Commonwealth v. Forget
| Decision Date | 24 March 2015 |
| Docket Number | 12-P-258 |
| Parties | COMMONWEALTH v. RONALD S. FORGET |
| Court | Appeals Court of Massachusetts |
After a jury trial, the defendant, Ronald S. Forget, was convicted of larceny under $250 and improper use of a credit card (two counts). On appeal, he argues that his trial was unfair because the jury heard what he describes as "highly prejudicial testimony" about the circumstances of the death of the credit card holder; he also contends that the convictions should be vacated on double jeopardy grounds. We affirm.
Background. On July 21, 2007, Michael Doble was killed in a five-car accident on Interstate 95 in Attleboro. The defendant's employer, Sterry Street Towing, dispatched him to the accident scene to tow vehicles from the crash site. A few days after the accident, Doble's mother received a telephone call from her son's credit card company, telling her that "veryunusual" charges had been posted on Doble's credit card after he died.1
On July 26, 2007, Pawtucket Police Officers Kelly Boily and David Malkasian went to the defendant's home in Rhode Island, and spoke with him. The defendant said that he had "used a credit card [he] found on the highway" while towing cars from the crash scene in Attleboro; he believed the credit card belonged to The defendant stated that he no longer had the credit card, but that he had written "the number down on a business card, used the number, then ripped up the business card and threw it away." The officers placed the defendant under arrest.
On July 27, 2007, while in custody, the defendant was interviewed by Detective Robert Matook of the Pawtucket Police Department. During their conversation, the defendant told Matook that he had found Doble's credit cards on the roadway at the scene of the crash. He stated that he had used one of the credit cards on July 23, 2007, to make an on-line payment of his cell phone bill; he also used the card for two separate chargesat a gas station in Attleboro, Massachusetts, for gas and a car wash. Later on July 27, 2007, while the defendant was still in custody, Officer Malkasian returned to the defendant's home and seized Doble's credit card.
On December 21, 2007, the defendant was charged with breaking and entering in the nighttime,2 larceny under $250, and two counts of improper use of a credit card under $250. His motion to dismiss on double jeopardy grounds for the improper use of credit card charges (counts 3 and 4) was denied after the motion judge ruled that "the only legitimate charges that are pending are those in Massachusetts."3
At trial, Doble's parents both testified; Mrs. Doble testified about the credit card charges, and Mr. Doble testified that his son's wallet was missing from his son's pickup truck at Sterry Street Towing.4 At the close of the Commonwealth's case,the judge allowed the defendant's motion for a directed verdict on the breaking and entering charge; the jury found the defendant guilty on the remaining charges.
Discussion. Jury sympathy. The defendant first argues that, because the trial judge permitted emotional testimony by Mr. and Mrs. Doble, and the prosecutor reiterated the testimony during his closing argument, the jury's conviction was based on the tragedy of Doble's death rather than facts relating to the defendant's improper use of Doble's credit card. We are not persuaded.
Mrs. Doble provided the jury with details about the improper use of her son's credit card and the fact that he could not have consented to the credit card use because he was dead.5 The judge apparently monitored her testimony closely, interrupting her several times in order to limit her answer to the question asked, then immediately prompting the prosecutor to move to the next question. At one point the judge specifically instructed Mrs. Doble to answer only the question posed. Thedefendant did not object to any of Mrs. Doble's testimony, nor did he cross-examine her.
Mr. Doble's testimony occupied two pages of transcript. He testified that, when he went to claim his son's belongings from Sterry Street towing, the wallet was missing. Some of his testimony was emotional.6 However, defense counsel did not object and, when given an opportunity to cross examine, said only,
"On this record, the defendant has not shown that the judge's decision to admit this evidence was an abuse of discretion." Commonwealth v. Carey, 79 Mass. App. Ct. 587, 594 (2011). The Dobles' testimony was relevant to establish the circumstances surrounding the theft of the credit card and the fact that the owner had not consented to Doble's use of it. The judge properly determined that the probative value of that evidence outweighed any prejudice to the defendant, and took steps to minimize any unfairness. Id. at 594-595. We see no error and certainly no substantial risk of a miscarriage of justice.
Similarly, statements that the prosecutor made during his closing argument referring to Doble's death were not, as the defendant argues, irrelevant. In fact, Doble's death was an important fact, used to prove that the defendant took the credit cards and used them without Doble's consent. The prosecutor did not refer at all to Doble's parents or to their grief at losing their son. "The comments were not improper but, rather, a simple marshalling of the evidence." Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 869 (2007). In addition, there was no defense objection and the trial judge instructed the jury that the opening and closing arguments presented by each lawyer were not evidence. We presume that the jury heeded that instruction. See Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 314 (2009), quoting from Commonwealth v. Pillai, 445 Mass. 175, 190 (2005).
Double jeopardy. The defendant also argues that his...
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