Corson v. Com.

• Decision Date: 22 September 1998
• Parties: Judith CORSON v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 814

699 N.E.2d 814

428 Mass. 193

Judith CORSON v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued June 10, 1998.

Decided Sept. 22, 1998.

Peter F. Carr, II, Boston, for plaintiff.

Brian P. Burke, Assistant Attorney General, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, MARSHALL and IRELAND, JJ.

IRELAND, Justice.

The sole issue before us in this appeal is whether the trial judge erred in refusing to dismiss three indictments against Judith Corson (defendant), following a mistrial that resulted from a deadlocked jury. The defendant argues that dismissal is warranted because the evidence presented by the Commonwealth at her trial was insufficient as a matter of law to allow the indictments to go to the jury. Although this is a close case, we agree with the defendant and remand for the entry of an order dismissing the indictments.

This case stems from the theft of the defendant's 1985 Mercedes Benz 380SL roadster on February 14, 1993. A jury would be warranted in finding the following facts. The defendant had been an insurance agent for more than twenty years and was the sole principal of her own insurance agency. In addition to the 1985 Mercedes Benz, which the defendant owned outright, she recently had leased a 1993 Mercedes Benz. The defendant and her boyfriend, Allan Leavitt, drove the 1985 Mercedes Benz to a restaurant in Boston on the evening in question. The defendant parked the car on a street some distance from the restaurant. At approximately 8:00 P.M., the defendant gave Leavitt her keys to retrieve the car, while she waited inside the restaurant. He returned some time later and reported the car missing. The defendant and Leavitt immediately went to a nearby police station to report the car stolen.

The defendant promptly filed a theft claim with her insurance company. In her statement to the insurance company (which was recorded with her knowledge and consent), the defendant indicated that she had received only one set of keys upon purchasing the car and had never made any duplicates. On March 25, 1993, the insurance company paid $24,805 to the defendant to cover her claim. ¹ In her statement to the police on the night the car was stolen, the defendant had estimated the value of the car to be $24,000.

On August 2, 1993, Leavitt was stopped by United States customs agents in Champlain, New York, while driving the defendant's car into the United States from Canada. Leavitt told the customs agents that the car belonged to the defendant and that he had her permission to drive the car. He initially gave the customs agents a telephone number for the defendant that he knew was incorrect. After verifying that the car was still reported as stolen, the customs agents placed Leavitt in the custody of the New York State police. Two days later, Leavitt pled guilty in New York to the crime of unauthorized use of a motor vehicle and paid a $500 fine with funds provided by the defendant. As a condition of his plea, Leavitt signed a statement implicating the defendant in the theft of the car. Leavitt subsequently pled guilty in Massachusetts to the crimes of concealing a motor vehicle with intent to defraud an insurer and larceny by false pretenses over $250. In his plea colloquy, he once again implicated the defendant in the theft of the car. ²

On August 12, 1993, the defendant gave a statement to a special investigator for the insurance company. The statement was not recorded. Instead, the investigator wrote the statement out himself, and then the defendant signed it. In the statement, the defendant indicated that she had two sets of keys to the car and had given one to Leavitt. However, the defendant also stated that only one key was required to operate the car.

A Suffolk County grand jury returned four indictments against the defendant on July 6, 1995, charging her with concealing a motor vehicle with intent to defraud an insurer (in violation of G.L. c. 266, § 27A), providing a false written statement to the police (in violation of G.L. c. 268, § 39), insurance fraud (in violation of G.L. c. 266, § 111B), and larceny by false pretenses exceeding $250 (in violation of G.L. c. 266, § 30).

At the defendant's trial, a New York State trooper testified that he called the defendant shortly after taking Leavitt into custody. The trooper testified that the defendant denied having reported the car as stolen and said that Leavitt had her permission to drive the car. The trooper also testified that the defendant did not appear to be upset or surprised when he told her about recovering the car and taking Leavitt into custody. On cross-examination, however, the trooper conceded that neither his contemporaneous notes of his conversation with the defendant, nor the affidavit he signed in October, 1993, mentioned that she had denied reporting her car stolen or had said that Leavitt had her permission to drive the car. On the contrary, the notes and affidavit each indicated that the defendant stated the exact opposite. The trooper also conceded that he had been unaware that a customs inspector had called the defendant earlier that evening.

Leavitt testified that he lied to the customs agents to avoid incriminating himself. He testified that his signed statement had been coerced and that he signed it because he otherwise would not have been able to leave police custody. ³ He also testified that after leaving the restaurant ostensibly to retrieve the car on the evening of February 14, 1993, he drove it to a parking lot near the airport, boarded a waiting shuttle van that took him to an airport terminal, and returned to the restaurant by taxi, all within "approximately" twenty minutes. He then told the defendant that the car was missing. Several days later, he returned to the parking lot and drove the car to Canada, where it remained until the night he was arrested while trying to return it to the United States. He testified that he was in desperate financial condition at that time and that he had intended to sell the car. He also testified that the defendant had nothing to do with the theft of the car and that he alone had conceived and executed the plan.

At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty on all four indictments. Mass. R.Crim. P. 25(a), 378 Mass. 896 (1979). The judge denied the motion, but stated that this was "as close a case" as he had seen for allowing the motion. The defendant then rested without presenting any evidence and renewed her motion for a required finding of not guilty. The judge denied the motion, but again commented as to how close the case was. After three days of deliberation, the jury returned a verdict of not guilty on the indictment charging the appellant with providing a false statement to the police. The jury deadlocked on the other three indictments, causing the judge to declare a mistrial.

The defendant immediately renewed her motion for a required finding of not guilty. The judge treated this as a motion to dismiss the indictments on double jeopardy grounds and, after a hearing, denied it. The defendant petitioned a single justice of this court, pursuant to G.L. c. 211, § 3, requesting the dismissal of the remaining indictments on double jeopardy grounds. The single justice denied the petition. The defendant appealed to the full court, pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995). ⁴ We authorized an appeal "according to the regular appellate process."

In cases such as this, where the judge declares a mistrial because of a hung jury and the defendant has moved for a required finding of not guilty, the Commonwealth must have presented evidence legally sufficient to support a conviction at the first trial, or jeopardy terminates for State law purposes, and "the retrial of the defendant ... would violate this State's common law principles of double jeopardy." Kater v. Commonwealth, 421 Mass. 17, 19, 653 N.E.2d 576 (1995), citing Berry v. Commonwealth, 393 Mass. 793, 798, 473 N.E.2d 1115 (1985). The defendant is "entitled to a review of the legal sufficiency of the evidence before another trial takes place." Berry, supra. We must review the evidence, together with permissible inferences therefrom, in the light most favorable to the Commonwealth, and then decide whether "a rational trier of fact could have found each essential element of the crimes charged beyond a reasonable doubt." Kater, supra at 20, 653 N.E.2d 576, citing Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). See Commonwealth v. Mandile, 403 Mass. 93, 94, 525 N.E.2d 1322 (1988), quoting Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979).

The evidence may be entirely or mainly circumstantial. See Commonwealth v. Donovan, 395 Mass. 20, 25, 478 N.E.2d 727 (1985), and cases cited; Commonwealth v. Chery, 36 Mass.App.Ct. 913, 913-914, 628 N.E.2d 27 (1994). In such cases, inferences need not be necessary, only reasonable and possible. Commonwealth v. Bennett, 424 Mass. 64, 68, 674 N.E.2d 237 (1997), and cases cited. However, the evidence will not be sufficient to withstand the defendant's motion here unless it allows us to do more than "find that there was some record evidence, however slight, to support each essential element of the offense." Mandile, supra, quoting Latimore, supra at 677, 393 N.E.2d 370. Nor will the evidence be sufficient if it merely piles "inference upon inference or conjecture and speculation," Mandile, supra, quoting Commonwealth v. Ferguson, 384 Mass. 13, 18, 422 N.E.2d 1365 (1981), or if it tends "equally to support either of two inconsistent propositions." Commonwealth v. Rhoades, 379 Mass. 810, 817, 401 N.E.2d 342 (1980). See Ferguson, supra at 19, 422 N.E.2d 1365; Commonwealth v. Wilborne, 382 Mass. 241, 244, 415 N.E.2d 192 (1981).

The defendant argues that the Commonwealth failed to present sufficient evidence at her trial to establish that she...