Com. v. Sitko

• Decision Date: 04 April 1977
• Citation: 372 Mass. 305,361 N.E.2d 1258
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1258

361 N.E.2d 1258

372 Mass. 305

COMMONWEALTH v. Edward SITKO.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Dec. 8, 1976.

Decided April 4, 1977.

Joseph F. Flynn, Boston (Steven A. Clark, Cambridge, with him), for defendant.

James J. Higgins, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant appeals from his conviction as an accessory to the crime of breaking and entering a building in the daytime with the intent to commit larceny.

The defendant argues three major issues. (1) The original indictment alleged that an unknown person (John Doe) 'did break and enter in the night time.' On motion of the Commonwealth, the indictment was amended to refer to daytime instead of nighttime. The defendant challenges the allowance of the Commonwealth's motion to amend the indictment, claiming that the judge had no authority to allow such a motion, and that, even if he did, the allowance of the amendment was prejudicial in the circumstances. (2) The defendant next argues that his motion for a directed verdict should have been allowed. (3) Finally, the defendant challenges the revision of his sentence several months after it was imposed.

There was no error in the defendant's conviction. The judge had the power to revoke and revise the defendant's sentence, but, because at least one inappropriate circumstance was considered by the judge in revoking and revising that sentence, the allowance of the Commonwealth's motion to revoke and revise must be vacated.

1. There was no error in the allowance of the prosecution's motion to amend the indictment.

The defendant first was brought to trial in April, 1972, on the charge of being an accessory to the crime of breaking and entering in the nighttime. During the course of the presentation of its case, the Commonwealth moved to amend the indictment by deleting any reference to nighttime and substituting the words 'day time.' The motion was allowed over the defendant's objection, and immediately the judge allowed the defendant's motion for a mistrial.

The defendant argues that the amendment of the indictment was a substantial, and hence constitutionally impermissible, change in the indictment, and that, in any event, the allowance of the motion was prejudicial and thus not authorized by G.L. c. 277, § 35A. ¹

In weighing the defendant's claim that the amendment wrought a substantial change, we assess first the relationship of the two crimes. Although the crime of breaking and entering in the nighttime and the crime of breaking and entering in the daytime are expressed in separate sections of G.L. c. 266 (see §§ 16 and 18, respectively), a verdict of breaking and entering in the daytime may be entered on an indictment charging breaking and entering in the nighttime. We have treated breaking and entering in the daytime in effect as a lesser offense within the aggravated offense of breaking and entering in the nighttime. See Commonwealth v. Lavery, 255 Mass. 327, 333--334, 151 N.E. 466 (1926); Commonwealth v. Clifford, 254 Mass. 390, 392, 150 N.E. 181 (1926); Commonwealth v. Reynolds, 122 Mass. 454, 456 (1877). Therefore, an amendment of the indictment in this case was not even necessary in order to sustain a charge and conviction of breaking and entering in the daytime.

No significant constitutional question concerning the protective role of the grand jury was involved here because the change was not one of substance in the sense in which we have used that word. See Commonwealth v. Jervis, --- Mass. ---, --- - --- ^a, 335 N.E.2d 356 (1975); Commonwealth v. Parrotta, 316 Mass. 307, 312, 55 N.E.2d 456 (1944); Commonwealth v. DiStasio, 294 Mass. 273, 278, 1 N.E.2d 189 (1936); Commonwealth v. Snow, 269 Mass. 598, 606, 169 N.E. 542 (1930). The circumstance that an amendment was unnecessary is most persuasive in demonstrating that the amendment did not make a change of substance. The 'substance of the (accused's) constitutional rights secured under the grand jury system is not impaired' (Commonwealth v. Snow, supra at 606, 169 N.E. at 545), by an amendment of an indictment which reduces the crime charged to a lesser included offense. See Commonwealth v. Holley, 3 Gray 458, 459 (1855).

The amendment of the indictment was authorized by G.L. c. 277, § 35A, because the defendant was not prejudiced by the allowance of the motion to amend. Obviously, the reduction of the charge was to the defendant's immediate advantage because the penalty on conviction of the lesser offense is less than that for the greater offense. It is also obvious that the defendant cannot be charged with the greater offense again. In addition, the allowance of the defendant's motion for a mistrial cured any possible prejudice by surprise in the trial.

The only other suggestion of prejudice the defendant advances is that the action of the prosecutor was a disguised nolle prosequi which could not be granted without the defendant's consent, once trial had commenced. We have recognized the power of a prosecutor, even during trial, to terminate prosecution of a portion of an indictment with the result that the defendant is to be treated as acquitted of the charge or charges which the prosecutor has abandoned. Commonwealth v. Massod, 350 Mass. 745, 748--750, 217 N.E.2d 191 (1966); Commonwealth v. Dascalakis, 246 Mass. 12, 18--19, 140 N.E. 470 (1923). Thus, if, without court approval, the prosecutor had chosen to abandon the charge of breaking and entering in the nighttime, he could have done so. See Commonwealth v. Myers, 356 Mass. 343, 347 n. 1, 252 N.E.2d 350 (1969). That is not what happened here. ²

2. The defendant's motion for a directed verdict was properly denied. Viewing the evidence in the light most favorable to the prosecution, as we must, the jury's verdict was warranted.

Sometimes between the close of business on Saturday, August 1, 1970, and the opening of business on Monday, August 3, 1970, the main building of a lumber company in South Dennis was broken into. A safe, located in a plywood enclosure, was forced open and money taken from it. That safe's enclosure was protected by a perimetric burglar alarm which was connected with the local police station over telephone wires. However, that alarm was not activated during the relevant times. The wires ran from the area of the safe to a telephone junction box in a room below the safe. Two wires in the telephone junction box had been stripped of insulation and alligator clips attached to those wires so as to provide power over wires connected to six-volt batteries. This connection effectively prevented an activation of the alarm when wires in the protective enclosure in the area of the safe were cut.

The defendant was seen on the premises on Saturday, August 1, dressed like a telephone lineman, although he did not have a normal complement of tools in his belt. He inspected a junction box at one building which was not broken into and inquired about the location of the 'electronic system' in another building. The defendant worked for at least one-half hour in the area of the telephone junction box in the main building where the stripped wires and batteries were discovered on Monday morning. The witness who saw the defendant working at this junction box could not say what the defendant was doing.

We think this evidence and the inferences which reasonably can be drawn from it are sufficient to warrant a finding that the defendant was an accessory to the crime of breaking and entering the lumber company's main building with intent to steal. The defendant was seen on the premises working in the area of a junction box where, within forty-eight hours, wires were found to have been stripped and substitute power furnished so as to neutralize the warning system in the vicinity of the safe. The defendant generally observed the operation of the warning system on the premises. He had the opportunity to determine that the only alarm system related to a safe in the main building and that the alarm would not be set off by a forced entry into the premises. An inference is justified that the defendant advised and counseled the persons who forced their way into the building, by-passed the alarm system, and stole money from the safe. Such evidence is sufficient to support a finding that the defendant was an accessory to the crime of breaking and entering with intent to steal.

The defendant argues that, even if there is evidence to support his involvement, the evidence relates at most to the crime of larceny from the safe and not to breaking and entering the premises. He points out that he was charged with being an accessory to the crime of breaking and entering the premises and not with being an accessory to larceny or attempted larceny. We think the defendant's study of the alarm system might well be sufficient support to the charge concerning breaking and entering, but we need not rest on that ground. One who counsels and assists in disclosing facts concerning the goal of the entry of premises is an accessory to the crime of breaking and entering with intent to commit larceny in those premises. The defendant's conduct facilitated the achievement of the purpose of breaking into the premises and thus be counseled and encouraged the illegal entry of the premises for the purpose of larceny from the safe. See Commonwealth v. Perry, 357 Mass. 149, 151--152, 256 N.E.2d 745 (1970); Commonwealth v. Dahlstrom, 345 Mass. 130, 132, 185 N.E.2d 759 (1962).

3. The defendant contends that the judge had no authority to revoke and revise his sentence because the Commonwealth's motion to revoke and revise was allowed more than sixty days after the imposition of sentence. He also challenges the propriety of the judge's action, assuming the judge had authority to revise the sentence.

On April 22, 1974, the day the defendant was found guilty, the judge sentenced him...