Commonwealth v. Liebenow (Lawyers Weekly No. 10-188-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11593 COMMONWEALTH vs. CARL B. LIEBENOW, JR. Berkshire. September 2, 2014. – November 25, 2014. Present: Gants, C.J., Cordy, Botsford, Duffly, & Lenk, JJ. Larceny. Intent. Mistake. Practice, Criminal, Affirmative defense. Complaint received and sworn to in the Pittsfield Division of the District Court Department on August 12, 2010. The case was heard by Fredric D. Rutberg, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Elizabeth Caddick for the defendant. John Bossé, Assistant District Attorney, for the Commonwealth. DUFFLY, J. The defendant, who was in the business of collecting and selling scrap metal, was charged with larceny under $ 250, G. L. c. 266, § 30 (1), in connection with his removal of two lengths of steel pipe from a construction site located on private property in Pittsfield. He was convicted of that charge following a jury-waived trial in the District Court. The conviction was affirmed by the Appeals Court in a divided opinion, see Commonwealth v. Liebenow, 84 Mass. App. Ct. 387, 398 (2013), and we granted the defendant’s petition for further appellate review. The defendant claimed as an affirmative defense at trial that he lacked the requisite specific intent to steal because he honestly, albeit mistakenly, believed that the property he removed from the site was abandoned. The judge, however, erroneously viewed the affirmative defense as requiring proof that the defendant’s belief was objectively reasonable. This misperception appears to have arisen from the conflation of two distinct concepts that have appeared over time in our jurisprudence: the concept of good faith belief, which is subjective, and the concept of reasonable belief, which is objective.[1] We take this opportunity to resolve the resulting confusion. As the dissent in the Appeals Court correctly stated: “[W]ith respect to specific intent crimes such as larceny, . . . [t]he question for the fact finder is not whether the defendant has behaved reasonably but instead whether he actually possessed the requisite mental state. “. . . “[W]here a defendant puts at issue his belief that the property he took had been abandoned, . . . the Commonwealth must prove that the defendant ‘knew that he had no right to the property taken,’ . . . not merely that a reasonable person in the defendant’s position would have known” […]