Commonwealth v. Liebenow

Berry, J. The defendant was convicted of larceny under $250 for the theft of steel pipes and metal plates from a construction site. G. L. c. 266, § 30. At a bench trial, the defendant claimed as an affirmative defense that he lacked the requisite specific intent to steal because he honestly believed that the metal property was abandoned. This defense was unsuccessful. The trial judge determined that the defendant’s stated belief that the pieces of metal were abandoned property — notwithstanding that these metal construction materials were being stored on private property posted with no trespassing signs — even if considered as honest in the defendant’s subjective mind, was not objectively reasonable based on the case evidence. A majority of this court, as reflected by the expanded panel, affirms the conviction. We discern no error in the trial judge’s determination of guilt. The record reflects that the judge understood the law of the affirmative defense of mistake of fact and abandonment in the context of a larceny charge, and correctly applied that law in finding the defendant guilty on the evidence presented. The dissent discerns error in the judge’s guilty finding only by postulating a new formulation of the affirmative defense of mistake and abandonment. That new formulation is that a defendant’s subjectively held honest belief that property is abandoned need not be reasonable and may, indeed, be totally unreasonable. Neither that formulation, nor the dissent’s criticism that the judge incorrectly rejected the abandonment defense in making his finding, supports a reversal of the larceny conviction in this case.2 1. Background of the trial and guilty finding. The following is a brief summary of the trial evidence and entry of the guilty finding. [389] The construction site from which the defendant took the pieces of metal was private property located in Pittsfield. The property was known as Amy Court. There was active, ongoing construction on a townhouse development, with large construction machines, a work trailer, the raising of a building, and the clearing of land. There were several “no trespassing . . . private property” signs posted throughout the site. The defendant drove his pickup truck onto Amy Court during midmoming. The defendant then took several lengths of steel pipe and metal plates and loaded them into the back of his pickup truck. An employee at the site inquired what the defendant was doing. The defendant replied that he was just picking up some junk steel. The defendant drove away from the Amy Court construction site. The police were notified. Shortly thereafter, a police officer stopped the defendant. The bed of the defendant’s pickup truck still contained numerous pieces of pipe, plates, and other metal. When inquired of by the police officer where he had gotten the metal, the defendant first denied that any of the metal came from the Amy Court construction site. The defendant later changed this story and admitted that the metal property was taken from the construction site. However, the defendant testified that he honestly believed the metal was abandoned. In finding the defendant guilty, the trial judge stated, “As far as I’m concerned, the presence of the no trespassing sign puts you on notice that the property was not for you to take. Your honest belief at that point would not be relevant. So I find you guilty, sir.” The dissent sees this statement as error of law. We think not. “When a case is tried without a jury, the legal framework in which facts are to be found is not generally stated with the precision and amplitude of instructions to a jury [and] it is presumed that the judge as trier of fact applies correct legal principles.” Commonwealth v. Kerns, 449 Mass. 641, 655 (2007), quoting from Commonwealth v. Milo M., 433 Mass. 149, 152 (2001). The dissent far too finely parses and interprets the judge’s remark in such a way that would compel a reversal that is entirely unwarranted by the trial evidence. As the trial transcript reveals, the judge referenced the no trespassing signs as “putting] [the defendant] on notice” that the scrap metal was not [390] abandoned. Add to this that the defendant lied when first confronted by the police, denying that he had taken the metal pieces from within the Amy Court construction site. These two incriminating pieces of evidence, when added to the totality of the other evidence at trial, support the judge’s rejection of the affirmative defense of mistake of fact with regard to property abandonment. Contrary to what the dissent writes, the judge’s few words in brief comment concerning the posted no trespassing signs — which comment was tied to evidence that logically tended to demonstrate that the metal property behind the posted no trespassing signs was not abandoned and could not objectively be believed to be so — does not give rise to reversible error. Indeed, because the evidence in the light most favorable to the Commonwealth supported the guilty finding on the existing law of larceny and the affirmative defense of mistake on property ownership or property abandonment, this case could be affirmed without further address.3 However, the dissent would go much further in address and seeks to revamp the existing black-letter law governing this affirmative defense.4 We turn now to this issue concerning the state of the existing law. 2. Mistake of fact with regard to abandonment. As recast under the dissent’s construction, a defendant’s mistaken belief regarding property ownership or abandonment would compel a trial judge to instruct that the jury must acquit (or a judge sitting as fact finder must acquit), even if a defendant’s subjectively expressed honest belief that property is abandoned is, objectively, [391] totally unreasonable. Such acquittals under the dissent’s theory would be compelled so long as a defendant claims — even without any reasonable basis to so believe — that the property had no owner or was abandoned. No Massachusetts case supports this newly defined affirmative defense wrought by the dissent. Indeed, the dissent’s recast is not only out of sync with existing case law but also contrary to the model jury instructions, discussed infra, which define the elements of, and affirmative defenses to, the crime of larceny. Finally, and of import, the dissent’s recast of the affirmative defense of mistake concerning abandonment of property will lead to instructing a jury (and defining the law to be applied by a judge as fact finder) that the jury (or judge) must enter a not guilty verdict (or finding) — even if such an acquittal is contrary to the trial evidence, and even if the acquittal is virtually nonsensical because the defendant’s belief that the subject property was abandoned is entirely irrational and unreasonable, if viewed objectively. We address each of the above-mentioned concerns in turn. a. The case law on this affirmative defense to larceny. As previously observed, the dissent overlooks extant, well-established Massachusetts case law. Hence, we now turn to a number of Massachusetts cases stating that, where a defendant claims as an affirmative defense a mistake of fact concerning the ownership of property or abandonment, such mistaken belief must be both honestly held and reasonable under the circumstances. In Commonwealth v. Anslono, 9 Mass. App. Ct. 867 (1980), the court made clear that, if an affirmative defense is raised premised on a defendant’s mistaken belief concerning ownership interest in property subject to a motor vehicle larceny prosecution (which, of course, encompasses an affirmative defense structured on a lack of any ownership by abandonment), the defendant is entitled to an instruction directed to whether the defendant had both an honest and reasonable belief concerning the property ownership issue. In Anslono, we wrote as follows on the issue: “On the evidence, the judge was required to instruct the jury clearly and correctly, in a fair and impartial manner, [392] on the substantive elements of the crime charged, with particular attention to the crucial question of the existence of a larcenous intent. Commonwealth v. Porter, 10 Met. 263, 283 (1846). Commonwealth v. Carson, 349 Mass. 430, 435 (1965). Commonwealth v. Kelley, 359 Mass. 77, 92 (1971). Commonwealth v. Corcione, 364 Mass. 611, 618 (1974). . . . “His instructions on the question of larcenous intent . . . omitted entirely an instruction that the defendant was entitled to an acquittal if he honestly and reasonably believed that he had title to, and the right to sell, the motor vehicle. Commonwealth v. Stebbins, 8 Gray 492,495 (1857). Commonwealth v. White, 5 Mass. App. Ct. 483, 485-488 (1977).” (Emphasis added.) Anslono, 9 Mass. App. Ct. at 867-868. Thus, the dual requirement of an honest and reasonable predicate for the affirmative defense of mistaken ownership or abandonment in a larceny prosecution is patent in Anslono,5 Cf. Commonwealth v. Titus, 116 Mass. 42, 44-45 (1874) (“[I]f, at the time of first taking [lost goods] into his possession, [the defendant] has a felonious intent to appropriate them to his own use and to deprive the owner of them, and then knows or has the reasonable means of knowing or ascertaining . . . who the owner is, he may be found guilty of larceny”). Also imposing this dual requirement of subjective honesty and objective reasonableness is Commonwealth v. Vives, 447 Mass. 537 (2006). In a section entitled “Honest and reasonable claim instruction,” which concerns this affirmative defense, the Supreme Judicial Court repeatedly echoes the dual requirements: “We recently had the opportunity to outline the definition of an affirmative defense in a criminal case and, more [393] importantly, the effects of such a label on the parties’ respective burdens. Commonwealth v. Cabral, 443 Mass. 171, 178-182 (2005). ... See Model Penal Code and Commentaries § 223.1(3)(b) (1980) (‘It is an affirmative defense to prosecution for theft that the actor . . . acted under an honest claim of right to the property or service involved . . .’). . . . [Here], the defendant’s argument that he honestly and reasonably believed that he was collecting a debt was an affirmative defense. “The label of affirmative defense does not relieve the Commonwealth of its burden of proof, however. Because the honest and reasonable claim defense addresses an element of the crime charged, that of the defendant’s intent to steal, . . . the burden of proof cannot be shifted to the defendant.... The Commonwealth’s burden to disprove the affirmative defense of honest and reasonable claim arises once the defendant has met his own ‘burden of production.’ . . . Thus, if any view of the evidence would support a factual finding that the defendant was acting as creditor to the victim’s debtor, the defendant has met his burden of production and it is incumbent on the Commonwealth to disprove the defense.” (Emphases added.) Vives, 447 Mass, at 540-541.6 So it is, as Vives pinpoints, that this affirmative defense requires a duality of (subjective) honest belief and (objective) reasonableness concerning the ownership or abandonment of property — all as tied to specific intent and to proof of the crime of larceny. Commonwealth v. Larmey, 14 Mass. App. Ct. 281, 283-285 (1982), follows the same black-letter law pattern of requiring this legal duality for the larceny affirmative defense. In that case, the court held that the evidence supported a defense jury instruction [394] concerning both an “honest and reasonable belief” (emphasis added). Id. at 283, 285. Indeed, in Larmey, Justice Smith noted that on the trial record in that case, the larceny instruction requested by the defense was not “directly on point” in that it failed to include both the honest and reasonable belief requirements. “As framed by the defendant, the requested instruction was not directly on point as it did not assume an honest and reasonable belief on behalf of the defendant}[7] but it was ‘close enough’ (see Commonwealth v. White, 5 Mass. App. Ct. [483,] 488 [(1977)]) to require the judge to give the substance of an instruction that the defendant should be acquitted on so much of the indictments as charged him with robbery and stealing (larceny) if the jury should find that the defendant honestly and reasonably believed that the money he took from the victims had been stolen by them from the two women and that he intended to return it to them. There was sufficient evidence to warrant the submission of the defendant’s theory to the jury, especially in view of the testimony of one of the victims in regard to the remarks of the defendant at the time of the incident.” (Footnotes omitted.) Larmey, 14 Mass. App. Ct. at 285. The case of Commonwealth v. White, 5 Mass. App. Ct. at 486-488, is in accord with Anslono, Vives, and Larmey. So, it is noted in Larmey that “[t]he requested instruction in [White] suffered from the same defect” as was present in Larmey, in that the instructions did not explicitly state the requirement of an honest and reasonable belief on the part of the defendant. Larmey, 14 Mass. App. Ct. at 285 n.6. Consistent with what the Larmey case states, in White the court held that “the defendant was entitled to an instruction to the effect that he should be acquitted on so much of the present indictment as charges him with robbery and stealing (larceny) if the jury should find that the defendant honestly and reasonably believed that the money he [395] took from [the victim] represented a debt actually due from [the victim] to the defendant.” White, 5 Mass. App. Ct. at 488. b. The existing larceny model jury instructions. Contrary to the dissent’s recast, Instruction 8.520 of the Criminal Model Jury Instructions for Use in the District Court (2009) (Model Jury Instruction 8.520) correctly indicates that a defendant’s mistaken belief that property is abandoned is a valid affirmative defense to a charge of larceny, only if the defendant’s mistaken belief was both honestly held, from a subjective view, and objectively reasonable. Model Jury Instruction 8.520 tracks the above-discussed, long-standing case law in this State, which requires both an honest belief and a reasonable basis for that belief as predicates for this affirmative defense to larceny. Model Jury Instruction 8.520, which defines the elements of “Larceny by Stealing” and which, as material to this case, defines in Supplemental Instruction 7 the affirmative defense of mistake concerning property ownership (see note 8, infra), follows the precedential path of Anslono, Vives, Larmey, and White to the end of requiring not only an honestly held, but also a reasonable, mistaken belief involving ownership (or abandonment) of the subject property. See Commonwealth v. Gelpi, 416 Mass. 729, 731 (1994) (“The defendant argues that, based on the evidence tending to prove that he had no intent to steal because he had an honest and reasonable belief that the property was his, the jury should have been so instructed. . . . The defendant was entitled to have the jury consider this evidence”). What the dissent would do is split asunder the honestly held and reasonable belief elements in the case law and in the larceny model jury instruction. To do so would mean that a defendant’s honest subjective belief no longer has any mooring to objective reasonableness. To measure how untenable the dissent’s construction actually is, one might consider how a jury instruction would read in light of the new defense crafted by the dissent, as opposed to the present, and correct, instruction contained in Model Jury Instruction 8.520. Under the current Model Jury Instruction 8.520, a proper instruction on mistake of fact regarding ownership and abandonment of property would read as follows: “If the defendant took another person’s property in an [396] honest and reasonable belief that [the defendant] had a legal right to it [including by abandonment] then you must find the defendant not guilty, even if that belief was in fact mistaken, because [the defendant] lacked the intent to steal.”8 In contrast to this established approach, the dissent’s recast would, in effect, yield an instruction (and require a judge to apply the law) in something like the following mode: “If the defendant took another person’s property in an honest but mistaken belief that the property was abandoned — even if that belief was objectively unreasonable — then you the jury (or, you the fact-finding judge) must find the defendant not guilty, because the defendant lacked the intent to steal.”9 [397] As is clear from the plain text of the latter theoretical jury instruction, the construction urged by the dissent has the prospect of yielding absurd verdicts of acquittal. 3. Jury trial waiver. The defendant elected a jury-waived trial, prior to which the trial judge conducted an oral colloquy in open court. The defendant now claims, for the first time on appeal, that this colloquy was inadequate to assess whether his jury waiver was knowing and voluntary. “Because he failed to make a timely objection, we review for a substantial risk of a miscarriage of justice.” Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 787 (2009). We see no such risk. It has long been held that there is no “ ‘rigid pattern’ of factual determinations which a judge must make before concluding a defendant’s waiver of the right to trial by jury was voluntary and intelligent.” Commonwealth v. Schofield, 391 Mass. 772, 775 (1984), quoting from Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979). Although this court does not have before it a transcript of the contested colloquy, the defendant concedes in his brief that the judge explained the defendant’s right to a jury trial; thoroughly addressed the difference between a jury trial and bench trial; acknowledged the defendant’s signed jury waiver form; and confirmed that defense counsel discussed the significance of the jury waiver with the defendant. We further note that the printed jury waiver form, which is present in the record appendix, clearly states that the defendant had been informed of the following: (1) a jury consists of members of the community; (2) the defendant may participate in the jury’s selection; (3) the jury’s verdict must be unanimous; [398] (4) the respective roles of the judge and jury in a jury trial; and (5) how the role of the judge changes in a jury-waived trial. Again, this jury waiver form was signed by the defendant. It was likewise signed by the trial judge and defense counsel. Given all of the foregoing indications, we are satisfied that the defendant was adequately apprised of the significance of his jury waiver. In any event, “ ‘[t]he defendant, being competent, must simply have indicated a comprehension of the nature of the choice’ between a bench and jury trial. [Ciummei, supra at 510.] Such comprehension of the choice may be based on information provided to the defendant by the judge, the defendant’s counsel, the defendant’s personal knowledge, or some other source.” Schofield, 391 Mass, at 776. Here, the judge’s colloquy, combined with the signed waiver form, provides ample assurance that the defendant’s waiver was voluntary and intelligent. Judgment affirmed. Footnotes [2] We also address the defendant’s ancillary claim that his jury trial waiver was not knowing and voluntary. As discussed in part 3, infra, this claim is not availing. [3] The question of property ownership and claim of right to property encompasses both straight legal ownership questions and abandonment. However, because this is an abandonment case, to shorten phrases, the single term “abandonment” will be predominantly used herein. However, the issue presented in the majority and dissent in this case encompasses claims of both right to property and abandonment; so, from time to time, the longer double terms will also be used herein. [4] Statements in the dissent suggesting that Massachusetts case law is not clear are without foundation. See, in particular, Commonwealth v. Anslono, 9 Mass. App. Ct. 867, 867-868 (1980). See also Commonwealth v. Vives, 447 Mass. 537, 540-541 (2006); Commonwealth v. Larmey, 14 Mass. App. Ct. 281, 283-285 (1982); and Commonwealth v. White, 5 Mass. App. Ct. 483, 486-488 (1977). All of these cases address this affirmative defense of mistake of ownership and claim of right to property and the element of specific intent. The cases are further described in more detail in part 2 of this opinion, infra. [5] Cf. Commonwealth v. Sherry, 386 Mass. 682, 697 (1992), which states as follows: “The defense of mistake of fact, however, requires that the accused act in good faith and with reasonableness. See Commonwealth v. Presby, 14 Gray 65, 69 (1860); Commonwealth v. Power, 7 Met. 596, 602 (1844); R. Perkins, Criminal Law 939-940 (2d ed. 1969).” While the Sherry case is discussing mistake of fact in a rape prosecution, not a larceny prosecution, the direct dual requirements of mistake of fact have equal application in both offense proof questions. [6] The dissent discusses that larceny is a specific intent crime. Of course, specific intent is required to prove larceny. “To support a conviction of larceny under G. L. c. 266, § 30, the Commonwealth is required to prove the ‘unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently.’ ” Commonwealth v. Mills, 436 Mass. 387, 394 (2002), quoting from Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985). But that does not change the legal principles concerning the reasonableness element of the abandonment affirmative defense as the above cases establish. See, in particular, Anslono and Vives, which directly address the specific intent issue. [7] The requested instruction was this: “If you find . . . that the money was taken from the two persons with intent to return [] it to the two women . . . claimed to be robbed, then you must find the defendants not guilty.” Larmey, 14 Mass. App. Ct. at 283. Thus, the sought instruction included the subjective component but omitted the objective component of the defense. [8] As currently printed, the portion of Model Jury Instruction 8.520 relating to mistake concerning property ownership reads as follows: “Claim of right. If the defendant took another person’s property in an honest and reasonable belief that (he) (she) (another person on whose behalf he [she] was acting) had a legal right to it, then you must find the defendant not guilty, even if that belief was in fact mistaken, because he (she) lacked the intent to steal.” Criminal Model Jury Instructions for Use in the District Court, Instruction 8.520, Supplemental Instruction 7 (2009). [9] Furthermore, bypassing clear Massachusetts law, the dissent turns to a survey of out-of-State law, relying on other States to answer a question our Supreme Judicial Court, as well as this court, has already addressed. See post at 406-409 & nn.14-16. There are other inherent problems with this out-of-Massachusetts law survey in the dissent, in that certain States, with cases relied upon by the dissent, have quite different mistake-of-fact statutes. For example, State v. Sexton, 160 NJ. 93 (1999), does not stand for the proposition that an unreasonable mistake of fact is exculpatory. Indeed, New Jersey’s “defense of mistake” statute requires that the defendant “reasonably arrived at the conclusion underlying the mistake.” Id. at 103. The court concluded that an alleged mistake of fact as to whether a gun was loaded could be a defense to reckless manslaughter, and that the jury should be instructed to determine whether the defendant’s mistaken belief was recklessly formed. Id. at 106. See State v. Abbey, 13 Ariz. App. 55, 57 (1970) (concluding that the State did not disprove the defendant’s contractual claim-of-right defense, with no discussion of reasonableness). Further complicating the dissent’s reliance on out-of-Massachusetts law is that the text of other State larceny statutes differ markedly from our larceny statute, G. L. c. 266, § 30. For example, in State v. Cavness, 80 Haw. 460, [397] 463 (Ct. App. 1996), the court analyzed Hawaii’s trespass statute in light of another Hawaii statute, which mandates that the State must prove a minimum of recklessness when no mental state is specified in a statute (such as in the trespass statute). Accordingly, the court remanded for a new trial that would include the determination whether the defendant’s belief in his right to be on the premises was reckless, stating that “an unreasonable belief may or may not be a reckless belief.” Id. at 466. Under the pertinent State statutes, reasonableness was not the relevant inquiry, and an unreasonable belief, if arrived at recklessly, would not excuse the defendant’s conduct. See People v. Zona, 14 N.Y.3d 488, 492-493 (2010) (citing New York’s statute on larceny defenses, Penal Law § 155.15[1], which states that “it is an affirmative defense that the property was appropriated under a claim of right made in good faith,” and reasoning that the statute does not require reasonableness).