his fifteen and one-half foot beige Browning fiberglass boat, 140 horsepower Mercury outboard motor, and E-Z Loader trailer at a marina in Orange for repairs. On September 10, 1984, the owner of the marina found that the steel cable securing the boat had been cut, and that the boat, motor, and trailer were gone. The theft was reported to the State police.

On May 30, 1987, Davin was riding in a friend's boat on a reservoir in Vermont when he spotted a boat that he thought could be his stolen boat. The boat was being operated by the defendant, who was then the police chief of Ashfield. Wishing to investigate further, Davin found a game warden who accompanied him to inspect the boat and to question the defendant. When confronted by Davin and the game warden, the defendant stated that he had purchased the boat legally for $1200, but he did not reveal the name of the seller. As the game warden began inspecting the boat, however, he observed a number of peculiarities about the boat's condition. The warden noticed that the boat had been crudely repainted blue and that some beige paint (the boat's original color) was still showing through. The serial number was now located on a metal tag screwed into the wrong side of the boat's stern, and a metal tag had been screwed over the area where the serial number, which had been obliterated, had originally appeared. Also, the number on the motor had been removed and a new number substituted. As a result of his inspection, the warden asked the defendant to bring the boat to a boat landing to discuss the matter further with the local Vermont police.

During the investigation into the defendant's acquisition of the stolen property conducted by a Vermont police officer, it was further discovered that the trailer that carried the boat had been crudely repainted black and it lacked any serial number. In the discussion that ensued, the defendant told the police officer that he had bought the boat approximately two years before from an unnamed deputy sheriff. Then, in an aside with the officer, the defendant flashed his police identification apparently to let the officer know of his position as police chief. At this time the defendant told Davin that he acquired the boat from a police officer who was going through a divorce. The defendant then also told Davin that he would return the boat to him that day. Later, the defendant called Davin and expressed an interest in buying the boat back and volunteered to "look into" the boat's history. The defendant told Davin that the "boat would be hard to trace," because, although he insisted he had purchased it from "somebody in law enforcement," he maintained that it had come to him with a transfer of registration from Florida.

The State police were eventually called into the case. Upon questioning, the defendant told the investigating State police officer that he had purchased the boat from a guard at the Franklin County house of correction, whom he named. He could not, however, give the officer a date for the purchase other than suggesting that he had acquired the boat sometime prior to June, 1985. At trial, the named guard testified that the defendant twice asked him to corroborate this false story. The guard had refused and the defendant eventually told him that he had lied to the State police because, if he revealed the true source of the property, "he'd end up in a river."

The day after being questioned the defendant went back to the State police and voluntarily gave a new statement because, as he put it, "My conscience was getting to me. I, uh, know the deals up, I did it. I can't live with myself." The defendant recounted that on April 24, 1985, he had gone to Cape Cod to visit an aunt (whom he never did see) and had noticed the boat and trailer parked off the southbound side of Route 3. On his way back to Ashfield one or two days later, the boat and trailer were still there, so, according to the defendant, he "backed up to the friggin' thing, [and] ... dropped it on my [trailer] ball...." The defendant also admitted in his statement that he knew that the boat and trailer had been either abandoned or stolen, but he decided to take them anyway.

1. The defendant proposes a technical argument that the Commonwealth's proof that he knew the property was stolen was insufficient as matter of law. He points out that the Commonwealth stated in its bill of particulars that its proof of the crime would depend in part on the fact that the boat's identification numbers had been obliterated or altered. However, he argues, the Commonwealth failed either to allege in the particulars that the defendant actually knew of the tampering with the identification numbers or to establish that fact at trial. In the defendant's view, this left the Commonwealth's proof of the scienter element of the crime resting on nothing more than consciousness of guilt evidence (lies that the defendant told investigators), which by itself cannot support a judgment of conviction. Thus, the defendant concludes, he was entitled to the entry of a required finding of not guilty.

There is nothing to the argument. The particulars in this case were not intended to be, nor could they reasonably have been taken as, a complete statement of all the Commonwealth's evidence. See Commonwealth v. Hare, 361 Mass. 263, 270, 280 N.E.2d 138 (1972). The particulars were a general outline of the Commonwealth's proof, and they were stated in sufficient detail to give the defendant adequate notice of the factual basis of the charge. Commonwealth v. Leavitt, 17 Mass.App.Ct. 585, 588, 460 N.E.2d 1060, cert. denied, 469 U.S. 835, 105 S.Ct. 130, 83 L.Ed.2d 71 (1984). The Commonwealth did not have to allege in its bill of particulars that the defendant actually knew of the tampering with the identification numbers before the Commonwealth could introduce circumstantial evidence that would warrant that inference. The evidence, at trial, summarized above, was sufficient to allow the jury to infer that the defendant had caused, or at least knew of, the tampering with the identification numbers of the boat and motor.

Moreover, the Commonwealth's evidence formed a strong fabric of circumstantial proof from which the jury could infer the required scienter element of the crime. As to scienter, a defendant may be convicted of receiving stolen property "if he either knew or believed [the] property was stolen property at the time it came into his possession, or at any time while it was in his possession he ascertained that it was stolen property and he undertook to deprive the owner of his rightful use of it." Commonwealth v. Kronick, 196 Mass. 286, 288, 82 N.E. 39 (1907). See Commonwealth v. Peopcik, 251 Mass. 369, 371, 146 N.E. 661 (1925); Commonwealth v. Sandler 368 Mass. 729, 740-741, 335 N.E.2d 903 (1975); Commonwealth v. Settipane, 5 Mass.App.Ct. 648, 651, 368 N.E.2d 1213 (1977). We conclude that the Commonwealth's proof, when considered under the governing standard, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), was sufficient to withstand the defendant's motion for a required finding of not guilty.

2. To prove that the defendant had the requisite state of mind, the Commonwealth relied, in great part, on evidence of his false and misleading statements and his suspicious conduct as the investigation intensified. Because some of this evidence carried overtones of consciousness of guilt, the defendant requested jury instructions on the proper evaluation of such evidence. The judge gave instructions that covered the basic charge recommended in Commonwealth v. Toney, 385 Mass. 575, 582-585, 433 N.E.2d 425 (1982), but he did not give the supplemental charge mentioned in that decision at 585-586 n. 6. See Commonwealth v. Matos, 394 Mass. 563, 565-566, 476 N.E.2d 608 (1985). The defendant maintains that the omission of the supplemental charge requires a new trial.

The instruction on consciousness of guilt requested by the defendant's trial counsel did not clearly request the supplemental Toney instruction. In fact, the requested instruction misstated the law by asking that the jury be told that consciousness of guilt evidence had no probative value. The instructions given by the judge covered the points considered important in the Toney case and made direct reference to the possibility of an innocent explanation on the defendant's part. The defendant's experienced trial counsel made no objection to the charge. Thus, contrary to the defendant's argument, we consider the issue to be before us for review under the substantial risk of a miscarriage of justice standard. Here, because the evidence against the defendant was substantial and because basic Toney requirements were met, we discern no substantial risk of a miscarriage of justice.

3. (a) The judge instructed the jury that, if they found that the defendant was in possession of recently stolen property, they could draw the inference, if they chose to, that he knew the property was stolen. The defendant's trial counsel objected to the instruction. The defendant argues that the approximately eight-month gap between the theft of...