Commonwealth v. Valleca , 358 Mass. 242 ( 1970 )

358 Mass. 242 (1970) 263 N.E.2d 468

COMMONWEALTH
vs.
CARL VALLECA.

Supreme Judicial Court of Massachusetts, Essex.

September 21, 1970. November 3, 1970.

Present: SPALDING, CUTTER, SPIEGEL, REARDON, & QUIRICO, JJ.

Joel R. Labell for the defendant.

Howard J. Camuso, Assistant District Attorney, for the Commonwealth.

REARDON, J.

The defendant appeals from a sentence imposed in a trial held subject to the provisions of G.L.c. 278, žž 33A-33G, inclusive, following the return of guilty verdicts on charges of being an accessory after the fact to breaking and entering, and of receiving stolen property. The facts are as follows.

During the night of February 16-17, 1968, a break took place at the Addison Gallery at Phillips Andover Academy in Andover. Sixty-seven silver pieces valued in excess of $300,000 were taken. On February 22, 1968, Bartlett H. Hayes, Jr., director of the gallery, received a telephone call from a person whose voice he did not recognize. As a result of this call he went to a restaurant in Methuen the same day where he met with this person, who turned out to be the defendant. The defendant told Hayes that he knew the circumstances of the taking of the silver, as well as the "two youths" who had broken into and entered the gallery. The defendant further stated that the youths had approached him in order to facilitate the disposal of the silver and he asked Hayes whether the gallery would be willing to pay a reward for its return. At a later date the defendant told Hayes the reward would have to be raised to $10,000 from $7,500 because of the intervention of another party. After further arrangement with Hayes, $10,000 was paid to the defendant in twenty and fifty dollar bills. The defendant had Hayes write out a statement providing that in the event the silver was not returned after the payment of the $10,000 the defendant might be held for criminal extortion.

1. The defendant first complains that the indictment for receiving stolen property should have been dismissed on the grounds that the wording of the indictment was confusing, ungrammatical, and unintelligible, counter to G.L.c. 277, ž 17, and that the offence was not proved as charged. Despite the confusing wording of the indictment, the defendant should have been able to understand the nature of the charge against him. If there were confusion he could have availed himself of a bill of particulars as provided in G.L.c. 277, ž 40. See G.L.c. 277, ž 34, which states that "[a]n indictment shall not be quashed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and prepare his defence."

The indictment stated in part that the defendant "did buy, receive, and aid in the concealment of" stolen property while the corresponding part of the statute on which it is based, G.L.c. 266, ž 60, reads, "Whoever buys, receives or aids in the concealment of stolen or embezzled property."

The Commonwealth has properly followed the suggested form of indictment set forth in G.L.c. 277, ž 79, which states in the conjunctive, as it should, the elements of the offence defined in G.L.c. 266, ž 60. In Commonwealth v. Martin, 304 Mass. 320, 322, it was held that when a statute "disjunctively prescribes several acts in a series of acts, all of which are alleged in the complaint, then the Commonwealth may prove the violation of the statute by proof of the performance by the defendant of any one of the said acts." See Commonwealth v. St. Pierre, 175 Mass. 48; Commonwealth v. Ahern, 228 Mass. 547.

2. It is argued on behalf of the defendant that the trial judge should have dismissed the indictment for being an accessory after the fact to breaking and entering on the ground that the burden was upon the Commonwealth to prove that the defendant was or was not related to the thieves. See G.L.c. 274, ž 4, as amended through St. 1943, c. 488, ž 1.

The Commonwealth notes the defendant's reliance on two cases, Commonwealth v. Sokorelis, 254 Mass. 454 (1926), and Commonwealth v. Wood, 302 Mass. 265 (1939). An examination of the pertinent statute, G.L.c. 274, ž 4, as it existed when they were decided, indicates that the burden of proof of the issue of relationship was placed upon the Commonwealth. The legislative history underlying St. 1943, c. 488, ž 1, which amended c. 274, ž 4, indicates that it was the intent of the General Court that the burden of going forward on the issue of relationship should be placed on the defendant. 1943 House Doc. No. 1666. 1943 Senate Journal, p. 909. The clear legislative intent made manifest in the 1943 amendment negates the defendant's argument. The fact that the indictment in this case alleges that the defendant was an accessory after the fact to the commission of a crime by principals described therein as "John Doe and Richard Roe" does not relieve the defendant of his burden of going forward on this issue if he chooses to avail himself of this defence. See Commonwealth v. Doherty, 353 Mass. 197.

3. Error is alleged in allowing in evidence the opinion of Hayes as to the value of the stolen silver on the ground that he was not an expert on its market value. The evidence shows that he had been the director of the gallery for twenty-eight years and he gave testimony on his background, experience, and knowledge of the exhibits and collections in his charge and their values. The qualification of Hayes as an expert lay in the discretion of the trial judge. Standard Paper & Merchandise Co. Inc. v. Springfield, 356 Mass. 475, 477. We see no reason to disturb the judge's ruling that the testimony was admissible.

4. An additional objection of the defendant is to the admission of a picture of a Paul Revere tankard, one of the purloined items, as a violation of the best evidence rule. However, that rule is applicable only to those situations where the contents of a writing are sought to be proved. Commonwealth v. Balukonis, 357 Mass. 721, 725-726. Wigmore, Evidence (3d ed.) ž 796.

5. The defendant complains that the trial judge erred in allowing the witness Deyermond, a police officer, to state whether the principal felons had been apprehended. This question called for an answer within the knowledge of the witness and was admissible although possibly irrelevant. The answer had no particular probative value and it is difficult to see how the defendant was prejudicially harmed. The admission of the evidence was again within the discretion of the trial judge. See Commonwealth v. D'Agostino, 344 Mass. 276, 280.

6. We similarly fail to find any error in the admission of the witness Deyermond's testimony concerning his conversation with the defendant about Deyermond's feelings concerning the negotiations for the return of the silver. Although possibly the testimony was immaterial, we fail to find prejudice against the defendant.

7. At one point the defendant moved for a mistrial on the ground of undue delay. It appears that during part of the trial the judge suspended the trial from time to time for the purpose of calling lists of cases, hearing pleas and motions, and assigning cases for trial. These administrative matters were dealt with at a one-judge sitting of the Superior Court criminal session at Newburyport. It goes without saying that a judge so placed must necessarily, in addition to conducting the trial, engage in administrative work in order to keep the session going efficiently.

8. It is our belief that there was no error in the denial of the defendant's motion for a directed verdict on both indictments. Our review of the evidence indicates that there is ample material on which the jury could conclude that the defendant was guilty on both indictments.

9. The defendant has based certain assignments of error on the cross-examination of several witnesses. We do not discuss these at length. The manner and scope of the cross-examination is largely within the discretion of the trial judge and there was no abuse of that discretion. Commonwealth v. Aronson, 330 Mass. 453, 458-459. Commonwealth v. D'Agostino, 344 Mass. 276, 280. Such questions are not open to revision on appeal unless the substantial rights of a party are clearly shown to have been prejudiced. Commonwealth v. Nassar, 351 Mass. 37, 43-44.

Judgments affirmed.