Evidence that an insurance agent had obtained from an elderly woman a check in an amount greater than the total premiums due on three policies was insufficient to warrant a finding that the agent had committed larceny where there was no evidence other than proximity in time to link the policies and the check ; nor was evidence that one of the policy applications was cancelled and the premium check for it returned sufficient to warrant a finding of guilt where there was no evidence that the agent had retained the check rather than returning it to the woman .
INDICTMENTS found and returned in the Superior Court on March 21, 1978.
The cases were tried before Foster, J., a Municipal Court judge sitting under statutory authority.
John P. Courtney (Thomas J. Herbert with him) for the defendant.
HALE, C.J. The defendant was convicted on nine indictments charging larceny of property worth more than one hundred dollars and on two charging larceny of property worth less than one hundred dollars. [Note 1] The defendant was the proprietor of Yankee Insurance Agency (Yankee). The indictments against him were based on a series of insurance transactions between March 10, 1977, and November 18, 1977. The defendant has claimed various errors in the trial, which we shall discuss below. We review first the denial of the defendant's motions for directed verdicts on all eleven indictments. We begin our discussion of each indictment by summarizing the evidence relevant to it in accordance with the principles stated in Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The Commonwealth proceeded on the theory that the defendant had committed larceny by false pretenses, which requires proof (1) that a false statement of fact was made, (2) that the defendant knew or believed the statement to be false when he made it, (3) that the statement was made with the intent that the person to whom it was made should rely upon its truth, and (4) that that person did rely on it as true and parted with personal property as a result. Commonwealth v. Leonard, 352 Mass. 636, 644-645 (1967). The question as to each indictment is whether sufficient evidence was presented on those elements.
These two indictments charged larceny from Alice Booth on or about November 18, 1977, and October 20, 1977, respectively. Much of the evidence came from the testimony of one Vicino, who had worked for the defendant as an insurance salesman. On October 20 Vicino went to the home of Booth, who was seventy-nine years old at the time. He had been told by the defendant that Booth had written a check for $1,750, which had been returned for insufficient funds, and that he should obtain a cashier's check from her for that amount. Vicino took Booth to a bank, where she purchased a $1,750 check and turned it over to Vicino. He gave the check to the defendant, who gave him $875. No insurance application was filled out at that time.
Approximately one to one and one-half weeks later, the defendant telephoned Vicino and told him that it was "time to pick up another check" from Booth. The defendant said that "the State was going to get all her money so why shouldn't I get a piece of the action." When Vicino refused, the defendant told him that he "was in as deep as [the defendant] was." The defendant called him four or five times after that to encourage him to return to Booth's home. He told Vicino that Booth "wouldn't know one day from another" and that he had "nothing to worry about." The defendant then came to Vicino's home and told him to pick up the check. He again told Vicino that he "was in it as deep as [the defendant] was" and that Vicino had no choice. On November 18, 1977, Vicino again took Booth to the bank, where she purchased a check for $1,530. After Vicino gave the check to the defendant, the defendant paid him $750.
that he, Vicino, was the one being sought by the police and that it appeared that he "was the brains behind the whole thing." The defendant suggested that Vicino leave the State.
Vicino's testimony, along with the various checks, deposit slips and applications introduced in evidence, provided ample support for a finding that the defendant had committed larceny from Booth on October 20, 1977, and on November 18, 1977. The incriminating statements made by the defendant to Vicino were evidence that he had formed an intent to steal from Booth before he sent Vicino to pick up the November 18 check. The jury could also have inferred from those statements that the defendant had intended to steal from Booth when he sent Vicino to pick up the October 20 check, and that his plan to provide the police with a backdated application was to hinder their investigation of his activities.
to Vicino which we have discussed on indictments 38478 and 38480, and by the evidence introduced in those cases of the defendant's criminal conduct in connection with the sale of other insurance to Booth. See Commonwealth v. Wilson, 355 Mass. 441, 443 (1969). The defendant has made no argument that the indictment charging larceny on or about August 23, 1977, might not be supported by proof of a larceny in April, 1977, and we do not discuss that question. See Commonwealth v. Corcoran, 348 Mass. 437, 442 (1965).
These two identically worded indictments charge larceny from Booth on March 10, 1977. The evidence presented on one of these indictments (it is not clear which) consists of an approved application for a United policy for Booth with an annual premium of $362.17, dated March 4, 1977, and reciting that such a policy was issued March 15, 1977; an Academy Life Insurance Company (Academy) policy and a rider thereto with an aggregate annual premium of $317.90, issued March 5, 1977; an unapproved application for an American Fidelity Life Insurance Company (American) policy with a $1,200 annual premium, dated March 4, 1977; and a $2,200 check issued by Booth to Yankee dated March 4, 1977. The Commonwealth relied on that evidence as sufficient to prove larceny of the difference between the total of the premiums for the three policies ($1,880.07) and the amount of the Booth check ($2,200). There was no evidence other than proximity in time to link the policies and the check. [Note 2] Thus, regardless of any fraudulent scheme which could have been found by the jury, the existence of any overcharge for these three premiums was purely conjectural. See Commonwealth v. Louis Constr. Co., 343 Mass. 600, 606 (1962).
The other March 10 indictment arose from the same transaction in so far as the policy application to American was concerned. Here the prosecution relied on the additional evidence that that application had been cancelled before any policy was issued and that a $1,200 premium check written by the defendant which had accompanied the application had been returned to him by American. Even if it could have been found that Booth's $2,200 payment to the defendant was made on account of premiums which included the $1,200 one to American, there was no evidence that he committed larceny by false pretenses when he accepted that payment from Booth, and the fact that he apparently forwarded his own $1,200 check with the application cuts the other way. Nor was there sufficient evidence to support a conviction on an embezzlement theory. An officer of the bank in which the defendant maintained a checking account, who testified at the trial that the defendant's $1,200 check to American had not been presented for payment, could have been asked if her records showed whether the defendant had issued a check to Booth when his $1,200 check was returned to him or whether he had later issued a check for a policy for Booth from a different company in the same amount. She was not so questioned, nor was any other evidence introduced which would have shown either payment to Booth of the money received or the absence of such payment. Thus, although the jury could have found from the other evidence of the defendant's scheme to defraud Booth that he had had the necessary intent to retain the $1,200 when his check was returned by American, there was no evidence that he did in fact retain it. The jury could not have found beyond a reasonable doubt that the defendant stole the $1,200. See Commonwealth v. Latimore, 378 Mass. at 677-678.
monthly premium of $100 substituted. The defendant's check for $100 accompanied the application. On November 3, 1977, American received a note from the defendant asking that the policy be changed to an annual basis, asking that the effective date be changed to June 1, 1977, and stating that a $1,100 check was enclosed. American had on file a microfilm copy of a $1,100 check written to it by the defendant on October 31, 1977, with a notation showing Molony's policy number. The check was stamped "insufficient funds." The evidence that the defendant received $1,200 from Molony, that he waited nearly two months before submitting an altered application to American in an amount one-twelfth of what he had received from Molony, and that he later submitted the bad check for the remaining $1,100, supported a finding that at the time the defendant accepted Molony's money, he intended to and did keep $1,100 for his own use. The other occasions of the defendant's fraudulant sale of insurance proved at the trial lent further support for this conclusion. See Commonwealth v. Edgerly, 6 Mass. App. Ct. 241, 252 (1978). Taken as a whole, the evidence warranted a verdict of guilty on this indictment.
5, 1978, and a premium amount of $234.80. Molony testified that the signature on the application for the policy received by United was not his and that he had not applied for the policy. This evidence was admitted to show the defendant's consciousness of guilt through his belated attempt to furnish Molony insurance with a premium amount approximating the excess of the amount received over the total amount of the premiums on the two policies issued in March. This evidence warranted a finding that the checks were received by the defendant from Molony with the concurrent intent to steal $230.23.
On May 11, 1977, the defendant and Vicino went to the home of one Gertrude Hill, who was eighty-five years old, and sold her two insurance policies with a combined annual premium of $385.65. No other insurance was sold to her that day. They received a check from her for $453.83. After they left Hill's home the defendant told Vicino that there had been a $60 "policy," or application fee added to the cost of the policies. He gave Vicino half of that amount in addition to his normal commission. Hill was not told of this extra charge, and it was not listed on the application. This evidence warranted a finding that the defendant represented to Hill that the premiums for the two policies totalled $453.83 and that he had fraudulently induced her to pay about $60 more than the actual premiums for the policies.
which was taken from the defendant's records, bears a notation on the back, "Prem. 130.71 Cataganni [sic]." Catignani never received a policy from the defendant and was unable to contact him by letter, by telephone or in person. A representative of the Union Fidelity Life Insurance Company testified that the company never received from the defendant any application or correspondence concerning Catignani. The jury could have found from this evidence that the defendant had obtained Catignani's check by false representations, intending to keep the money. Further support for the conclusion that the defendant's failure to obtain a policy for Catignani was not inadvertent or otherwise innocent could be found in the proof of other fraudulent conduct under similar circumstances. See Commonwealth v. Edgerly, 6 Mass. App. Ct. at 252.
them of the amounts of the premiums when she wrote the check to Yankee on their behalf. The evidence warranted the verdicts under either a false pretense or embezzlement theory of larceny. See G. L. c. 277, Section 41; Commonwealth v. King, 202 Mass. 379, 387-389 (1909); Commonwealth v. Corcoran, 348 Mass. at 440-441.
In summary, the motions for directed verdicts on indictments 38478, 38480, 38481, 38486, 38488, 38490, 38491, 38493 and 38494 were properly denied; the motions for directed verdicts on indictments 38482 and 38483 should have been allowed.
The defendant argues that a search of his home was made under an unconstitutional "general warrant" and in violation of G. L. c. 276, Sections 1, 2, and that Yankee's records which were seized from there should have been suppressed. He also argues that the affidavit in support of the warrant was insufficient to establish probable cause for its issuance. The warrant directed the seizure of "All records and papers of the Yankee Insurance Agency." We shall describe the contents of the affidavit below in our discussion of probable cause.
Although the warrant was not "general," we must nevertheless determine whether there was probable cause for its issuance. We are particularly concerned with whether, if probable cause did exist, it was probable cause which would justify seizure of all of Yankee's records -- that is, whether the scope of the search was impermissibly broadened beyond the foundation of probable cause. See VonderAhe v. Howland, 508 F.2d 364, 369-370 (9th Cir. 1975); United States v. Roche, 614 F.2d 6, 7 (1st Cir. 1980). We bear in mind the requirement of Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967), that there must be cause to believe that "mere evidence" which is to be seized pursuant to a warrant will aid in a particular apprehension or conviction. See Andresen v. Maryland, 427 U.S. 463, 482-484 (1976).
The warrant affidavit stated that the affiant, a sergeant in the State police, had received information from two named investigators from the Division of Insurance. An investigation had resulted from the complaint of one named woman (not one of the victims specified in any of the indictments). The affidavit stated that the investigation "resulted in serious allegations of criminal nature in regards to the Yankee Insurance Agency and its business transactions," including "[p]olicies paid for [which] were not received by the insureds and monies placed in the Yankee Insurance Agency account." Those statements formed the essential basis for probable cause to believe that criminal acts had been committed, though the affidavit recited additional facts going to the urgency of seizing Yankee's records (i.e., that the defendant was aware of the investigation, that he had closed the agency and disposed of a number of insurance records, and that the affiant feared that the remaining records would be destroyed).
in favor of upholding the warrant. Commonwealth v. Grammo, supra at 450-451. See United States v. Ventresca, supra at 106.
We turn then to the breadth of the warrant. A commonsense reading of the affidavits reveals a broad scheme by the defendant. This is not a case in which there was any basis in the affidavit for restricting the warrant to, for example, one specific type of insurance policy, as would have been required in United States v. Roche, 614 F.2d at 7. Nor is this case like VonderAhe v. Howland, 508 F.2d at 366-370, in which the Internal Revenue Service knew specifically that it sought records of certain types and distinctive colors which were kept in a certain file cabinet in a certain room of a dentist's office, but obtained a warrant to search his entire office and home. The probable cause established by the affidavit brought into question Yankee's entire operation and indicated the probable existence of a scheme to defraud a broad range of its clients. While more particularization of records sought is desirable "whenever possible," Commonwealth v. Accaputo, 380 Mass. 435, 447 (1980), we conclude that in this case particularization was not possible. The warrant did not exceed the foundation of probable cause established by the affidavit.
intent at the time of the original transaction." He then instructed the jury that "in larceny there are several elements that our court has decided in order to prove larceny" (emphasis supplied), and he listed correctly the elements of larceny by false pretenses. See Commonwealth v. Leonard, 352 Mass. at 644-645. The judge offered no further definition or explanation of larceny. The defendant excepted to the instruction that the defendant need not have formed an intent to steal at the time he received property from the victim.
the original transaction until the date of the indictment," makes no sense. The instruction is obviously inconsistent with the requirement that a criminal misrepresentation must be knowingly false and made with the intent that the person to whom it was made rely on its truth. It is true that a defendant who obtains money from a client and later forms the intent to keep it may be guilty of embezzlement, but the judge made no attempt to define embezzlement separately or to distinguish it from the form of larceny that he did define. The judge had an obligation to state the applicable law clearly and correctly to the jury, so that they would understand the basis for their verdicts. Commonwealth v. Knapp, 10 Pick. 477, 496 (1830). Commonwealth v. Corcione, 364 Mass. 611, 618 (1974). Commonwealth v. Wood, 380 Mass. 545, 548 (1980). We cannot speculate about what the effect the judge's confusing instructions had on the jury, and we must reverse. See Commonwealth v. Corcione, supra at 617; Commonwealth v. Wood, supra at 548-549.
Because we reverse on the judge's larceny instruction, we need not reach the defendant's exception to the judge's definition of reasonable doubt, a definition that is unlikely to be repeated on retrial. We note, however, that the language used by the judge, "In order for you to find [the defendant] not guilty you must have a doubt with a reason," implies a shift of the burden from the Commonwealth to the defendant. As such it may not be as immune from challenge as the language, "doubt based upon a reason," standing alone, now appears to be. Compare Commonwealth v. Bjorkman, 364 Mass. 297, 307-309 (1973) ("doubt based upon a reason," even if of doubtful propriety, not prejudicial in context of charge in its entirety); Commonwealth v. Coleman, 366 Mass. 705, 712 (1975) ("doubt based upon a reason" held "satisfactory"); Commonwealth v. Hughes, 380 Mass. 596, 601 (1980) ("doubt based upon a reason" approved).
The defendant raises three other issues which may arise on retrial. [Note 5] Accordingly, we address them now.
Counsel for the defendant, in cross-examining Detective Smith of the Barnstable police about his memory of a conversation he had had with the defendant, showed him a report he had made about another aspect of the investigation. Smith acknowledged that no conversation with the defendant was described in the report and that he had not made another report covering a conversation with the defendant. After this questioning, the Commonwealth offered the report in evidence, and it was admitted subject to the defendant's exception. The report shown to Smith contained information received from a bank officer about the activity in Alice Booth's checking account, and repeated statements that appear to have been made by Booth to the bank officer. Included in the report is the statement, "It appears that Mrs. Booth is afraid of these men; she even described the situation as `them putting a gun to her head' but it is believed that this was just her way of describing it; rather than an actual gun being used."
Such a police report, containing multilevel hearsay, is inadmissible. Kelly v. O'Neil, 1 Mass. App. Ct. 313, 314-317 (1973). Commonwealth v. Happnie, 3 Mass. App. Ct. 193, 199-200 (1975). See Julian v. Randazzo, 380 Mass. 391, 392-394 (1980). The Commonwealth contends, however, that the report became admissible under the rule of Leonard v. Taylor, 315 Mass. 580, 581 (1944), which provides that "where a party at a trial calls for a document from his opponent and in response to the call receives it and examines it, the document may be put in evidence by the opponent, even though it would have been incompetent if it had not been called for and examined."
We need not decide whether the Leonard rule should apply to a report such as this requested at a criminal trial, [Note 6] because no demand was made at the trial which would trigger the Leonard rule. As far as can be determined from the transcript of the trial, the report was first obtained by counsel for the defendant during his examination of Smith at the hearing on the motion to suppress, and was at that time marked only for identification. This was, of course, outside of the hearing of the jury and was not an example of the "bold and dramatic demand" which the Leonard rule was designed to protect against. Leonard v. Taylor, supra at 582. See Commonwealth v. Marsh, 354 Mass. 713, 721 (1968). [Note 7] By the time the defendant referred to the report when questioning Smith at the trial, it was already in the court's possession.
A police officer's notes of a conversation with a defendant were admitted in evidence in similar circumstances, after the officer had been cross-examined, in Commonwealth v. Beaulieu, 333 Mass. 640, 648-650, cert. denied sub nom. Weaver v. Massachusetts, 351 U.S. 957, and sub nom. Boisvert v. Massachusetts, 352 U.S. 857 (1956). In Beaulieu the admission of the police officer's notes was held to be error even though the defendant in that case, unlike the defendant here, had cross-examined the policeman about the substance of his notes. It was error to allow Smith's report to be admitted in evidence.
2. Motion for Statements of Defendant.
represented to the judge that the statements he had provided were verbatim reports of all the defendant's statements and that they had been taken from reports which contained information concerning ongoing investigations of other insurance agencies. The defendant requested that the judge conduct an in camera review of "all those statements." The judge, accepting the prosecutor's representation that he had turned all statements over to the defendant, refused. The defendant claims that this was error under Commonwealth v. Lewinski, 367 Mass. 889, 900-903 (1975).
We hold that the judge had no obligation to conduct an in camera review of the prosecutor's reports in the circumstances of this case. No suggestion was made that the statements of the defendant, which were the subject of the motion and which the prosecutor stated were supplied verbatim, were edited in any way. The judge was justified in accepting the prosecutor's representation that he had supplied the defendant with all statements. We note as well that we have sent for the statements submitted by the prosecutor, which were filed with the court, and it is clear that the substance of all significant statements of the defendant introduced through testimony at trial was contained in the statements submitted.
The defendant claims error in the denial of his motion to sever the eleven indictments from each other. Whether indictments joined for trial should be severed is a matter within the sound discretion of the judge. Commonwealth v. Drew, 4 Mass. App. Ct. 30, 33 (1976). Commonwealth v. Doyle, 5 Mass. App. Ct. 544, 547 (1977). To determine whether the judge has abused his discretion, we look to see whether joinder has resulted in prejudice to the defendant or whether his substantive rights have been adversely affected. Commonwealth v. Doyle, supra at 547. Ordinarily when, as here, the offenses joined are "kindred and liable to punishment of the same general character," there is no abuse of discretion in refusing to sever indictments. Commonwealth v.
Drew, supra at 33. Commonwealth v. Doyle, supra at 547. We note that if the indictments had been severed, evidence relevant to each could have been introduced at the trial of the others to prove the defendant's intent to commit larceny by false pretenses. See Commonwealth v. Benjamin, 3 Mass. App. Ct. 604, 623-627 (1975); Commonwealth v. Edgerly, 6 Mass. App. Ct. at 252. We cannot say that the defendant's substantive rights were adversely affected if the jury "cumulated" the evidence. There was no abuse of discretion.
The judgments are reversed and the verdicts set aside. Judgments of acquittal are to be entered on indictments 38482 and 38483.
[Note 1] Indictments 38478, 38480, 38482, 38483, 38486, 38488, 38491, 38493 and 38494 were for larceny of more than one hundred dollars; 38481 and 38490 charged larceny of less than one hundred dollars.
[Note 2] Thus, the evidence presented on this indictment falls short of that presented on 38481. In 38481 a direct connection between the policies and the check introduced in evidence was provided by the deposit ticket, which listed an excessive payment by Booth for the three policies applied for on that day, and by the evidence that no other policy was issued to her by the insurance company referred to on the deposit ticket.
[Note 3] The Supreme Judicial Court has reserved the question of what degree of specificity in the description of documents might satisfy the Fourth Amendment but has said "that it is better practice, whenever possible, to frame documentary descriptions in particularized terms. See In re Lafayette Academy, Inc., supra at 4 n.4." Commonwealth v. Accaputo, 380 Mass. 435, 447 (1980). It is not clear whether a constitutional requirement that the description of documents in a warrant be narrowed by "category, time periods, and the like," as is suggested in In re Lafayette Academy, Inc., 610 F.2d 1, 4 n.4 (1st Cir. 1979), would be designed to protect against something other than the danger of the exercise of discretion by the executing officer. We prefer to analyze this question by comparing the probable cause established by an affidavit with the range of materials described in the warrant to determine whether the warrant is broader than the probable cause supporting it. We do so below.
[Note 4] In Corcoran, it was held that the judge could instruct the jury on any theory of prosecution for larceny which was supported by proof at trial even though the Commonwealth had specified in its bill of particulars that its theory of prosecution was false pretenses. The bill of particulars only restricted the Commonwealth in the proof it could present at the trial, although evidence which supported a charge of larceny by false pretenses could also be used to obtain an embezzlement conviction once introduced. The reason for this rule is that false pretenses and embezzlement have been combined into the one crime of larceny to prevent a defendant from escaping punishment for one form of larceny because his crime is found to be technically another form of larceny. Commonwealth v. Corcoran, 348 Mass. 437, 440-441 (1965). See G. L. c. 266, Section 30.
[Note 5] We do not reach the defendant's objection to the prosecutor's remarks in his summation because that issue is not likely to recur.
[Note 6] See Commonwealth v. Ellison, 376 Mass. 1, 22-23 & n.11 (1978).
[Note 7] If the report had been obtained from the Commonwealth at the pretrial discovery stage, it would not have been rendered admissible under Leonard. Commonwealth v. Ellison, 376 Mass. 1, 22-23 (1978).