Commonwealth v. Henry (Lawyers Weekly No. 10-116-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11965 COMMONWEALTH vs. KIM HENRY. Essex. February 10, 2016. – August 8, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Restitution. Practice, Criminal, Probation, Restitution. Supreme Judicial Court, Superintendence of inferior courts. Complaint received and sworn to in the Salem Division of the District Court Department on November 7, 2013. A proceeding to determine restitution was had before Michael C. Lauranzano, J. The Supreme Judicial Court granted an application for direct appellate review. Rebecca Kiley, Committee for Public Counsel Services, for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Matthew R. Segal & Jessie J. Rossman, for the American Civil Liberties Union Foundation of Massachusetts, amicus curiae, submitted a brief. GANTS, C.J. This case presents two issues on appeal: first, whether a defendant’s ability to pay should be considered by a judge in deciding whether to order restitution as a condition of probation and in deciding the amount of any such restitution; and second, where goods are stolen from a retail store, whether the amount of the victim’s actual economic loss for purposes of restitution is the replacement value or the retail sales value of the stolen goods. As to the first issue, we hold that in determining whether to impose restitution and the amount of any such restitution, a judge must consider a defendant’s ability to pay, and may not impose a longer period of probation or extend the length of probation because of a defendant’s limited ability to pay restitution. As to the second issue, we hold that, in cases of retail theft, the amount of actual economic loss for purposes of restitution is the replacement value of the stolen goods unless the Commonwealth proves by a preponderance of the evidence that the stolen goods would otherwise have been sold, in which case the retail sales value is the better measure of actual loss.[1] Background. The defendant was employed as a cashier at a Walmart department store in Salem. A Walmart video camera captured the defendant “free-bagging” items; that is, with certain customers, she placed some store items into bags without scanning the items at the cash register, so that these customers received these items without paying for them. As a result, in November, 2013, […]