Heard January 7, 2016.
A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J., and the cases were tried before Jeffrey A. Locke, J.
The Supreme Judicial Court granted applications for direct appellate review.
Larceny. False Impersonation & Identity Fraud. Fraud. Conspiracy. Attempt. Search and Seizure, Arrest. Evidence, Identity, Fraud, Conspiracy. Jury and Jurors. Practice, Criminal, Motion to suppress, Jury and jurors, Argument by prosecutor.
Rebecca A. Jacobstein, Committee for Public Counsel Services, for Branden E. Mattier.
William S. Smith for Domunique D. Grice.Randall E. Ravitz, Assistant Attorney General (Gina M. Masotta, Assistant Attorney General, with him) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
The defendants, Branden E. Mattier and his half-brother Domunique D. Grice, were convicted by a jury on indictments charging one count each of conspiracy to commit larceny, G. L. c. 274, § 7, and attempted larceny, G. L. c. 274, § 6. Mattier also was convicted on an indictment charging one count of identity fraud, G. L. c. 266, § 37E. The charges stemmed from an attempt by the defendants to defraud The One Fund Boston (One Fund) of approximately $2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon. The judge imposed on each defendant a State prison sentence of from three years to three years and one day on the conspiracy count and three years' probation on the attempted larceny count, to run from and after the committed sentence. Mattier was sentenced to an additional concurrent probationary term for his conviction of identity fraud. The defendants appealed, and we granted their applications for direct appellate review.
Although the appeals were not formally consolidated, we have treated them as such, given the substantial congruence of the issues raised by the defendants. Mattier contends that his conviction of identity fraud fails as a matter of law because the charged conduct is insufficient to meet the elements of the statute. Both defendants claim that the judge erred in (1) denying the motion to suppress evidence obtained as a result of Mattier's warrantless arrest for the identity fraud and attempted larceny charges; (2) denying the motions for required findings of not guilty on all charges; and (3) denying the motion to strike for cause jurors who donated to One Fund. Grice also challenges statements made by the prosecutor in closing argument.
We agree, for the reasons explained below, that Mattier's identity fraud conviction fails as a matter of law. Our ruling on the validity of the identity fraud conviction, however, does not compel the reversal of the conspiracy and attempted larceny convictions, because they are based on sufficient legally obtained evidence. The claimed errors regarding the seating of jurors and the prosecutor's closing argument similarly are unavailing.
We recite the facts the jury could have found, reserving certain details for our discussion of the specific issues raised. After two bombs exploded near the finish line of the Boston Marathon on April 15, 2013, One Fund was established. See note 1, supra. In early May, 2013, the administrator of One Fund held two community meetings to discuss distribution. Mattier and Grice attended one of the meetings, and Mattier registered on One Fund's Web site the following day. On May 15, 2013, One Fund disseminated the claims protocol to those persons registered on One Fund's Web site. The levels of payment were based on severity of injury, with the largest amount going to those victims who suffered double amputation. The protocol required that a claimant submit a "hospital statement" confirming the dates of hospital treatment and the nature of the injury. All claims were due by June 15, 2013.
One Fund received a claim form from Mattier on June 12, 2013, stating that Mattier's aunt had been injured in the bombing and had required double amputation as a result of her injuries. Mattier requested that the claim disbursement check be made payable to him at his Boston address. On June 7, he signed the claim form as representative for his aunt, and his signature was notarized. Attached to the claim form was a signed letter purporting to be from Dr. Peter A. Burke, chief of trauma services at Boston Medical Center. The letter, dated May 2, 2013, stated that both of the aunt's legs had been amputated as a result of injuries from the marathon bombings.
One Fund administrators suspected that Mattier's claim form might be fraudulent and conducted an internal investigation. After learning that the aunt died in 2000, they rejected the claim. One Fund administrators alerted the Attorney General's office of the false claim.
As part of the Attorney General's investigation into the matter, the police created a "sting" operation using an overnight courier to deliver a letter to Mattier's residence on July 1, 2013, which stated that the claim had been approved and a check would be arriving July 2, 2013. On July 1, police officers observed Mattier sign for and accept the letter outside his residence while holding his cellular telephone. Subsequently, the police officers obtained a search warrant for Mattier's residence and for Mattier himself at that location.
On July 2, 2013, police conducted a controlled delivery of a fake check to Mattier. State police Trooper John Banik drove to Mattier's residence dressed as a Federal Express delivery driver in a white van bearing a Federal Express logo. Mattier was standing just outside his apartment building when Trooper Banik arrived. The two walked toward each other and met on the sidewalk in front of Mattier's apartment building. Trooper Banik asked Mattier to produce his driver's license and, after explaining that he was delivering a claim check, asked whether Mattier was injured in the bombings. Mattier responded that his aunt had been injured. The trooper copied Mattier's driver's license ...