Breaking and Entering in Massachusetts

Breaking and entering is a crime under G. L. c. 266, § 18. The law defines breaking and entering as the act of entering a dwelling at night or a building, ship, or motor vehicle during the day with the intent to commit a felony. It can lead to fines as well as substantial terms of incarceration in state prison. Punishments are increased for those who break and enter while armed.

In Commonwealth v. Bethune, a defendant appealed from convictions for breaking and entering with intent to commit a felony and stealing in a building. The convictions arose from two different events. The first involved a breaking and entering when the police saw him walking with a jewelry box that they later learned was stolen. The second involved a breaking and entering when the police saw the defendant flee from a house with the burglar alarm ringing.

The second incident arose when the police officer was parked across the street for other reasons and heard a voice alarm. He came up to the house where the alarm was sounding, and he saw someone wearing a tank top leave. The officer yelled for the defendant to stop to no avail, and he and another officer ran after the man. Eventually the first officer had to stop, but the second officer continued running after the man. A third officer joined in and saw someone running who matched the description he’d been given, and he saw him hide behind a trash compactor. The original two officers came and identified the defendant as the person who had fled 3-4 minutes before.

On appeal, the defendant argued that the judge should have given what is called a Rodriguez instruction of his own volition. He had not objected to the lack of instruction at trial. A Rodriguez instruction is typically given when a non-police bystander makes an identification of the defendant to the police, out of court. The appellate court explained that a Rodriguez instruction asks the jury to consider factors that could affect whether or not an eyewitness has a positive identification of the defendant and presents questions the jury should ask themselves.

The factors under Rodriguez include the witness’ opportunity to observe the offender, the amount of time between the crime and the identification, the witness’ previous familiarity with the offender, the circumstances around the identification procedure, whether the defendant was identified through a lineup or through a photographic array, whether the witness had made mistakes in identification prior to identifying the defendant, and the witness’s credibility.

The appellate court found that in this case, both police officers testified they saw the defendant in the victim’s house and ran after him. Although the officer wasn’t an eyewitness, he testified he apprehended the defendant when he was running, sweating, and breathing heavily. The defendant found that an eyewitness officer was chasing him and corroborated the officer’s testimony regarding the chase.

The defendant had argued in closing his case that he was a victim of racial profiling. As such, he believed that a Rodriguez instruction was necessary. However, he hadn’t presented evidence of this or tried to probe this issue on cross-examination. The court found that the case against the defendant was strong, and thus leaving out a Rodriguez instruction didn’t create a substantial risk that there would be a miscarriage of justice.

The defendant also argued the charges should have been severed under Rule 9(a)(3) of the Massachusetts Rules of Criminal Procedure. The appellate court explained the offenses were related and could be joined under the rule because they were based on the same criminal episode or arose out of a single plan. In this case, the crimes had happened 12 days apart. Although there were two episodes, the defendant had used the same method of forcing open the door for both, and he hadn’t shown the offenses were not related. The judgments were affirmed.

If you are charged in Massachusetts with a theft crime, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015
Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014

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