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October 24, 1977


Suffolk. Indictments found and returned in the Superior Court on June 19, 1975. The cases were heard by Nelson, J.

Hale, C.j., Armstrong, & Brown, JJ. Brown, J., Concurring.


Receiving Stolen Goods. Evidence, Circumstantial. Joint Enterprise. Practice, Criminal, Sentence.

The opinion of the court was delivered by: Hale

Evidence at the trial of indictments charging the defendant with receiving stolen property, even though circumstantial, was sufficient to warrant a finding that the defendant possessed the property, knowing it to be stolen. [651-653]

At a criminal trial, the Judge did not abuse his discretion in considering at sentencing information submitted in two affidavits of police and security officers purporting to show that the defendant had been engaged in other criminal activity for which he had not been indicted. [653-656] Brown, J., Concurring.

The defendant was tried before a Superior Court Judge sitting without a jury and found guilty under an indictment charging unlawful possession of 473 counterfeit motor vehicle operators' licenses and two indictments which charged receiving stolen property. He assigns as error (1) the Judge's denial of his "Motion for a Directed Verdict" after the close of the Commonwealth's case and (2) the Judge's consideration at sentencing of information submitted in affidavits concerning alleged prior criminal conduct by the defendant for which he had been neither convicted nor indicted.

At trial John J. Crowley of the Boston police, attached to the organized crime unit of the Suffolk County district attorney's office, testified that in May of 1975 he participated in the investigation of the manufacture of counterfeit Massachusetts drivers' licenses which were being used as identification by passers of counterfeit checks. During that month Detective Crowley was looking for stolen Polaroid I.D. cameras which were used to make the licenses. On the morning of May 29, 1975, he set up a surveillance of the area in the rear of a motel in Revere. He positioned himself so that he had a clear view of rooms 214 and 215. At approximately 2:15 p.m. Detective Crowley observed a station wagon drive into the rear parking lot of the motel and back up to a staircase which led to rooms 214 and 215. Three men got out of the car. The driver opened the rear of the car, and the other two men went up the stairs towards rooms 214 and 215. About a minute later these same two men came down the stairs carrying a suitcase and clothing which they put in the rear of the car. They then made a second trip up the stairs, accompanied this time by the driver, and about two minutes later came down carrying bags, suitcases, and two articles measuring about two feet on each side, wrapped in green plastic bags. Those items were also placed in the rear of the station wagon. At this point Detective Crowley recognized one of the men from previous investigations and police photographs to be the defendant.

Detective Crowley further testified that after the car had been loaded, the three men entered it and drove out of the parking lot at a high rate of speed. A short time later Crowley and another officer approached the car at a gasoline station where it had stopped. Detective Crowley saw through side windows of the station wagon that one of the square articles had been partially exposed due to a tear in the plastic bag. He observed a plate on the article, which bore the name "Polaroid I.D.-2." He recognized it to be a cutter section of a camera used in the making of Massachusetts licenses.

At that time the defendant and his two companions were arrested, the automobile was secured, and a search warrant was obtained to search the car and rooms 214 and 215 of the motel. As a result of a search of the motel rooms (pursuant to the warrant) the police discovered a paper cutter, a box of bonded check paper, some remnants of cut check paper and a plastic laminating material used in the Polaroid camera. In the station wagon the police found a Polaroid Land I.D.-2 camera which they knew to have been stolen; 473 blank counterfeit Massachusetts drivers' license forms; three validating stamps which had been stolen from the Registry of Motor Vehicles; eighty-seven series E savings bonds, which had been stolen November 20, 1974; several blank Oregon and Alabama drivers' license forms; an American Telephone common stock certificate; blank Social Security and firearm identification cards; several hundred checks, later determined to have been stolen from the United States mails; and several negative copies of checks used in the reproduction of such checks by a photo offset process.

1. The defendant first argues that the Judge should have granted his motion for a finding of not guilty as there was insufficient evidence from which the Judge could have found that the defendant knowingly possessed the property or that he knew or believed the property in question to be stolen. We disagree. Viewing the evidence in the light most favorable to the Commonwealth, as we must, Commonwealth v. Flynn, 362 Mass. 455, 479 (1972); Commonwealth v. Perry, 3 Mass. App. Ct. 308, 312 (1975), we hold that the denial of the motion was proper.

The elements of proof essential to convict a defendant of receiving stolen property (G. L. c. 266, § 60) are that (1) one must buy, receive or aid in the concealment of property which has been stolen or embezzled, (2) knowing it to have been stolen. Commonwealth v. Donahue, 369 Mass. 943, 949 (1976), cert. denied, 429 U.S. 833 (1976).

The absence of direct evidence that the defendant knew that the property in the station wagon and in the motel rooms had been stolen did not require the Judge to order a finding of not guilty. "When knowledge is an essential element of an offense, it can be proved by circumstantial evidence." Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 613 (1976). It is possible to establish guilt beyond a reasonable doubt "even though the inferences from the facts established are not unescapable or necessary . . . ." Commonwealth v. Obshatkin, 2 Mass. App. Ct. 1, 2 (1974), quoting Commonwealth v. Alba, 271 Mass. 333, 337 (1930). "Although there was no direct testimony that the defendant had knowledge that the property was stolen, it was nevertheless a question of fact for the to decide upon all the evidence, including the defendant's possession of the stolen property and the inferences to be drawn from this circumstance, whether the defendant received the goods, knowing them to be stolen." Commonwealth v. Peopcik, 251 Mass. 369, 371 (1925).

The defendant's active participation in assisting and loading the stolen articles into the vehicle supports a finding that he "possessed" the stolen goods. Whether or not the defendant personally held and transported each item of stolen property is immaterial where, as here, there was sufficient evidence from which the Judge could conclude that the defendant and the two other men were engaged in a joint enterprise. Commonwealth v. Stasiun, 349 Mass. 38, 49 (1965). Commonwealth v. Benders, 361 Mass. 704, 707-708 (1972). Commonwealth v. Mangula, 2 Mass. App. ...

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