COMMONWEALTH vs. DONALD P. GARDNER, JR.

DUFFLY, J. This is the Commonwealth's appeal from a decision of a judge of the Superior Court dismissing an indictment brought against the defendant in Plymouth County for unarmed robbery (of a "pocketbook with contents") from a person sixty years or older, G. L. c. 265, § 19(a), [Note 1] on double jeopardy grounds: the defendant had, in an earlier proceeding in the Quincy Division of the District Court Department in Norfolk County, admitted sufficient facts to warrant a finding of guilty

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on, inter alia, a charge of receiving stolen property. [Note 2] We agree that the subsequent prosecution is barred and affirm the dismissal, although on a ground different from that articulated by the motion judge.

Facts. We briefly recite the basic facts that underlie the issue on appeal. On the afternoon of December 11, 2001, as seventy year old Margaret Cronin stood near her automobile in the parking lot of a shopping center in Norwell, a man approached, knocked Cronin to the ground, took her purse, and fled. Witnesses saw the assailant drive away in a white Ford Taurus station wagon. Later that day in Weymouth, the police observed a white Ford Taurus station wagon being driven erratically at a high rate of speed; when the driver refused to pull over, the police gave chase and eventually caught up with the vehicle. The defendant, who was the driver of the car, was arrested. At the time of his arrest, Cronin's pocketbook and some of its contents were in the defendant's possession. The discovery of these items gave rise to the receiving stolen property charge, while the unarmed robbery indictment was based on the initial purse snatching.

Discussion. The issue presented -- whether the defendant may be prosecuted for stealing the pocketbook with contents when he had previously been convicted of receiving or possession of the pocketbook and contents -- may be resolved without resort to principles of double jeopardy, but on the basis that convictions of both stealing and receiving stolen property are inconsistent as matter of law. This approach is also consonant with accepted principles of judicial restraint, pursuant to which we will not reach a constitutional issue if an alternative, nonconstitutional basis for our disposition exists. See M.C. v. Commissioner of Correction, 399 Mass. 909, 912 (1987).

Massachusetts courts have, for well over a century, adhered to the principle that a defendant may not be tried and punished for both stealing and receiving the same property because convictions for stealing and receiving the same property would

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constitute legally inconsistent verdicts. See, e.g., Commonwealth v. Haskins, 128 Mass. 60, 61-62 (1880) (convictions on separate counts of larceny and receiving stolen goods constitute a verdict that is "inconsistent with itself"); Commonwealth v. Nascimento, 421 Mass. 677, 683 (1996) (inconsistent in law for defendant to be convicted both of stealing property and of receiving the same property); Commonwealth v. Hinckley, 422 Mass. 261, 262 n.1 (1996) (convictions on both indictments would have been inconsistent); Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 340-341 (1999) (convictions of receiving stolen property and larceny of the same property constitute "[v]erdicts that are impossible at law"); Commonwealth v. McCaffery, 49 Mass. App. Ct. 713, 718 (2000) (convictions of larceny and receiving stolen property inconsistent). [Note 3]

This principle appears to be grounded in the notion that the crime of receiving contemplates a transfer to the defendant from some other person. See, e.g., Commonwealth v. Haskins, supra at 61 ("in law the guilty receiver of stolen goods cannot himself be the thief; nor can the thief be guilty of a crime of receiving stolen goods which he himself had stolen"). See also Fuller v. United States, 407 F.2d 1199, 1223 (D.C. Cir. 1968), cert. denied, 393 U.S. 1120 (1969) ("A familiar example of inconsistency is that of the common law offenses of larceny and receiving stolen goods. At common law a defendant could not be convicted at the same time for both larceny and receiving,

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because an element of the crime of receiving is that the goods be 'received' from another person after they are stolen. A thief cannot receive from himself").

In none of the foregoing cases was the defendant subjected to successive prosecutions, but it is implicit that the doctrine of judicial estoppel precludes further prosecution of the defendant in the Superior Court on the armed robbery indictment. [Note 4] Judicial estoppel, which applies equally to civil and criminal proceedings, see Commonwealth v. Prophete, 443 Mass. 548, 555 n.10 (2005), "is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding." Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 639-640 (2005), quoting from Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184 (1998). The doctrine is particularly applicable to cases, such as the one presented here, where permitting a subsequent proceeding to go forward would produce "inconsistent determinations . . . endangering the integrity of the judicial process." Otis v. Arbella Mut. Ins. Co., supra at 643, quoting from Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004). [Note 5]

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For the Commonwealth to assert that a defendant is the receiver of stolen property in one proceeding and the thief of the same property at a later trial would, as matter of longstanding decisional law in the Commonwealth, result in prosecutions that are directly inconsistent, as it would require the Commonwealth to take the position in the second case that the defendant was the person who had stolen the property and, therefore, that he was not also the receiver of that property. [Note 6] Further, the judgment entered in the District Court proceeding reflects judicial acceptance of the Commonwealth's position that the defendant was the receiver of Margaret Cronin's stolen property. Finally, a second trial would unquestionably impose an unfair detriment on the defendant. [Note 7] See Otis v. Arbella Mut. Ins. Co., supra at 641 ("as a practical matter, where the first two components have been satisfied, this third factor [unfair detriment on the opposing party] is virtually certain to be present, as judicial acceptance of a party's position will ordinarily redound to the benefit of that party").

Conclusion. Based on the foregoing, we conclude that principles of judicial estoppel bar a prosecution of the defendant on the indictment charging him with unarmed robbery of a person sixty years or older, and we affirm the decision of the

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Superior Court judge on reconsideration that allowed the defendant's motion to dismiss.

Order allowing defendant's motion for reconsideration affirmed.