Commonwealth v. Mills

• Decision Date: 04 December 2001
• Citation: 436 Mass. 387,764 NE 2d 854
• Parties: COMMONWEALTH v. JAMES O. MILLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

436 Mass. 387

764 NE 2d 854

COMMONWEALTH v. JAMES O. MILLS.

Supreme Judicial Court of Massachusetts, Suffolk.

December 4, 2001.

March 22, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Cathryn A. Neaves, Assistant Attorney General, for the Commonwealth.

Robert L. Sheketoff for the defendant.

SPINA, J.

Following a jury trial, the defendant was found guilty of three counts of larceny from the city of Boston, in violation of G. L. c. 266, § 30¹; two counts of larceny by false pretenses from the Committee for Public Counsel Services (CPCS), in violation of G. L. c. 266, § 30; three counts of perjury, in violation of G. L. c. 268, § 1A; three counts of pension fraud, in violation of G. L. c. 32, § 18; two counts of procurement fraud, in violation of G. L. c. 266, § 67A; two counts of making false claims, in violation of G. L. c. 266, § 67B; and four counts of failure to make tax returns, in violation of G. L. c. 62C, § 73 (c). Based on the five larceny convictions, the judge adjudicated the defendant a "common and notorious thief" pursuant to G. L. c. 266, § 40,² and sentenced him to serve not less than eighteen and not more than twenty years in prison with various lesser concurrent sentences on the remaining charges. The defendant filed a timely notice of appeal. The Appeals Court (1) reversed the judgment as to the indictment alleging three counts of larceny from the retirement board of the city of Boston (board), set aside those verdicts, and entered judgment for the defendant on those counts; (2) reversed the adjudication of the defendant as a common and notorious thief and vacated the sentence under G. L. c. 266, § 40; and (3) remanded the case to the Superior Court for resentencing by a different judge on the remaining indictments. Commonwealth v. Mills, 51 Mass. App. Ct. 366 (2001). We granted the Commonwealth's application for further appellate review. The issues now before us are whether the judge (1) erred in denying the defendant's motion for a required finding of not guilty with respect to the three counts of larceny from the board; (2) erred by adjudicating the defendant a common and notorious thief; and (3) considered improper factors, including the defendant's exercise of his right to remain silent, when sentencing the defendant. We reverse the judgments as to the three counts of larceny from the board (no. 96-11037-002), and remand those matters for a new trial; we vacate the adjudication of the defendant as a common and notorious thief, which was dependent on the three counts of larceny from the board; and we remand the remaining convictions to the Superior Court for resentencing by a different judge.

1. Background. The defendant retired in 1978 from the Boston police department after he was diagnosed with hypertensive heart disease. He applied for and received from the board a nontaxable accidental disability pension of approximately $15,500 per year. The defendant then began to run a private investigation business, Mills Investigations, Inc. (Mills Investigations), out of his home in New Hampshire.

During 1993, 1994, and 1995, the defendant spent every business day at the Middlesex Superior Court, either in the court room assigned to clerk-magistrate Joseph Marshall or in Marshall's office. Beginning in April, 1994, Marshall handled most of the appointments of counsel for indigent defendants and motions for investigation funds. When the designated bar advocate was not in the courtroom, Marshall would deviate from the master list and appoint one attorney from among a group of four who were typically in the courtroom. Those four attorneys moved for investigation funds in every one of their cases and always retained the services of Mills Investigations. Marshall "rubber-stamped" his allowance of these motions off the record and in his back office where the defendant usually spent three hours a day socializing with Marshall.

For fiscal year 1993, the defendant billed CPCS for approximately $107,000 for investigative services. For fiscal year 1994, the defendant billed CPCS for approximately $197,000, representing 5,483 hours of investigative services. On forty-four occasions, the defendant submitted bills with more than twenty-four hours of work attributed to a single day. For fiscal year 1995, the defendant billed CPCS for approximately $359,000, representing 10,057 hours of investigative services. The defendant submitted 211 bills in which he claimed to have worked well over twenty-four hours in a single day (with some days as long as seventy-two hours).

Between 1992 and 1994, the defendant received approximately $45,000 in nontaxable accidental disability benefits from the board. Once approved for a disability pension, the only limitation to keeping the full amount received each year is the amount of income the recipient earns, if any, during that same time period. Following receipt of pension benefits, every disability pensioner is required by statute to file with the board a yearly earnings report, signed under the pains and penalties of perjury. See G. L. c. 32, § 91A. The board calculates an earned income limitation for each disability pensioner, and the pensioner must refund a dollar's worth of pension for each dollar of income over the established limit. To collect money owed as a refund, the board sends bills to pensioners requesting remittance of a check in the appropriate amount. If the pensioner does not respond, the board withholds the amount due from the current pension distribution as security until payment is properly received.

The board estimated that the defendant could earn up to $30,228 in 1992, $30,820 in 1993, and $32,484 in 1994 before being liable for any refunds. For 1992, the defendant withdrew $89,637 from the corporate account of Mills Investigations for his own personal use; he reported to the board that he had earned a total of $25,000. For 1993, the defendant withdrew $65,640 from the corporate account of Mills Investigations for his own personal use; he reported to the board that he had earned a total of $17,500. For 1994, the defendant withdrew $104,494 from the corporate account of Mills Investigations for his own personal use; he reported to the board that he had earned a total of $30,000. As a result of the defendant underreporting his earnings, the board never sought a refund of any pension money.

2. Motion for required finding of not guilty. At the close of the Commonwealth's case, the defendant presented a general motion for required findings of not guilty. The motion was denied. The defense rested without presenting any evidence, the defendant renewed his motion, and it was again denied. The defendant now asserts that the Superior Court judge erred in denying his motion for a required finding of not guilty with respect to the larceny indictment charging him with three counts of stealing the property of the city of Boston when he submitted false earnings reports to the board. He contends that while making such fraudulent statements would violate criminal statutes for perjury, see G. L. c. 268, § 1A, and pension fraud, see G. L. c. 32, § 18, such conduct did not constitute larceny. The defendant argues that he obtained his accidental disability pension payments lawfully. What he did was make it unlikely that the board would demand a refund and hold his future pension payments as security therefor. See G. L. c. 32, § 91 A. The defendant also asserts that because the judge erred in denying his motion for required findings of not guilty, his adjudication as a common and notorious thief should be vacated because only two larceny convictions (from CPCS) would remain. See note 2, supra.

In his general motion for a required finding of not guilty, the defendant stated that the evidence produced by the Commonwealth was insufficient to prove beyond a reasonable doubt that he had committed the offenses as charged in the indictments. Pursuant to Mass. R. Crim. P. 25, as amended, 420 Mass. 1502 (1995), "[t]he judge on motion of a defendant ... shall enter a finding of not guilty of the offense charged in an indictment ... after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a conviction on the charge." See Commonwealth v. Andrews, 427 Mass. 434, 440 (1998). The pertinent indictment herein, for three counts of larceny under G. L. c. 266, § 30,³ charged the defendant with stealing the property of the city of Boston, namely "money or a release of a claim to money, the value of which exceeded $250." "[T]he word `steal' has become `a term of art and includes the criminal taking or conversion' by way either of larceny, embezzlement or obtaining by false pretences." Commonwealth v. King, 202 Mass. 379, 385 (1909), quoting Commonwealth v. Kelley, 184 Mass. 320, 324 (1903). These three formerly separate crimes have been merged into the one crime of larceny as defined in G. L. c. 266, § 30. See Commonwealth v. King, supra at 388. Larceny can be established by evidence that would have warranted a conviction upon any one of the three formerly separate charges. Id. See Commonwealth v. Nadal-Ginard, 42 Mass. App. Ct. 1, 5 n.6 (1997) ("Despite the merger of all types of larcenies in a single statute, G. L. c. 266, § 30, the distinctions among the former separate crimes of larceny, obtaining property by false pretenses and embezzlement may not have been wholly obliterated, but at the very least the evidence adduced must be sufficient to prove the elements of one or the other of the former separate crimes"); Commonwealth v. Kelly, 24 Mass. App. Ct. 181, 183 (1987) (one who commits any of three offenses of stealing, embezzlement, or obtaining property by false pretenses shall be guilty of "larceny"). The purpose of the merger of these three common-law crimes of "stealing" into one statutory crime was to eliminate the possibility that a defendant indicted for one of the crimes would...