Com. v. Shagoury

• Decision Date: 12 September 1978
• Citation: 380 N.E.2d 708,6 Mass.App.Ct. 584
• Parties: COMMONWEALTH v. Robert SHAGOURY.
• Court: Appeals Court of Massachusetts

Page 708

380 N.E.2d 708

6 Mass.App.Ct. 584

COMMONWEALTH v. Robert SHAGOURY.

Appeals Court of Massachusetts, Middlesex.

Argued June 15, 1978.

Decided Sept. 12, 1978.

James B. Krasnoo, Boston (Stephen J. Buchbinder, Newton Center, with him), for defendant.

Robert M. Raciti, Legal Asst. to the Dist. Atty., Boston, for the Commonwealth.

Before HALE, C. J., and ARMSTRONG and BROWN, JJ.

HALE, Chief Justice.

In May, 1976, the defendant was convicted in the District Court of Somerville on a complaint charging him with the theft of property (miscellaneous cable) having a value greater than $100. He appealed to the Superior Court and after a jury trial held in Middlesex County under G.L. c. 278, §§ 33A-33G, in July, 1977, was found guilty of larceny of property having a value of less than $100. He has now appealed to this court and has argued numerous assignments of error relating to the Superior Court proceeding. After examining the entire record in this case, we conclude that no reversible error is disclosed by the defendant's contentions, and we affirm the judgment of the Superior Court.

In the Superior Court trial there was evidence from which the jury could have found that one Collins and one Moriarty were employed as security representatives by the New England Telephone Company. One of their assignments during September, 1975, was to maintain surveillance of a telephone company warehouse located in Somerville. That warehouse was being used at that time to store telephone equipment and cable.

Collins and Moriarty met at the warehouse at about 7:00 A.M. on Saturday, September 20, 1975. They observed no other telephone company employees in the warehouse area at that time. Moriarty sat in his automobile which was positioned so as to afford him a view of the door of the warehouse. Collins hid himself inside the warehouse in a location above a restroom, where he had a view of the area inside the warehouse. At about 8:00 A.M. Dunphy and Conroy, two employees of the telephone company, arrived at the warehouse. They opened the door and drove a blue panel truck or van belonging to Dunphy into the warehouse. They stopped the truck about twenty-five to thirty feet from Collins' position on the restroom roof and closed the door.

After Dunphy and Conroy had been in the warehouse for about five minutes, they began uncoiling several types of cable from reels which were stacked in the warehouse. The cable consisted of copper wires wrapped in insulating material. Dunphy and Conroy uncoiled various lengths of Cable from the reels, cut them off, tied them into small coils and threw the coils into a pile near Dunphy's truck. At about 8:45 the defendant, who was employed as a foreman in the Somerville warehouse, arrived at the warehouse and sounded the horn of his green Lincoln sedan. Conroy opened the door and the defendant drove the sedan into the warehouse He parked just behind Dunphy's truck, and Conroy closed the door. The defendant then assisted Conroy and Dunphy in removing cable from the reels until about 9:15. The men then engaged in a conversation, in which the defendant was heard to remark, "You have got enough. He could come in at any moment." Dunphy passed some money to the defendant. Dunphy and Conroy then used a forklift to load cable into Dunphy's truck. The defendant opened the door and moved his automobile out of the warehouse. Conroy and Dunphy then left in the truck.

Moriarty followed the truck in his automobile. Collins quietly slipped out of the warehouse without revealing his presence to the defendant, who remained straightening out the area. Collins got into his automobile and drove to a junkyard in Boston, where he met Moriarty. Moriarty confronted Dunphy and Conroy at the junkyard as they were in the process of unloading the cable from Dunphy's truck. He contacted the Boston police, and Dunphy and Conroy were arrested on larceny charges. Later the defendant was also charged with larceny. Dunphy and Conroy ultimately pleaded guilty to charges relating to the theft of the cable.

1. We address first the defendant's assignment of error which alleges that the denial of his motions to dismiss and for a directed verdict based upon the Commonwealth's introduction of certain evidence at trial was in violation of the principles of collateral estoppel. He argues that the Commonwealth's case was dependent on the introduction of evidence which had already been introduced at an earlier trial in Suffolk County that had resulted in the defendant's acquittal.

In the interim between the defendant's conviction on the present complaint in District Court and his trial in Superior Court, the defendant was tried in the Superior Court in Suffolk County on two indictments charging him with larceny. Under the first indictment the defendant was charged with the theft of eighty-eight reels of cable from the telephone company on or about July 22, 1975. The second indictment charged the defendant with the theft of six reels of cable from the telephone company on or about August 13, 1975.

In the Suffolk County trial there was evidence tending to show that on July 22, 1975, the defendant had directed a trucker, who had arrived at the Somerville warehouse to deliver eighty-eight reels of cable, to take his load to a private storage facility located in Roxbury. At that location the cable had been unloaded with the assistance of Dunphy. On August 13, 1975, the defendant had gone to a warehouse in Fall River and had removed six reels of telephone company cable for the stated purpose of transferring them to the Somerville warehouse. A telephone company employee testified that the telephone company possessed no record of either a July 22 or an August 13 shipment of cable to the Somerville warehouse. The employee also testified that the defendant was not authorized to engage private warehouse space on behalf of the telephone company. It was the Commonwealth's contention that under the circumstances the jury could infer that the two loads of cable had been stolen by the defendant in a joint venture with Dunphy and others in a continuing course of larceny from the telephone company from July 22 to September 20, 1975. To further support that position the Commonwealth called Collins to the stand and had him testify with regard to the events which had occurred at the Somerville warehouse on September 20, 1975. The defendant argues that, as the Commonwealth's presentation of Collins' testimony placed the issue of the defendant's involvement in the theft of cable on September 20 before the jury in the Suffolk County trial and as the jury must have decided that issue against the Commonwealth in finding the defendant not guilty, the Commonwealth was thereby foreclosed from relitigating the question of his participation in the September 20 theft in the present trial. We do not agree.

The doctrine of collateral estoppel operates to insure that due process is not violated in consecutive criminal proceedings against the same defendant by foreclosing the relitigation of those issues in the defendant's second trial which were determined by the verdict in his earlier trial, even though the offenses charged in the two trials may not be the same. Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948). Harris v. Washington, 404 U.S. 55, 56, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971). Where the prior proceeding against the defendant results in a general verdict of acquittal, the court must examine the evidence, pleadings and other relevant material from the prior proceeding to determine whether a rational jury could have grounded their verdict upon some issue other than that which the defendant seeks to foreclose from consideration in the later proceeding. Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Ottomano v. United States, 468 F.2d 269, 272 (1st Cir. 1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 949, 35 L.Ed.2d 260 (1973). The defendant has the burden of establishing that the issue of fact which he seeks to foreclose from consideration in the subsequent proceeding was necessarily determined in his favor by the verdict in the prior proceeding. United States v. Tramunti, 500 F.2d 1334, 1346 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). United States v. King, 563 F.2d 559, 561 (2d Cir. 1977). The defendant in this case has failed to sustain that burden.

For assistance in determining whether the issue of the defendant's participation in the September 20 theft was necessarily determined in his favor by the jury in the Suffolk County trial, we look to the instructions which were given to the jury by the judge during the Suffolk County trial. See Sealfon v. United States, supra, 332 U.S. at 579, 68 S.Ct. 237. Turner v. Arkansas, 407 U.S. 366, 369, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972). The judge instructed the jury both prior to allowing Collins to testify and during his general charge at the close of the evidence that they were not to consider Collins' testimony in determining whether the defendant had committed any thefts other than those which were alleged to have occurred on July 22 and August 13. The judge further instructed the jury that they could properly consider Collins' testimony only as it tended to establish elements such as intent, motive, scheme, or design with regard to the proof of the indictments against the defendant. In view of these instructions it appears that the jury at the Suffolk County trial could only have considered Collins' testimony for quite limited purposes. Accordingly, we can perceive of several rational bases upon which the Suffolk County jury could have acquitted the defendant on the charges that he had committed the July and August thefts in Suffolk County without having determined that the defendant had not participated in the September 20 theft. For example, the jury, while believing the testimony concerning the September 20...