Only in the Commonwealth's opposition to the defendant's motion to dismiss did it clarify its allegation that the defendant violated G. The bill of particulars filed by the Commonwealth fairly informed the defendant of the conduct that was the basis for each of his charges, but still did not specify under which subsection of § 37C he was charged. 266, § 37C, felony fraudulent use of a credit card, has ten sub-sections and the indictments did not specify which subsection was charged. The men were later identified on security tapes from those stores. Purchases at a Target Store and a Stop & Shop supermarket in Danvers. The evidence would have warranted the jury in finding that the defendant and another man used credit cards stolen earlier in the evening from apartments in Boston to make Therefore, one must be vacated.īackground. In addition, the two remaining convictions of fraudulent use of a credit card are duplicative each of the indictments charged the defendant as receiving the same stolen credit card. We agree with the last argument and reverse the convictions for the two indictments related to that transaction. He also argues that certain bad act evidence was wrongly admitted that he was prejudiced when the judge showed bias in his treatment of a Commonwealth witness and that, as to one of the transactions using a stolen credit card, he was indicted for offenses different from those proved at trial. He argues, as to the fraudulent use of a credit card charges, that the indictments were defective that there was insufficient evidence to sustain his conviction for those offenses and that the jury were not properly instructed on them. 266, § 37C, and three charges of larceny of property having a value of less than $250, G. The defendant appeals from his conviction after a jury trial of three charges of fraudulent use of a credit card, G. Steinfield, Assistant District Attorney, for the Commonwealth. INDICTMENTS found and returned in the Superior Court Department on September 29, 2004.Ī motion to dismiss was heard by Mary-Lou Rup, J., and the cases were tried before Richard E. Īt the trial of indictments charging, inter alia, fraudulent use of a credit card, the judge did not abuse his discretion in permitting the Commonwealth to introduce evidence linking the defendant, circumstantially, to the theft of the credit cards and other items a few hours before the alleged transactions involving the cards further, error, if any, in the judge's admission of certain testimony comparing surveillance photographs alleged to depict the defendant was not prejudicial and was cumulative of other evidence finally, the judge's allegedly biased comments to a Commonwealth witness, even if better left unsaid, at least in front of the jury, did not create a risk of a miscarriage of justice. Īt the trial of indictments charging, inter alia, fraudulent use of a credit card, no prejudice to the defendant arose from an erroneous jury instruction that set forth additional elements of the crime not found in the subsection of the statute alleged to be violated. 266, § 37C(b), where each indictment alleged receipt by the defendant of the same stolen credit card. This court vacated as duplicative one of a criminal defendant's two convictions of fraudulent use of a credit card, in violation of G. In the circumstances of a criminal case in which the defendant was indicted for a particular transaction, involving fraudulent use of a stolen credit card and larceny, that the Commonwealth's evidence at trial convincingly demonstrated was committed by his codefendant, it was prejudicial to permit the Commonwealth to amend its bill of particulars during the trial and, over the defendant's objection, to allege that the defendant committed a different crime at a different time at a different part of the same store using a different person's stolen credit card therefore, this court reversed the defendant's convictions of larceny and fraudulent use of a credit card related to the transaction at issue. 266, § 37C, where the language of the indictments was clear and unambiguous, such that a fair reading of the language clearly imported an allegation that the defendant had an intent to defraud when he knowingly received a stolen credit card intending to use it, and where, in addition, the defendant was provided with a bill of particulars that, when read with the indictment, gave him specific notice of the dates, places, times, and transactions underlying the charges. Judge.Ī Superior Court judge properly denied a criminal defendant's motion to dismiss indictments charging the defendant with, inter alia, fraudulent use of a credit card, in violation of G. Misconduct, Relevancy and materiality, Identification. Practice, Criminal, Indictment, Bill of particulars, Duplicative convictions, 95 NovemJCourt Below: Superior Court, Essex Present: MCHUGH, TRAINOR, & HANLON, JJ.
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