Opinion
No. 14–P–1659.
06-24-2016
COMMONWEALTH v. John HORAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, the former president and business manager of Local 600 of the Office and Professional Employees International Union, AFL–CIO (union) was convicted of two counts of larceny over $250. G .L. c. 266, § 30. Count I was based on the defendant taking excess compensation, both by increasing his salary and selling back his vacation time without authorization. Count II was based on the defendant making six cash withdrawals from the union's bank accounts. With respect to count I, his defense was one of mistaken belief that his actions were permissible. With respect to count II, counsel for the defendant stated in closing that the defendant claimed an honest belief that he could use cash, rather than checks, for union purposes—something forbidden by the union bylaws. However, the jury were instructed that they could convict only if the withdrawals were not for union purposes, and the actual defense was that they were. On appeal, the defendant challenges (1) the instruction that only an honest, reasonable belief that he was entitled to the property is a defense to larceny; (2) the admission of substantial evidence of similar, but unrelated wrongdoing by another union officer; and (3) the sufficiency of the evidence.
The defendant is correct that the instruction on the affirmative defense of mistaken belief was erroneous. During the pendency of the appeal in this matter Commonwealth v. Liebenow, 470 Mass. 151 (2014), was handed down by the Supreme Judicial Court. That case clarifies that an honestly held, mistaken belief is a valid defense to a charge of larceny even if that mistaken belief is unreasonable. Id. at 151–153, 161. Here, however, the judge, without the benefit of Liebenow, instructed that an honest but mistaken belief in the lawfulness of his actions could benefit the defendant only if it were a reasonable belief. The defendant did not object to this instruction, and so we assess whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We conclude that it did with respect to count I but not with respect to count II.
In essence, with respect to count I, if the prosecutor proved that any belief in the lawfulness of the defendant's actions was unreasonable, the prosecution was excused from proving an element of the offense: that that the defendant did not hold a mistaken belief in the lawfulness of his actions. See Liebenow, supra at 161 n. 15. In this case we think that, because there was emphasis at trial on the language of the union constitution regarding salary and benefits, the jury could well have concluded that any mistaken belief held by the defendant was unreasonable. This would have allowed the jury to convict the defendant notwithstanding an honestly held but mistaken belief.
In these circumstances, we cannot tell whether the basis of conviction on count I was a determination by the jury that the defendant did not hold an honest but mistaken belief, or that any such belief would have been unreasonable. See Commonwealth v. Glenn, 23 Mass.App.Ct. 440, 444 (1987) (when judge gave erroneous instruction as to an alternative way to prove criminal intent “[t]he possibility exists that the jury convicted the defendant ... without finding all the elements required by the statute”). In these circumstances, where the jury were in essence misinstructed concerning the elements of the offense, we are constrained to conclude that the erroneous instruction created a substantial risk of a miscarriage of justice. Commonwealth v. Hall, 48 Mass.App.Ct. 727, 730 (2000) (“[W]hen the claim of error pertains to the definition given to the jury of the crime charged, the possibility of a substantial risk of a miscarriage of justice is inherent”); Commonwealth v. Cowans, 52 Mass.App.Ct. 811, 821 (2001) (holding that there was a substantial risk of a miscarriage of justice when an improper instruction “removed an essential element of the crime from the jury's consideration”); Commonwealth v. Stoltz, 73 Mass.App.Ct. 642, 644–645 (2009) (holding that there was a substantial risk of a miscarriage of justice when the jury were improperly instructed on one of two theories of liability).
However, the erroneous instruction could not have affected the defendant's conviction as to count II. The instruction on this count made clear that the jury could only convict the defendant if it found that he “took .... property for his own use.” The prosecutor's closing argument was even clearer. He argued that the defendant “was stealing [the money;] he was using it for his own purposes and not union purposes.” The defendant did not dispute that he withdrew the money from the union bank account and did not claim that he honestly believed he was allowed to take it for his own use. Rather, his defense to count II was that he used the money for union purposes and “reasonably and honestly believed that he [was] entitled to access this money for union purposes.” However, given the jury instruction, the jury must have concluded that as to count II that the defendant took the union's money for his own use when they found him guilty. Accordingly, it would have made no difference to the verdict if the jury had agreed that the defendant honestly believed he was allowed to use the money for union purposes.
The defendant next argues that there was prejudicial error in the admission of certain evidence relevant to both counts I and II. The jury were presented with evidence about the acts of Brian Sheehy, the secretary treasurer of the union at the time the defendant was president, and a codefendant whose case had been, appropriately, severed from the defendant's case. Sheehy testified that he had made cash withdrawals from the account from which the defendant was charged with making six cash withdrawals, and that all his withdrawals were not for union business, but were for personal use. The judge, over objection, allowed the introduction of unredacted bank statements that contained not only a listing of the six cash withdrawals alleged to have been made unlawfully by the defendant, but of hundreds of other cash withdrawals wrongfully made by Sheehy. These bank statements did not indicate who made each withdrawal. Following this ruling, the defendant requested that a previously excluded exhibit to which he had successfully objected, the withdrawal slips corresponding to each cash withdrawal and identifying by whom it was made, be admitted in order to prevent the jury from speculating that the defendant was also responsible for the hundreds of other cash withdrawals listed on the bank statements. He purported, however, to preserve his objection to those withdrawal slips.
The Commonwealth makes several arguments concerning the relevance of these pieces of evidence that we address in turn. We are unpersuaded that either the course of the investigation of Sheehy, which eventually led to the prosecution of the defendant, or the fact that the questions the defendant was initially asked were put to him as part of that investigation, render any of the information described relevant. We do think, however, that there was no abuse of discretion in the judge's determination that some evidence of the ordinary business practice of the union—for example, the fact that only checks were ordinarily used for union business, or that cash withdrawals for personal use were impermissible—was relevant.
Voluminous evidence, however, was not necessary to demonstrate either of those points. And, in particular, in the absence of any evidence even of the defendant's knowledge of the transactions, there would have been a risk of unfair prejudice from evidence that an enormous number of cash withdrawals were made by the defendant's former codefendant—about which there was testimony that they were, to the last one, improper withdrawals for personal reasons.
The defendant, however, has not provided us with copies of the bank statements or the withdrawal slips entered as exhibits below. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995) ; Mass.R.A.P. 18(b), as amended, 425 Mass. 1602 (1997). Further, the judge did give the jury a cautionary instruction stating as follows:
“You have heard some evidence in this trial of the acts of another union official, former treasurer, Brian Sheehy, who served as treasurer of Local 600 during some of the time that this defendant, Mr. Horan, served as president of Local 600.
“Any misconduct that Mr. Sheehy is alleged to have committed during his service cannot be attributed to Mr. Horan. The Commonwealth has not charged Mr. Horan with a joint venture, with a conspiracy or with aiding and abetting Mr. Sheehy through any acts of commission or omission by Mr. Horan.
“You may consider evidence of only Mr. Horan's own acts and intent to determine whether the Commonwealth has met its burden of proof beyond a reasonable doubt with respect to only the charges alleged in these two indictments.
“You may not draw any inferences about Mr. Horan's guilt based on any evidence of any acts or omissions of Mr. Sheehy.”
Given this, we cannot say, based on the limited material before us, that the judge abused her discretion in allowing those materials in evidence.
Of course we do not know what evidence will be offered at retrial on count I, should one occur, but in light of our conclusion on the evidentiary issue above, we trust that each piece of evidence will be carefully scrutinized by the trial judge both for relevance and to determine whether the probative value of each piece of evidence is substantially outweighed by the risk of unfair prejudice. See Commonwealth v. Johnson, 473 Mass. 594, 599 (2016), quoting from Commonwealth v. Crayton, 470 Mass. 228, 249 n. 27 (2014) (“Among our ‘common law principles of fairness' is the evidentiary rule that a judge has discretion to exclude relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice’ ”).
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Finally, we conclude that the evidence was sufficient for a rational jury to find the defendant guilty of each count beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Accordingly, although the conviction on count I is vacated, the Commonwealth may choose to retry the defendant. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995).
Judgment as to count I is reversed and that verdict is set aside.
Judgment as to count II is affirmed.