subject: Massachusetts Larceny Charge Insufficient Evidence Surveillance Videotape Lawyers Attorneys [print this page] COMMONWEALTH vs. TONY AUDET
APPEALS COURT OF MASSACHUSETTS
July 6, 2010, Entered
Represented by new counsel on appeal, the defendant claims that there was insufficient evidence to sustain his conviction; the judge committed reversible error by permitting two prosecution witnesses to testify that the person in the surveillance videotape was the defendant; and the judge failed to give adequate identification instructions. The defendant also claimed that his trial counsel was constitutionally inadequate.
Issues:
Whether the evidence was insufficient to convict the defendant of larceny of property valued over $ 250?
Whether the judge committed error by allowing the two Commonwealth witnesses to testify that the person in the surveillance videotape was the defendant?
Whether the judge committed reversible error by failing to give adequate identification instructions and by making comments in his instructions that suggested the defendant was guilty?
Observation and Holding:
The evidence and the reasonable inferences drawn therefrom were sufficient to warrant a finding that the defendant was guilty of larceny. The two Commonwealth witnesses, Betti and Officer Derby, who were acquainted with the defendant, identified him as being the person who was seen on the surveillance videotape stealing the mixers. Further, the surveillance videotape was played to the jury and the jurors had the opportunity to observe the defendant in the courtroom. Taken in the light most favorable to the Commonwealth, the testimony and the surveillance videotape presented sufficient evidence that the defendant had committed larceny from Macy's of property over the value of $ 250.
Because both witnesses testified that they knew the defendant from prior occasions unrelated to the surveillance videotape,their testimony is admissible pursuant to Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 325-327, 729 N.E.2d 642 (2000). Further, Officer Derby testified that when he saw the defendant a few days after he had viewed the surveillance videotape, the defendant was wearing the same clothes that he was seen wearing on the videotape. Therefore, for the reasons stated in the Commonwealth's brief, in particular pages nine through thirteen, we hold there was no error.
Viewing the charge as a whole, the judge adequately instructed the jury on identification, and did not make any improper comments on the defendant's guilt. We have reviewed the instructions and hold that there was no error
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
