Commonwealth v. Liebenow
| Decision Date | 25 November 2014 |
| Docket Number | SJC–11593. |
| Citation | 20 N.E.3d 242,470 Mass. 151 |
| Parties | COMMONWEALTH v. Carl B. LIEBENOW, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Elizabeth Caddick for the defendant.
John Bossé, Assistant District Attorney, for the Commonwealth.
Present: GANTS, C.J., CORDY, BOTSFORD, DUFFLY, & LENK, JJ.
DUFFLY
, J.
The defendant, who was in the business of collecting and selling scrap metal, was charged with larceny under $250, G.L. c. 266, § 30(1)
, in connection with his removal of two lengths of steel pipe from a construction site located on private property in Pittsfield. He was convicted of that charge following a jury-waived trial in the District Court. The conviction was affirmed by the Appeals Court in a divided opinion, see Commonwealth v. Liebenow, 84 Mass.App.Ct. 387, 398, 997 N.E.2d 109 (2013), and we granted the defendant's petition for further appellate review.
The defendant claimed as an affirmative defense at trial that he lacked the requisite specific intent to steal because he honestly,
albeit mistakenly, believed that the property he removed from the site was abandoned. The judge, however, erroneously viewed the affirmative defense as requiring proof that the defendant's belief was objectively reasonable. This misperception appears to have arisen from the conflation of two distinct concepts that have appeared over time in our jurisprudence: the concept of good faith belief, which is subjective, and the concept of reasonable belief, which is objective.1 We take this opportunity to resolve the resulting confusion. As the dissent in the Appeals Court correctly stated:
Commonwealth v. Liebenow, supra at 405, 409, 997 N.E.2d 109
(Milkey, J., dissenting).
Here, the defendant adequately raised the defense of honest belief that the items he took were abandoned, and it was the Commonwealth's burden to prove beyond a reasonable doubt that the defendant's subjective belief was not honestly held but, instead,
was a pretense or sham. Therefore, the conviction must be vacated and the matter remanded for a new trial.
1. Background. We summarize the evidence that the judge, as fact finder, could have found to support the charge of larceny. We then summarize the evidence introduced by the defendant, in the light most favorable to him, that a fact finder could have found to conclude that the defendant honestly believed that the property was abandoned.
a. Commonwealth's evidence. On the morning of July 27, 2010, the defendant was driving around Pittsfield in his sport utility vehicle (SUV), in search of junk metal that he could sell. He drove onto Amy Court, a privately owned cul-de-sac, which was the site of a proposed twenty-six-unit condominium complex then in the process of being constructed. Several signs stating “no trespassing” and “private property” had been posted, construction had been completed on only one unit, and the construction site contained company trucks, construction equipment, and a “job” trailer. Construction company workers had stacked leftover lengths of steel pipe and steel plates, intended for use on other projects, in an area at the bottom of the cul-de-sac where there was no construction. The items had been placed behind a pile of top soil to keep them from view, so that the area would appear attractive to prospective purchasers of the lots, and there were no trash receptacles or discarded materials in sight.
Kenneth Lufkin, an employee of the developer, observed the defendant drive down to the end of the cul-de-sac; because the tailgate of the defendant's SUV had been removed, Lufkin was able to see that the back of the SUV was empty. The defendant drove behind the pile of top soil and out of Lufkin's view, but Lufkin could hear what sounded like steel banging.2 Lufkin stopped the defendant as he was driving from the cul-de-sac toward the public street. When Lufkin asked the defendant what he was doing, the defendant said that he was just picking up some junk steel, and drove away. Lufkin turned around to see what was in the back of the SUV and saw several steel plates and lengths of steel pipe. He wrote down the defendant's license plate number, then contacted his employer and the police.
Officer James Parise of the Pittsfield police department was dispatched to Amy Court, where he spoke with Lufkin and determined that there had been a larceny of some property from that location. The defendant's vehicle subsequently was located at a junkyard that purchased scrap metal. Parise went to the junkyard and spoke with the defendant, who admitted that he had taken the items he had in his vehicle, but said that they had not come from Amy Court. The defendant agreed to accompany Parise to Amy Court; Lufkin and the project developer, Amy Kroboth, met them at the construction site. Lufkin identified the material in the back of the defendant's vehicle as items which had been taken from the Amy Court property, and the defendant returned the items. Kroboth thereafter requested that the defendant be charged with larceny.
At the close of the Commonwealth's evidence, the defendant moved for a directed verdict; his motion was denied.
b. Evidence viewed favorably to defendant. The defendant testified that he believed the construction debris and other items he had collected had been abandoned and did not belong to anyone. The defendant knew that people dumped trash at the end of Amy Court. During the mid-morning hours of July 27, the defendant drove his vehicle to the end of the Amy Court cul-de-sac in search of discarded metal items that had been left or dumped on a dirt trail leading into the woods which began at the end of the paved cul-de-sac. This was one of several places to which he drove that morning in search of junk metal.3 The defendant was unaware of the no trespassing signs, and did not know that Amy Court was then a private road that, according to Kroboth, had not yet “been accepted by the city” as a public street. The defendant made no effort to conceal what he was doing. He had driven to that location previously to collect junk metal; and he conducted his search for scrap metal during daylight hours. The defendant drove from the paved road onto a dirt trail leading into the woods, and saw two lengths of steel pipe, which he picked up and placed in his SUV, along with other items.
The defendant was leaving the area when he encountered Lufkin, who had driven down the road to meet him. The defendant stopped his vehicle, and Lufkin accused him of dumping.4 When the defendant replied that he was “just picking up junk steel,” Lufkin said he did not have a problem with that, and the defendant drove off. Later, when he was met by Parise at the junkyard, the defendant admitted taking the steel pipes, and said he believed they had been abandoned. He also testified, as he had told Parise, that there were steel plates in his vehicle that did not come from Amy Court. At Parise's request, the defendant voluntarily returned to Amy Court. There, he met with Parise, Lufkin, and Kroboth. The defendant returned the two lengths of steel pipe Lufkin identified as belonging to the developer of Amy Court; he was not asked to return the steel plates.5
c. Closing arguments. In closing, defense counsel directed the judge's attention to Commonwealth v. White, 5 Mass.App.Ct. 483, 363 N.E.2d 1365 (1977)
, and argued that the case “stands for the proposition that the defendant is not guilty of larceny if the defendant had a mistaken but honest belief the defendant was entitled to the property.”6 Counsel maintained that, because the defendant “honestly thought he was entitled to have” what he believed was abandoned property, and returned it when it was claimed by the owner, the Commonwealth failed “to prove[ ] beyond a reasonable doubt that [the defendant] intended to permanently deprive [the owner] of the property.”
The prosecutor argued that, even if the defendant's belief were an honest one, that belief also had to be objectively reasonable. He pointed to evidence that the construction materials had been hidden behind a pile of top soil, that signs stating the area was private property had been posted on trees in the vicinity of the dirt pile, and that the defendant had admitted to taking the items from that area as support for the prosecutor's claim that the defendant's belief was not reasonable.
d. Verdict. The judge rejected the defendant's argument. In announcing his verdict, the judge stated that 7
2. Discussion. The offense of larceny is defined in G.L. c. 266, § 30(1)
, as follows:
“Whoever steals, or with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another as defined in this section, whether such property is or is not in his possession at the time of such conversion or secreting, shall be guilty of larceny....”
To convict a defendant of larceny requires that the Commonwealth prove that a defendant took the personal property of another without the right to do so, and “with the specific intent to deprive the other of the property permanently.” Commonwealth v. Murray, 401 Mass. 771, 772, 519 N.E.2d 1293 (1988)
.
a. Honest but mistaken belief. A defendant has...
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TABLE OF CASES
...1980), 475 Lewis, People v., 36 Cal. 531 (1869), 304 Liberta, People v., 474 N.E.2d 567 (N.Y. 1984) , 563 Liebenow, Commonwealth v., 20 N.E.3d 242 (Mass. 2014), 148 Likine, People v., 823 N.W.2d 50 (Mich. 2012), 83, 87 Linehan v. State, 442 So. 2d 244 (Fla. Dist. Ct. App. 1983), 310 Liparot......