Commonwealth v. McGhee

470 Mass. 638

25 N.E.3d 251

COMMONWEALTH

v.Craig McGHEE.

SJC–11716.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Dec. 1, 2014.

Decided Feb. 13, 2015.

Elizabeth Dembitzer, Framingham, for the defendant.

Brett F. Dillon, Assistant District Attorney (Donna–Marie Haran, Assistant District Attorney, with him) for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

LENK, J.

The defendant appeals from his convictions on two counts of “confin[ing] ... or put[ting] any person in fear, for the purpose of stealing from a building, bank, safe, vault or other depository of money.” G.L. c. 265, § 21. Evidence was presented at trial that the defendant and another man intimidated victims into withdrawing funds from an automated teller machine (ATM) and handing those funds over to the defendant and the unidentified coventurer. The defendant argues that these facts do not support a finding that he had the purpose required by G.L. c. 265, § 21. We reject this argument. We agree, however, with the

defendant's alternative assertion that the trial judge erred by failing to inquire into credible information that one of the jurors had slept through important portions of the evidence. Because this was a structural error, we vacate the defendant's convictions and remand for a new trial.

1. Background. The facts supported by the evidence at trial included the following. In May, 2010, the defendant and his coventurer accosted the victims, James Fletcher, Thomas Brown, and John Wentworth,

as they were walking toward their vehicle in a Worcester parking lot. The defendant and his coventurer accused the victims, in a hostile and menacing manner, of being “up to trouble” and selling drugs. They then ordered the victims to get into the vehicle. The victims were frightened, and they cooperated with the defendant and his accomplice in the hope that they would not be hurt.

Fletcher drove. The defendant, who was aggressive and intermittently yelling, directed Fletcher to an ATM. The defendant told Fletcher to get out of the vehicle, led Fletcher to the ATM, and ordered Fletcher to withdraw $150 from it. Fletcher was scared; he withdrew $140 and gave it to the defendant, stating that was all the money he had. The defendant said, “[T]hat's good enough.” The defendant and Fletcher returned to the vehicle. While they had been gone, the coventurer had told Brown and Wentworth that the defendant would shoot them if they did not cooperate.

The coventurer then instructed Brown to get out of the vehicle. He grabbed Brown's arm and forced Brown toward the ATM. Brown withdrew twenty dollars and gave it to the coventurer, who told Brown to “get back in there” and to give him one hundred dollars. Brown testified that he complied, overdrawing his account in so doing. Brown and the coventurer returned to the vehicle. The defendant again directed Fletcher where to drive, and at some point the defendant and the coventurer got out of the vehicle.

Fletcher telephoned the Worcester police department that night and reported the incident in person the next day. The three victims subsequently identified the defendant from a photographic array.

The defendant was tried on three counts of aggravated kidnapping, G.L. c. 265, § 26 ; two counts of armed robbery, G.L. c. 265, § 17 ; and two counts of “confining to commit a felony,”

G.L. c. 265, § 21.¹ At the close of the Commonwealth's case, the defendant moved for required findings of not guilty as to all the charges. The motion was denied. The jury acquitted the defendant on all counts of aggravated kidnapping and armed robbery, and convicted him on the two counts of confining to commit a felony. The defendant appealed, and we granted his application for direct appellate review.

2. G.L. c. 265, § 21. At the prosecution's request, the jury instructions concerning G.L. c. 265, § 21, were based on the first part of that statute,² which subjects to imprisonment

“[w]hoever, with intent to commit larceny or any felony, confines, maims, injures or wounds, or attempts or threatens to kill, confine, maim, injure or wound, or puts any person in fear, for the purpose of stealing from a building, bank, safe, vault or other depository of money, bonds or other valuables....”

The defendant argues that the evidence was insufficient to support a finding that the final requirement of this statute, namely, a “purpose of stealing from a building, bank, safe, vault or other depository of money, bonds or other valuables,” was satisfied. His argument is, in essence, that the phrase “stealing from” a “bank, safe, vault, or other depository” denotes, in this case, stealing property owned by the ATM. The evidence, according to the defendant, supported only a finding that the defendant had a purpose of stealing property owned by the victims, not the ATM.

“We review a question of statutory interpretation de novo....” Commonwealth v. Perella, 464 Mass. 274, 276, 982 N.E.2d 526 (2013), quoting Commonwealth v. George W. Prescott Publ. Co., 463 Mass. 258, 264 n. 9, 973 N.E.2d 667 (2012). “[C]riminal statutes must be construed strictly against the Commonwealth,” but “[t]his does not mean that we read unambiguous statutory language to favor defendants; it means simply that ... ambiguity must be resolved in favor of a

defendant” (citations omitted). Commonwealth v. Ruiz, 426 Mass. 391, 394, 688 N.E.2d 963 (1998).

“[S]tatutes must be read as [a] whole to produce internal consistency.” Commonwealth v. Perella, 464 Mass. at 279–280, 982 N.E.2d 526, citing Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 601, 925 N.E.2d 9 (2010), S. C., 465 Mass. 297, 988 N.E.2d 845 (2013). See Commonwealth v. Williamson, 462 Mass. 676, 681, 971 N.E.2d 250 (2012) ; Commonwealth v. Galvin, 388 Mass. 326, 328, 446 N.E.2d 391 (1983). Read as a whole, the “purpose of stealing” required by G.L. c. 265, § 21, cannot reasonably be understood to be limited to stealing property owned by a bank or an ATM.

The purpose required by G.L. c. 265, § 21, encompasses not only theft from a bank or an ATM, but also theft from a “building,” a “safe,” or a “vault.” A “building,” in this context, includes a dwelling. See Commonwealth v. Devlin, 335 Mass. 555, 566–567, 141 N.E.2d 269 (1957) ; Commonwealth v. Skalberg, 333 Mass. 255, 255–256, 130 N.E.2d 684 (1955) ; Commonwealth v. Jackson, 37 Mass.App.Ct. 940, 941, 641 N.E.2d 711 (1994), quoting Black's Law Dictionary 194–195 (6th ed. 1990) (defining “building” as “a structure or edifice inclosing a space within its walls and usually ... covered with a roof” [omission in original] ). A person stealing “from” a building or a safe necessarily would not be stealing the property of a building or a safe. It is thus unambiguous that the phrase “stealing from” in G.L. c. 265, § 21, does not mean “stealing the property of.” Rather, a purpose of stealing property “from” a location, in this context, indicates that the property was situated in that location when it was to be stolen. General Laws c. 265, § 21, thus admits of no ambiguity that need be resolved in the defendant's favor.

The defendant argues further, however, that his purpose, according to the evidence, also was not to steal property situated at the ATM. According to the defendant, the evidence showed that he had no intention of taking any money until after it had been extracted from the ATM; by that time, the defendant argues, the money was to be located on the victims' persons, not at any of the locations enumerated in G.L. c. 265, § 21.

Several of the circuit courts of the United States Court of Appeals have reached conflicting conclusions when presented with analogous arguments under 18 U.S.C. § 2113(a) (2012), the Federal offense of bank robbery.³ Compare United States v. McCarter,

406 F.3d 460, 463 (7th Cir.2005), overruled on other

grounds, United States v. Parker, 508 F.3d 434 (7th Cir.2007), with United States v. Burton, 425 F.3d 1008, 1010–1012 (5th Cir.2005). We share the view, articulated by the United States Court of Appeals for the Seventh Circuit, that “[i]f the depositor is robbed of the money he has just withdrawn after he leaves the bank, that is not a [robbery from the bank]. But if ... the robber forces the bank's customer to withdraw the money, the customer becomes the unwilling agent of the robber....” United States v. McCarter, supra, citing United States v. Van, 814 F.2d 1004, 1006–1008 (5th Cir.1987), and Embrey v. Hershberger, 131 F.3d 739 (8th Cir.1997) (en banc), cert. denied, 525 U.S. 828, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998). See United States v. Durham, 645 F.3d 883, 893 (7th Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1537, 132 S.Ct. 1538, 182 L.Ed.2d 175 (2012); United States v. Smith, 670 F.Supp.2d 1316, 1321 (M.D.Fla.2009), aff'd, 385 Fed.Appx. 977 (11th Cir.2010).

In essence, the evidence indicated that the defendant's purpose was to steal money that was located in the ATM. The fact that he planned to do so by forcing Fletcher to take the money out for him does not negate the existence of the purpose required by G.L. c. 265, § 21, just as this purpose would not have been undermined if the defendant had planned to have a confederate remove the money from the ATM.

3. Sleeping juror. On the first day of trial, testimony was taken from two of the three victims, Fletcher and Brown. The next morning, juror no. 6 (reporting juror) told a court officer that there had been an issue with juror no. 7 (identified juror) on the previous day. The reporting juror was brought before the judge and the parties, and she provided the following account:

“My concern was [that] through most of the morning proceedings I heard a lot of snoring going on; and I looked at the person, and the person wasn't paying any attention to the testimony going on. After lunch when we came in, the snoring continued extremely loudly, to the point where it was interrupting me listening. I kind of went like this [indicating] to the

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