Commw. V. Willard

COMMONWEALTH vs JOHN WILLARD

Docket No.: 98-P-2141

Massachusetts Court of Appeals

February 10, 2000.

January 28, 2002

County: Norfolk.

The case was tried before Barbara A. Dortch-Okara, J.

John T. Lyons, Jr., for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

Present: Jacobs, Rapoza, & Gelinas, JJ.

Breaking and Entering. Larceny. Practice, Criminal, Instructions to jury, Lesser included offense, Assistance of counsel. Evidence, Identification. Due Process of Law, Elements of criminal offense, Identification, Assistance of counsel. Constitutional Law, Identification, Assistance of counsel.

Indictment found and returned in the Superior Court Department on May 14, 1997.

RAPOZA, J.

Following a jury trial in the Superior Court, the defendant was convicted of attempting to break and enter a dwelling house in the nighttime with the intent to commit a felony therein, in violation of G. L. c. 266, 15. On appeal, he asserts that the trial judge erroneously (1) instructed the jury that the intended felony was larceny in a building, and then failed to define the specific elements of that felony; (2) failed to instruct the jury regarding lesser included offenses; and (3) failed to give an instruction, sua sponte, regarding good faith mistaken identification. The defendant also argues that his trial attorney's failure to request such an instruction constituted ineffective assistance of counsel. We affirm.

1. Background. On February 1, 1997, Brett DeMichael and his wife, who lived in an apartment in the Salvation Army building in Quincy,¹ were awakened in the early morning hours by a crashing noise in their living room. As DeMichael was using a bedside phone to call the Quincy police, the building security alarm began to sound. At the same time, Rick Damigella, a Quincy city employee who was driving a road sanding truck near the Salvation Army building, also heard the alarm. He observed a male, whom he described as a "tall guy with a hooded sweatshirt," running away from the building.

At 2:47 A.M., police Officer John Horrigan was dispatched to the scene where he spoke with DeMichael. Horrigan observed that a sliding glass window in the DeMichaels' apartment had been removed from its track and the window screen had been bent and thrown to the floor of the living room. Outside, in the newly fallen snow, Horrigan noted a set of footprints that circled the building, apparently stopping at each door and window. Footprints also led from the building to a Yellow Cab office located nearby. There, Horrigan spoke with a taxi driver, John Wholey, who related that at approximately 2:55 A.M., a dark-haired white male wearing a heavy sweatshirt had approached his cab and requested a ride to 25 Shaw Street in Quincy, a three- to five-minute drive. On direct examination, Wholey identified the defendant as the man he had driven to Shaw Street that night.²

Horrigan proceeded to 25 Shaw Street, which appeared to be a rooming house, and observed footprints in the snow similar to those outside the Salvation Army building. He tracked the footprints from the curb to the sidewalk and then up the walk to the front door. Horrigan entered the building, followed a trail of wet spots on the carpet to a door on the first floor, and knocked on it. The defendant, who was wearing wet boots, opened the door. The defendant told Horrigan that he had been home for over an hour and invited him into the apartment. The defendant showed him a light nylon baseball jacket that he claimed to have been wearing that evening. Horrigan, however, noticed a dark-colored hooded jacket hanging in the apartment. When he touched it, he found it to be "soaking wet" and also noticed that the zipper was cold. Shortly thereafter, Horrigan arrested the defendant.

Following the defendant's arrest, the police contacted Damigella and requested that he come to 25 Shaw Street. There he observed both the defendant and the hooded jacket. Damigella testified that he had not seen the face of the man fleeing the vicinity of the Salvation Army building and that, when he observed the accused at the apartment, he (Damigella) could not be certain it was the same person he had seen running. Nonetheless, he noted that the defendant's physical build was consistent with that of the person he had seen running away. He also testified that the hooded sweatshirt he observed at the defendant's apartment "looked familiar . . . [f]rom when I had seen the person running."

2. Jury instructions. The defendant first claims that the trial judge erroneously instructed the jury that the intended felony referred to in the indictment was larceny in a building.³ He also asserts that even if the intended felony were larceny in a building, the trial judge failed to define the specific elements of that felony for the jury. The defendant further complains that the judge erred by not instructing the jury regarding lesser included offenses and the possibility of a good faith mistake in identification.

a. Larceny in a building as the intended felony. To prove a defendant guilty of burglary under G. L. c. 266, 15, the Commonwealth must establish not only that the defendant did break and enter a dwelling house in the nighttime, but that he did so with the intent to commit a felony. See Commonwealth v. Ronchetti, 333 Mass. 78, 81-82 (1955); Commonwealth v. Randall, 50 Mass. App. Ct. 26, 29 (2000). A burglary indictment need not specify the intended felony by name, as the identity of the felony is not an element of the crime and the jury can find an intent to commit an unspecified felony. See Commonwealth v. Porcher, 26 Mass. App. Ct. 517, 521 (1988). See also Rogan v. Commonwealth, 415 Mass. 376, 379 (1993) (same as to misdemeanor). Where a particular felony is specified either in the indictment or the judge's instruction, "the allegation of the specific felony . . . [is] mere surplusage and unnecessary to describe the crime." Commonwealth v. Randolph, 415 Mass. 364, 367 (1993).

In the present case, the defendant objected to the judge's instruction to the jury that larceny in a building was the intended felony.⁴ When the trial judge asked whether the defendant wanted her to "use something else" as the intended felony, counsel apparently declined the judge's invitation to suggest an alternative and merely reiterated his request that the motion for a required finding of not guilty be allowed. On appeal, the defendant essentially claims that the Commonwealth's evidence was insufficient to prove beyond a reasonable doubt that the perpetrator's intent was to commit the felony of larceny in a building under G. L. c. 266, 20, and implies that any larcenous intent involved no more than a misdemeanor larceny pursuant to G. L. c. 266, 30.⁵

To establish the offense of larceny in a building "it is not enough [for the Commonwealth] to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief. It is necessary to show also that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building." Commonwealth v. Sollivan, 40 Mass. App. Ct. 284, 286 (1996), quoting from Commonwealth v. Lester, 129 Mass. 101, 103 (1880). The defendant claims that any property within the DeMichaels' apartment was under their control or supervision and not under the protection of the building. Thus, he argues, the intended offense could not have been a felonious larceny in a building under G. L. c. 266, 20.

Larceny from a person and larceny in a building are distinguished from each other in large part based upon the circumstances in which the stolen property was safeguarded prior to its theft. We have recently noted the distinction between the two forms of larceny:

"On many occasions, the property in question will have been placed in the control, or under the supervision, of one or more individuals. It will, at least for a certain period of time, be in the possession of those persons. At other times, personal property will not be left in the control of individuals, but rather will be placed within a secured structure with the expectation on the part of the owner that the structure itself will provide the desired protection against theft."

Commonwealth v. Barklow, 52 Mass. App. Ct. 765, 767 (2001). Moreover, the structure need not be vacant for property to be "under the protection of the building." Ibid. All that is required is that the property be under the protection of the building "rather than under the protection of the person or persons who are present." Ibid.⁶

In this case, the jury could reasonably have found that the defendant, after "casing" the building and finding its doors and windows locked, attempted to break and enter the DeMichaels' apartment for the purpose of committing a larceny therein, but fled after making a loud commotion in the living room. See Commonwealth v. Ronchetti, 333 Mass. at 81-82 (when a person breaks and enters a dwelling house at night, an intent to steal may be inferred, the inference not requiring proof of an actual larceny). See also Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 361 (1999). Although present at the time of the attempted break and entry, the DeMichaels were both asleep and thus were neither controlling nor supervising their property within the apartment. See Kantrowitz and Maguire, Massachusetts Criminal Law Sourcebook c. 266, 25 n.1, at 266 (MCLE 2001) ("Property is under a person's protection if it is attached to him or his clothing or under his immediate guard"). At that point, they were relying on the security provided by the locked doors and windows of the building, along with the alarm system, to safeguard their possessions. Consequently, their property was under the protection of the building rather than under their personal watch and care. See Commonwealth v. Barklow, 52 Mass. App. Ct. at...