Commonwealth v. Thompson (Lawyers Weekly No. 11-061-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-886 Appeals Court COMMONWEALTH vs. BRENISHA THOMPSON. No. 14-P-886. Middlesex. March 24, 2016. – June 3, 2016. Present: Katzmann, Rubin, & Wolohojian, JJ. Fraud. False Impersonation & Identity Fraud. Receiving Stolen Goods. Evidence, Fraud. Constitutional Law, Police power, Assistance of counsel, Harmless error. Due Process of Law, Jurisdiction over nonresident, Assistance of counsel. Jurisdiction, Nonresident. Error, Harmless. Practice, Criminal, Duplicative convictions, Lesser included offense, Assistance of counsel, Harmless error. Indictments found and returned in the Superior Court Department on January 26, 2012. The cases were tried before Sandra L. Hamlin, J. Patricia E. Muse for the defendant. Melissa Weisgold Johnsen, Assistant District Attorney (Charles A. Koech, Assistant District Attorney, with her) for the Commonwealth. KATZMANN, J. The defendant was convicted by a Superior Court jury of two counts of credit card fraud over $ 250 in violation of G. L. c. 266, § 37C(e); two counts of credit card fraud under $ 250 in violation of G. L. c. 266, § 37B(g); two counts of identity fraud in violation of G. L. c. 266, § 37E(b); one count of receiving stolen property with a value in excess of $ 250 in violation of G. L. c. 266, § 60; and one count of attempted credit card fraud in violation of G. L. c. 274, § 6. The defendant now appeals. She challenges the sufficiency of the evidence underlying the identity fraud convictions and the credit card fraud convictions relating to one of the victims. We conclude that the defendant’s identity fraud convictions are duplicative of her credit card fraud convictions, and that her conviction of receiving a stolen purse is legally inconsistent with her conviction of obtaining that purse through fraudulent use of a credit card. Accordingly, we reverse and vacate the defendant’s convictions of identity fraud and receiving stolen property. We conclude that jurisdiction on the credit card fraud charges was properly laid in Massachusetts. Although it was error to admit the contested portions of a voicemail message the defendant left for the investigating detective in which she indicates that she would not talk with him unless an attorney was present and that she was asserting her right not to speak, we conclude that the error was harmless beyond a reasonable doubt, and that the error does not require reversal of the remaining convictions in the context of the trial as a whole. […]