Com. v. Souza

• Decision Date: 07 April 1986
• Citation: 397 Mass. 236,490 N.E.2d 1173
• Parties: COMMONWEALTH v. Reginald SOUZA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1173

490 N.E.2d 1173

397 Mass. 236

COMMONWEALTH v. Reginald SOUZA.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 6, 1986.

Decided April 7, 1986.

Edward Gold, Brockton, for defendant.

Marcy Cass, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant, an indigent, was convicted of larceny in the Boston Municipal Court Department, jury-of-six session, and was sentenced to a term of six months' imprisonment. On appeal he argues that (1) the judge erred in refusing to grant the defendant's motion for a required finding of not guilty; (2) the conviction should be reversed because there was error in the denial of a continuance of the trial pending appeal of decisions that the defendant not be provided with the costs of a polygraph examination and a transcript of the prior bench trial. We find no basis for either contention and affirm.

On May 29, 1984, Officer James Carty filed a complaint in the Boston Municipal Court charging the defendant with larceny of two radio speakers valued at over $100, which were the property of one David Frost. In a jury-waived trial the defendant was found guilty and sentenced to a term of six months' imprisonment. On appeal to a jury-of-six session, the defendant filed several motions. On October 30, 1984, a judge denied the defendant's motion for a polygraph examination at the expense of the Commonwealth and made findings. First, the judge found that the defendant had failed to meet the procedural requirements of G.L. c. 261, § 27B (1984 ed.), with respect to a properly executed affidavit of indigency. Second, relying on our decision in Commonwealth v. Lockley, 381 Mass. 156, 163, 408 N.E.2d 834 (1980), the judge found that a polygraph examination would not be "reasonably necessary." The defendant appealed from that decision, and also filed several new motions, among which was a motion for a transcript of the jury-waived trial. Another judge denied that motion, ruling that (1) the motion was not timely filed; (2) the affidavit of indigency was not in compliance with G.L. c. 261, §§ 27B & 27C (1984 ed.); (3) the motion was not marked for hearing seasonably; and (4) the defendant failed to attach an affidavit of fact as required by Mass.R.Crim.P. 13(a )(2), 378 Mass. 871 (1979). The defendant again appealed from the denial of that motion and later filed a modified affidavit of indigency. The defendant also filed a motion for continuance pending appeal of the denial of motions for a polygraph examination and a transcript, which was not granted. At the close of the Commonwealth's case, the defendant filed a motion for a required finding of not guilty, which the judge denied. The jury returned a verdict of guilty. The defendant appealed to the Appeals Court and we took the case on our own motion.

1. Sufficiency of the evidence. The defendant's motion for a required finding of not guilty was based upon the allegation that the Commonwealth did not offer evidence which showed who owned the speakers which were the subject of the larceny. General Laws c. 266, § 30 (1) (1984 ed.), provides that "[w]hoever steals ... the property of another ... shall be guilty of larceny...." It is an essential element of the crime charged that the property stolen must be "the property of another." It is sufficient if the evidence and the permissible inferences from that evidence "are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion" that the Commonwealth has established beyond a reasonable doubt that the property belonged to someone other than the defendant. Commonwealth v. Casale, 381 Mass. 167, 168, 408 N.E.2d 841 (1980). Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

Direct proof of ownership, though preferable, is not essential, since the statute only requires a showing that the defendant was not the owner. As we stated in Commonwealth v. Kiernan, 348 Mass. 29, 50, 201 N.E.2d 504 (1964), cert. denied sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800 (1965), "[a]n averment and a showing that a possessory or other property interest in the thing stolen is in someone other than the thief and proof that the thief knew that he had no right to the property taken are sufficient." Indeed, G.L. c. 277, § 25 (1984 ed.), provides that indictments for property crimes need not allege the name of the owner of the property in question if that property is described with sufficient certainty. ¹ See Commonwealth v. Kalinowski, 360 Mass. 682, 684, 277 N.E.2d 298 (1971); Commonwealth v. Kozlowsky, 238 Mass. 379, 383, 131 N.E. 207 (1921).

The evidence was sufficient to prove the crime of larceny in this case. The evidence showed that the defendant walked up to a parked automobile at 5 A.M. on a Sunday morning, reached inside and cut the wires attached to the radio speakers (leaving the wires loose). He removed the speakers from the vehicle and placed them in a paper bag, and proceeded directly away from the vehicle. Those acts were sufficiently inconsistent with ownership that it was within the province of the jury to conclude that the speakers were the property of another.

Since there was no requirement to name the owner, the allegation in the complaint that "David Frost" was the owner was unnecessary. ² General Laws c. 277, § 35 (1984 ed.), provides that a defendant "shall not be acquitted by reason of ... failure to prove unnecessary allegations in the description of the crime...." No claim of variance can lie in this case. ³

2. Denial of motion for costs, continuance. The defendant argues that he was denied equal protection, due process, a fair trial, and that his statutory rights under G.L. c. 261, § 27D (1984 ed.), were violated because it was error not to grant the defendant's motion for continuance pending appeal of the denials of his motions for costs. ⁴ Normally, no error arises from the denial of a request for continuance absent an abuse of discretion. Commonwealth v. Appleby, 389 Mass. 359, 370, 450 N.E.2d 1070, cert. denied, 464 U.S. 941, 104 S.Ct. 357, 78 L.Ed.2d 320 (1983). Commonwealth v. Funderberg, 374 Mass. 577, 580, 373 N.E.2d 963 (1978). Commonwealth v. Cavanaugh, 371 Mass. 46, 50-51, 353 N.E.2d 732 (1976). Here, however, the defendant essentially argues that, by being denied a continuance, he was forced to go to trial without a polygraph examination or a transcript, and thus was not given a reasonable opportunity to prepare his defense. ⁵ Thus "[t]he discretion of the trial judge cannot be exercised in such a way as to impair the constitutional right to have counsel who has had reasonable opportunity to prepare a defense." Commonwealth v. Cavanaugh, supra at 51, 353 N.E.2d 732. See Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). "There is no 'mechanical test' for deciding when a denial of a continuance is so arbitrary as to violate a defendant's right to effective assistance of counsel and to due process of law." Commonwealth v. Cavanaugh, supra 371 Mass. at 51, 353 N.E.2d 732. Instead we must examine the particular circumstances present in the case, "particularly [those] reasons presented to the trial judge." Id., quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).

The Legislature essentially adopted the same standard of reasonableness in enacting the more detailed provisions of G.L. c. 261, §§ 27A-27G. General Laws c. 261, § 27C (4), provides in part: "If the court makes a finding of indigency ... it shall not deny any request with respect to extra fees and costs if it finds the document, service or object is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially able to pay." The standard of § 27C is "essentially one of reasonableness, and looks to whether a defendant who was able to pay and was paying the expenses himself, would consider the 'document, service or object' sufficiently important that he would choose to obtain it in preparation for his trial." Commonwealth v. Lockley, 381 Mass. 156, 160, 408 N.E.2d 834 (1980). The test is not whether an item "might conceivably contribute some assistance to the defense," nor whether such an item "would be acquired by a defendant who had unlimited resources," but whether the item is "reasonably necessary to prevent [the defendant] from being subjected to a disadvantage in preparing or presenting his case adequately, in comparison with one who could afford to pay for the preparation which the case reasonably requires." Id. at 160-161, 408 N.E.2d 834. The defendant does not have to show, though, that the item is necessarily outcome determinative. Id. at 160, 408 N.E.2d 834.

The denial of the motion for payment of costs of a polygraph examination was not in error under the applicable standard of reasonableness. In considering a particular § 27C request for costs of a polygraph examination a judge is empowered to consider among other factors "(1) the cost of the test; (2) whether the requirements of admissibility of polygraphic evidence set forth in [Commonwealth v. Vitello, 376 Mass. 426, 381 N.E.2d 582 (1978) ] have been satisfied; (3) the limited use to which polygraphic evidence may be put at trial; (4) whether the defendant has a criminal record which might deter him from testifying; and (5) the possibility that the test might work to the defendant's disadvantage in the event that it produces a result unfavorable to him but he nonetheless wishes to testify on his own behalf." Commonwealth v....