Commonwealth v. Wash. Pearson, 08-P-1976.

• Decision Date: 24 June 2010
• Docket Number: No. 08-P-1976.,08-P-1976.
• Citation: 77 Mass.App.Ct. 95,928 N.E.2d 961
• Parties: COMMONWEALTHv.Washington PEARSON.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 95

928 N.E.2d 961

COMMONWEALTHv.Washington PEARSON.

No. 08-P-1976.

Appeals Court of Massachusetts,

Essex.

Argued Nov. 10, 2009.

Decided June 24, 2010.

COPYRIGHT MATERIAL OMITTED

Kathleen M. McCarthy, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: McHUGH, TRAINOR, & HANLON, JJ.

HANLON, J.

The defendant appeals from his conviction after a jury trial of three charges of fraudulent use of a credit card, G.L. c. 266, § 37C, and three charges of larceny of property having a value of less than $250, G.L. c. 266, § 30.¹ He argues, as to the fraudulent use of a credit card charges, that the indictments were defective; that there was insufficient evidence to sustain his conviction for those offenses; and that the jury were not properly instructed on them. He also argues that certain bad act evidence was wrongly admitted; that he was prejudiced when the judge showed bias in his treatment of a Commonwealth witness; and that, as to one of the transactions using a stolen credit card, he was indicted for offenses different from those proved at trial. We agree with the last argument and reverse the convictions for the two indictments related to that transaction. In addition, the two remaining convictions of fraudulent use of a credit card are duplicative; each of the indictments charged the defendant as receiving the same stolen credit card. Therefore, one must be vacated.

Background. The evidence would have warranted the jury in finding that the defendant and another man used credit cards stolen earlier in the evening from apartments in Boston to make purchases at a Target Store and a Stop & Shop supermarket in Danvers.² The men were later identified on security tapes from those stores.³

The procedural history is complicated. General Laws c. 266, § 37C, felony fraudulent use of a credit card, has ten sub-sections and the indictments did not specify which subsection was charged.⁴ The bill of particulars filed by the Commonwealth fairly informed the defendant of the conduct that was the basis for each of his charges, but still did not specify under which subsection of § 37C he was charged. Only in the Commonwealth's opposition to the defendant's motion to dismiss did it clarify its allegation that the defendant violated G.L. c. 266, § 37C( b ).⁵ The motion judge denied the motion to dismiss the indictments for failure to state a crime.

As the Commonwealth acknowledges, by the close of the Commonwealth's case at trial, both the Commonwealth and the judge were proceeding as if the defendant had been indicted on the felony charges for a violation of G.L. c. 266, § 37C( d ),⁶ rather than § 37C( b ).⁷ At that point, after the judge announced that he believed that the misdemeanor and felony offenses would merge for sentencing purposes, the Commonwealth filed a nolle prosequi on the three misdemeanor charges for misuse of a credit card. ⁸ The judge then instructed the jury in language that did not track either statute precisely, although it incorporated all of the elements from § 37C( b ), as well as several additional elements.⁹

Indictments for felony fraudulent use of a credit card. The defendant argues that the indictment language for the fraudulent use charge did not follow the statute in that the statutory language, “[w]ith intent to defraud,” is missing from the indictment, and the indictment language, “with the intent to use it,” is not contained in the felony statute charged, but, rather, in the misdemeanor statute. G.L. c. 266, § 37B( b ).

“[A]n indictment must contain a ‘plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.’ Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). A complaint or indictment will not be dismissed ... ‘if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him.’ ” Commonwealth v. Fernandes, 430 Mass. 517, 519-520, 722 N.E.2d 406 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281, 120 S.Ct. 2755, 147 L.Ed.2d 1017 (2000), quoting from Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987). See Commonwealth v. Williams, 73 Mass.App.Ct. 833, 837, 903 N.E.2d 222 (2009) (“A charge must appear with ‘sufficient clarity ... to enable the accused to know the nature and cause of the accusation against him, to prepare an adequate defense, and to plead an acquittal or conviction in bar of future prosecution for the same offense.’ Commonwealth v. Donoghue, 23 Mass.App.Ct. 103, 110 (1986), cert. denied, 481 U.S. 1022 [, 107 S.Ct. 1908, 95 L.Ed.2d 513 (1987) ]”). Moreover, the law is clear that “[i]t is not necessary for the Commonwealth to set forth in the complaint or indictment every element of the crime to withstand a motion to dismiss.” Commonwealth v. Green, supra at 566, 505 N.E.2d 886.

Here, the language of the indictment was clear and unambiguous: “Washington Pearson ... did receive a credit card with the intent to use it, knowing said credit card had been taken by any act that would constitute larceny from the person, possession, custody or control of another without the cardholder's consent, in violation of G.L. c. 266, § 37C.” A fair reading of that language clearly imports an allegation that the defendant had an intent to defraud when he knowingly received a stolen credit card intending to use it. See id. at 567, 505 N.E.2d 886. In addition, the defendant was provided with a bill of particulars that, when read with the indictment, gave him specific notice of the dates, places, times, and transactions underlying the charges. See Commonwealth v. Pillai, 445 Mass. 175, 188, 833 N.E.2d 1160 (2005); Commonwealth v. Leavitt, 17 Mass.App.Ct. 585, 588, 460 N.E.2d 1060, cert. denied, 469 U.S. 835, 105 S.Ct. 130, 83 L.Ed.2d 71 (1984). We see no defect in the indictments.

Variance between indictment and proof at trial. In grand jury testimony, the defendant, Washington Pearson, was identified, from security photographs, as the person who conducted three specific transactions on April 27, 2004. His codefendant, Jose Colon, was accused in the same grand jury testimony as the person who conducted two additional and different transactions, including the use of Doris Gordon's American Express credit card to make a $227.75 purchase at Target at 9:58 p.m.¹⁰ The Commonwealth's bill of particulars provided the same information, including specifically that, in one of the transactions Washington Pearson used the Bank One Visa card of Elizabeth Spahn to make a $120.99 purchase at Target at 10:00 p.m. ¹¹

At trial, immediately after the jury was empanelled and the judge described the charges to the jury, the prosecutor announced that the transactions had been “confused” and that, in fact, the photographs showed that Colon made the Visa purchase at 10:00 p.m. and the defendant made the American Express purchase at 9:58 p.m. Initially, the prosecutor thought the mistake was only in the bill of particulars but, by the end of trial, she acknowledged that the error was made in the testimony of both of the Commonwealth's grand jury witnesses.

The judge denied the defendant's motion for a required finding of not guilty and his motion to dismiss the charges relating to the Target purchases, saying that it was permissible for the Commonwealth to amend its bill of particulars to conform to the trial evidence. He agreed with the Commonwealth that, because the defendant had been provided with discovery containing the photographs of the men who made the purchases, he had notice of which transaction he actually had made, and, apparently, which one the Commonwealth intended to charge him with.¹² The defendant, he ruled, was not prejudiced because his defense was mistaken identification.

“Article 12 [of the Declaration of Rights of the Massachusetts Constitution] requires that no one may be convicted of a crime punishable by a term in the State prison without first being indicted for that crime by a grand jury.” Commonwealth v. Barbosa, 421 Mass. 547, 549, 658 N.E.2d 966 (1995). In Barbosa, the grand jury heard evidence that the defendant had twice distributed cocaine, but they returned only one count charging the defendant with distribution of cocaine. Id. at 548, 658 N.E.2d 966. “There was no indication that count one of the indictment was intended to include more than one act of distribution.” Ibid. The court reversed the subsequent conviction, based upon “the very real possibility that the defendant was convicted of a crime for which he was not indicted by a grand jury.” Id. at 551, 658 N.E.2d 966.

“It is a rule of the common law, as well as a provision of the Constitution of this Commonwealth, that no one shall be held to answer, unless the crime with which it is intended to charge him is set forth in the indictment with precision and fullness; and this rule is not to be defeated by allowing the defendant to be convicted upon evidence of another offence of the same kind, committed on the same day, but not identical with it.”

Ibid., quoting Commonwealth v. Dean, 109 Mass. 349, 352 (1872). See Commonwealth v. Muniz, 456 Mass. 166, 174, 921 N.E.2d 981 (2010); Commonwealth v. Porro, 74 Mass.App.Ct. 676, 682, 909 N.E.2d 1184, further appellate review granted, 455 Mass. 1106, 920 N.E.2d 43 (2009).

The defendant argues that, as in Barbosa, there is a real possibility that he was convicted of a crime for which he was not indicted. On the contrary, there is more than a possibility; it is quite clear that he was in fact convicted of a crime for which he was not indicted. This is not a situation where the Commonwealth made a mistake about a detail such as the date. See Commonwealth v. Knight, 437 Mass. 487, 492-494, 773 N.E.2d 390 (2002); Commonwealth v. Pillai, 445 Mass. at 188-189, 833 N.E.2d 1160; Commonwealth v. LeBlanc, 73 Mass.App.Ct. 624, 632, 900 N.E.2d 127 (2009) S.C., 456 Mass....