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16-P-396                                             Appeals Court

               COMMONWEALTH    vs.   DARRYL S. GREEN.


                          No. 16-P-396.

       Barnstable.     May 3, 2017. - September 27, 2017.

   Present:   Green, Wolohojian, Massing, Shin, & Ditkoff, JJ.


Larceny. Building. Evidence, Admissions and confessions,
     Corroborative evidence. Practice, Criminal, Admissions and
     confessions, Sentence.



     Indictment found and returned in the Superior Court
Department on June 12, 2015.

    The case was heard by Robert C. Rufo, J.


     Eric W. Ruben for the defendant.
     Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.


    DITKOFF, J.   The defendant appeals after his conviction at

a jury-waived trial of stealing in a building, G. L. c. 266,

§ 20, arising out of his theft of $240 from the home of his

recently murdered neighbors.    This case requires us to consider

the nature of the corroboration required to support a conviction
                                                                     2


based on a defendant's confession and to discern the dividing

line between property stolen from a building and property stolen

from the custody of a person in the building.      Concluding that

the confession was adequately corroborated and that the evidence

made out the crime of stealing in a building, we affirm.1

     1.     Background.   Sometime between the evening of June 11,

2013, and the early morning of June 12, 2013, Crystal Perry and

Kristofer Williams were murdered in their home in Falmouth by

persons unknown.     At approximately 1:30 A.M. on June 12, police

found their bodies in the kitchen and living room, surrounded by

blood.    The front door had been forced open and "[t]he house

. . . had been . . . ransacked," but jewelry and a wallet

remained in the house.      The defendant was a neighbor of the

victims and suffered from a heroin addiction.

     The defendant had been working as a mason's assistant for

approximately two and one-half years.      His boss paid him in cash

at the end of each day, and the defendant "never had cash the

next day."    When the defendant's boss picked up the defendant

the morning of June 12, the defendant showed him cash and said,

"Let's go get this," meaning that they should purchase heroin

together.    It was more money than the defendant had been paid

the day before.    The defendant and his boss then purchased $200


     1
       The defendant also challenges his sentence, which we
discuss infra.
                                                                       3


to $300 of heroin.    The defendant's boss also noticed that the

defendant was wearing rubber boots that day, as opposed to the

work boots he had worn every other day.

     The next day, and again four days after that, State police

troopers interviewed the defendant.      The defendant stated that

he went into the victims' home "looking for drugs" and noticed

that the house had been "ransacked."      He found $100 on the floor

near the entrance, and he took it.      After going through Perry's

wallet and checking at least some of both victims' pockets,2 he

went into a bedroom.      There, the defendant found another $140 on

the bed.   The defendant took this money as well and spent all of

the money on drugs.      The defendant adamantly denied taking any

jewelry.

     2.    Discussion.   a.   Corroboration of confession.   The

defendant challenges his conviction as impermissibly based on an

uncorroborated confession.      He argues that the Commonwealth

presented no evidence, apart from the defendant's statements,

that anything was taken from the home.      Historically,

Massachusetts permitted a conviction to be based solely on an

extrajudicial confession.      See, e.g., Commonwealth v. Killion,

194 Mass. 153, 155 (1907) ("[C]onfessions and admissions when

freely and voluntarily made have ever been regarded as amongst

     2
       The defendant was inconsistent regarding whether he had
searched only one or both of Williams's pockets. Police later
found more than $300 in one of Williams's pockets.
                                                                    4


the most effectual proofs that can be furnished").   In 1984,

however, the Supreme Judicial Court held that "an uncorroborated

confession is insufficient to prove guilt."   Commonwealth v.

Forde, 392 Mass. 453, 457 (1984).   The court adopted this rule

to "preclude[] the possibility of conviction of crime based

solely on statements made by a person suffering a mental or

emotional disturbance or some other aberration."   Ibid.

    The corroboration required, though important, is "quite

minimal."   Commonwealth v. Villalta-Duarte, 55 Mass. App. Ct.

821, 826 (2002), quoting from Commonwealth v. Sineiro, 432 Mass.

735, 745 n.11 (2000).    The requirement is "merely that 'there be

some evidence, besides the confession, that the criminal act was

committed by someone, that is that the crime was real and not

imaginary.'"    Commonwealth v. Rodriguez, 76 Mass. App. Ct. 59,

63 (2009), quoting from Villalta-Duarte, supra at 825.     As the

Supreme Judicial Court observed, the absence of corroboration

should be rare as "[p]olice interrogations are not conducted at

random, but often focus on persons who are already suspects,

i.e., persons as to whom there is at least some basis for

suspicion."    Commonwealth v. DiGiambattista, 442 Mass. 423, 432

(2004).

    The corroboration requirement has been applied twice before

to larcenies.   In Commonwealth v. Landenburg, 41 Mass. App. Ct.

23, 25 (1996), we found insufficient corroboration of a
                                                                   5


defendant's confession to stealing merchandise where the only

other evidence was the existence of the items described in the

confession in the apartment of the defendant's girl friend.     The

fact that the presence of the items matched the defendant's

statements that the stolen items were in the girl friend's

apartment "corroborate[d] nothing beyond the fact of the

defendant's familiarity with that residence and its contents."

Ibid.

     The Supreme Judicial Court, by contrast, found sufficient

corroboration in Commonwealth v. Jackson, 428 Mass. 455 (1998).

There, the defendant appeared in a friend's apartment "carrying

a shotgun, money, cocaine, and jewelry" and told the friend that

he (the defendant) had just committed a robbery.   Id. at 457.

The court found that the corroboration requirement "was

satisfied by the testimony of [the friend], who said he saw

tangible evidence of the robbery in the form of cocaine and

cash," in light of the evidence that the defendant broke into

the victim's apartment armed with a shotgun.   Id. at 467.

Because of this evidence, the absence of any other evidence that

items were taken from the victim did not defeat the sufficiency

of the evidence.   Ibid.

     Applying these teachings to the present case, we conclude

that the defendant's confession was sufficiently corroborated.

The house had been "ransacked," with "items strewn about the
                                                                     6


house," a strong indication that items had been stolen.    Cf.

DiGiambattista, 442 Mass. at 431 (Corroboration need not show

that the "defendant was the actual perpetrator of the crime");

Commonwealth v. Weaver, 474 Mass. 787, 791 (2016) (same).      The

defendant's description of the condition of the house and of the

presence of a wallet and jewelry all matched police observations

and were the sort of details that would not be known without

familiarity with the crime scene.   See Commonwealth v. Hubbard,

69 Mass. App. Ct. 232, 236 (2007) (Confession to unlawful

possession of a firearm was sufficiently corroborated by

evidence that the defendant was found outside the home where the

firearm was found, that the firearm matched the defendant's

description in his confession, and that shell casings confirmed

the defendant's confession to firing the firearm).   The

defendant's possession of cash approximately matching the amount

he stated he had stolen, where he had never in more than two

years had cash the morning after being paid, is akin to the

possession of robbery proceeds in Jackson.   The use of that

money to purchase heroin corroborated the defendant's stated

reason for the theft as well as his report of where the money

went.   The defendant's use of different boots for the first time

corroborated at least circumstantially the possibility that he

had been walking through a bloody crime scene the previous

evening.   In sum, this corroboration was sufficient to convince
                                                                      7


a trier of fact that "the crime was real and not imaginary,"

Rodriguez, 76 Mass. App. Ct. at 63, quoting from Villalta-

Duarte, 55 Mass. App. Ct. at 825, and that the conviction was

not "based solely on statements made by a person suffering a

mental or emotional disturbance or some other aberration."

Forde, 392 Mass. at 457.

    b.   Stealing in a building.     The defendant further

challenges the sufficiency of the evidence under Commonwealth v.

Latimore, 378 Mass. 671, 677-678 (1979).     "In reviewing this

claim, we consider the evidence introduced at trial in the light

most favorable to the Commonwealth, and determine whether a

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt."     Commonwealth v.

Oberle, 476 Mass. 539, 547 (2017).     "The inferences that support

a conviction 'need only be reasonable and possible; [they] need

not be necessary or inescapable.'"     Commonwealth v. Waller, 90

Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v.

Woods, 466 Mass. 707, 713 (2014).

    A larceny may become a felony punishable by up to five

years in State prison, instead of a misdemeanor, by reason of

the amount stolen, G. L. c. 266, § 30(1); by stealing from a

person, G. L. c. 266, § 25(b); or by stealing in a building,

G. L. c. 266, § 20.   In the two latter situations, the amount

stolen is immaterial.   See Commonwealth v. Thomson, 14 Mass.
                                                                    8


App. Ct. 902, 902 (1982); Commonwealth v. Graham, 62 Mass. App.

Ct. 642, 647 (2004).   For the crime of stealing in a building,

the statutory text of G. L. c. 266, § 20, requires merely that

one "steals in a building, ship, vessel or railroad car."

     The additional punishment for stealing in a building,

regardless of the amount stolen, has been in effect since 1804,

see St. 1804, c. 143, § 6, and the statute has existed in more

or less its current form since 1851.   See St. 1851, c. 156, § 4.

The Supreme Judicial Court, relying on the similar crime created

in England in 1713, has construed the crime of stealing in a

building to include two additional requirements that do not

appear explicitly in the statutory text.   See Commonwealth v.

Hartnett, 3 Gray 450, 451-453 (1855), citing St. 12 Anne, c. 7.

First, the building in question must not belong to the

defendant.   See Hartnett, 3 Gray at 452 (defendant not guilty of

stealing in a building where her husband owned building).

Second, relevant here, "the property stolen must be such as is

usually under the protection of the house, deposited there for

safe custody, and not things immediately under the eye or

personal care of some one who happens to be in the house."

Ibid.   This is not an onerous requirement; "[a]ll that is

required is that the property be under the protection of the

building 'rather than under the protection of the person or

persons who are present.'"   Commonwealth v. Willard, 53 Mass.
                                                                    9


App. Ct. 650, 655 (2002), quoting from Commonwealth v. Barklow,

52 Mass. App. Ct. 765, 767 (2001).

    In applying that second requirement, the case law

distinguishes between property under the personal protection of

a person present in the building and property in the building,

but not under such personal protection.    Thus, property under

the personal watch of a clerk or a storekeeper is not the proper

object of stealing from a building.    See Robinson v. Van Auken,

190 Mass. 161, 167 (1906) (property under direct control of

owner); Commonwealth v. Sollivan, 40 Mass. App. Ct. 284, 286-287

(1996) (shoplifted property under protection of store

employees).   See also Commonwealth v. Cruz, 430 Mass. 182, 190

(1999) ("Sollivan stands for the proposition that the

Legislature never intended that shoplifting . . . be prosecuted

under G. L. c. 266, § 20").   Even if a clerk's attention is

momentarily diverted, the fact that the property is under the

clerk's watch would defeat a prosecution for stealing in a

building.   See Commonwealth v. Lester, 129 Mass. 101, 103

(1880).

    Where, however, the property is in the building but not

under the personal protection of a person therein, it may be the

object of stealing in a building.    To take an obvious example,

property within a locked, closed store is a proper object of

stealing in a building.   Barklow, 52 Mass. App. Ct. at 766-767.
                                                                    10


Similarly, property within an empty house is a proper object of

stealing in a building, regardless of whether the doors have

been forced open prior to, or during, the theft.   Commonwealth

v. Latney, 44 Mass. App. Ct. 423, 423-424 & n.1 (1998).   To take

a less obvious example, property in a house where the occupants

are sleeping may be the object of stealing in a building.     See

Commonwealth v. Ronchetti, 333 Mass. 78, 79, 82 (1955); Willard,

53 Mass. App. Ct. at 655; Graham, 62 Mass. App. Ct. at 644, 647.

Even a key in the pocket of clothes placed on a chair may be the

object of stealing in a building once the owner falls asleep.

Commonwealth v. Smith, 111 Mass. 429, 429-430 (1873).

Similarly, the mere presence of a watchman would not negate the

crime of stealing in a building if the property stolen "was not

immediately or in any special sense under the care or eye of"

the watchman.   Commonwealth v. Nott, 135 Mass. 269, 272 (1883).

The key question in each case is whether the property was under

the personal protection of some person inside the building;

otherwise, the property was under the protection of the

building.

    Here, the money stolen was not under the personal

protection of any person inside the house.   At least some of the

money was taken from the bedroom; the victims were in the living

room and kitchen.   The money was on the floor and the bed, not

under the watch of any person.   Finally, of course, at the time
                                                                       11


the money was stolen, no living person was in the home, and thus

the property was "under the protection of the building 'rather

than under the protection of the person or persons who are

present.'"      Willard, 53 Mass. App. Ct. at 655, quoting from

Barklow, 52 Mass. App. Ct. at 767.       The evidence was sufficient

to prove the crime of stealing in a building.       Cf. Commonwealth

v. Haggerty, 400 Mass. 437, 438-439 & n.3 (1987) (property

stolen after murder prosecuted as stealing in a building;

stealing conviction not discussed on appeal); Commonwealth v.

Leitzsey, 421 Mass. 694, 695-696 & n.1 (1996) (same);

Commonwealth v. Bennett, 424 Mass. 64, 64-67 (1997) (same).

       c.    Victim impact statement.   At sentencing, Perry's sister

and daughter-in-law provided brief victim impact statements,

both of which decried the defendant's failure to telephone the

police upon discovering the murders.3      The judge then sentenced

the defendant to State prison for two years to two years and one

day.       The defendant argues that these statements were deeply

prejudicial and require resentencing.       As the defendant did not

object, the claim is waived and we consider only whether, if we

find error, there was a substantial risk of a miscarriage of

justice.      See Commonwealth v. Keon K., 70 Mass. App. Ct. 568,

573 (2007).      There was no error.


       3
       Both family members stated that the defendant was friends
with Perry and was a frequent visitor to the property.
                                                                    12


    There is little to be gained, and much to be lost, from

parsimony in hearing victim impact statements.   Accordingly, "no

authority or precedent [exists] for the judge to subject [the]

recitation [of impact statements] to prior redaction."

Commonwealth v. Burdick, 45 Mass. App. Ct. 904, 905 (1998).     A

sentencing judge may consider victim impact statements, see,

e.g., Commonwealth v. Medina, 64 Mass. App. Ct. 708, 722 n.22

(2005), and is well able to disregard irrelevant or emotional

content.   In the absence of any indication that the judge based

the sentence on any improper factor, we will not disturb it.

                                    Judgment affirmed.
