After sending two notes to the judge over the course of nearly six hours of deliberation saying they could not agree on a verdict, members of a Dukes County Superior Court jury Tuesday convicted Stanley Johnson of burglary and larceny for the theft of a safe containing $85,000 from an elderly man’s house.
Associate Justice C.J. Moriarty sentenced Mr. Johnson to a state prison term of five to seven years, and ordered him to make restitution for the entire amount of the stolen money, less any amount already returned.
Police arrested Mr. Johnson, 52, of Oak Bluffs, along with an accomplice, Daniel BenDavid, 48, of Oak Bluffs, in April 2011. The two men are being tried separately.
“Breaking into somebody’s house is a very serious crime,” Judge Moriarty said, speaking directly to Mr. Johnson before sentencing. He noted that the stolen money was the life savings of the victim of the crime, a factor that weighed on his sentencing decision.
“It’s a very difficult concept to swallow that somebody could be so unconcerned about a fellow human being. I know the police gave Mr. Johnson every opportunity to make this right. He took the opportunity to dupe them and decided to run the risk. It’s a gamble that he took that is not going to pay off.”
In court Tuesday, Judge Moriarty set restitution of the entire $85,000, minus any money returned, as a condition of probation for Mr. Johnson. He said he intended to set the same conditions for Mr. BenDavid, if he accepts a plea agreement in his specific case.
Mr. BenDavid has returned $31,500 in cash, according to police. The court has custody of the $5,810 entered into evidence in Mr. Johnson’s trial. That leaves $47,690 still missing from the safe robbery.
Judge Moriarty said if Mr. Johnson does return the money, he would listen to a motion to revise or revoke his sentence of five to seven years in prison.
According to several sources familiar with the pre-trial proceedings, before the trial the prosecutor offered Mr. Johnson the same plea agreement given to Mr. BenDavid — restitution of the money, four years of probation, but no jail time — if he returned the money.
Cape and Island district attorney Laura Marshard, who prosecuted the case, declined comment on the verdict or the sentence, because the case could still be appealed.
Defense attorney J. Drew Segadelli said he was frustrated with the jury’s verdict. He said on Monday the jury initially indicated to the judge that they were deadlocked. Later, two jurors sent notes to the judge asking to be taken off the jury because of outside responsibilities.
“I truly do not believe they had enough to render a guilty verdict beyond a reasonable doubt, in light of the strongest evidence coming from a witness with a long criminal record, having been given a deal by the Commonwealth, having significant other incentives to testify,” Mr. Segadelli said. “[Jurors] seem to have been somewhat conscientious, although they reported they were deadlocked, then they reported they were all anxious to leave. That causes me some concern. Then shortly thereafter, they render a verdict.”
The victim of the crime, a 77-year-old Oak Bluffs man, was in the courtroom for the sentencing, but he declined to make a victim impact statement to the judge. The Cape and Island District Attorney’s victim witness advocate requested that the Times not use his name.
Mr. Johnson’s wife and one of his adult children were also in the courtroom for the verdict.
The case the Commonwealth presented rested in large part on the testimony of Mr. BenDavid. He testified under oath that he and Mr. Johnson carried out the burglary together.
He described in detail for the court how they entered the home wearing black clothes and face masks, took the safe, and later dumped it in a marsh. They split the proceeds of the robbery, and separately concealed the money off Island, according to the testimony.
Mr. BenDavid, who has a lengthy criminal record including drug charges, has reached a preliminary plea agreement with prosecutors that calls for four years of probation, and repayment of half of the money stolen. He agreed to testify against Mr. Johnson in this trial.
Mr. Segadelli hammered at the credibility of Mr. BenDavid’s testimony in his closing argument Monday.
“Is it competent, is it credible, is it reliable?” Mr. Segadelli asked the jury. “Because Daniel BenDavid said so? Can you rest comfortably with that thought? Daniel BenDavid is a serial perjurer. He is a stranger to the truth. Is that enough for you? Don’t reach a verdict because Daniel BenDavid said so.”
In her opening statement, and again in her closing arguments, Ms. Marshard acknowledged that Mr. BenDavid has lied before, but she asked the jury to consider corroborating evidence.
“We, the Commonwealth, the district attorney, the police, don’t get to choose our witnesses,” Ms. Marshard said. “It’s a puzzle. Before you throw the pieces away, watch how I put them together.”
Displaying $5,800 in crisp new bills seized from Mr. Johnson at the time of his arrest, and unfolding four new shirts she said were purchased at Walmart, Ms. Marshard asked jurors to consider all of the evidence.
“Common sense dictates that unemployed people are not driving around on shopping sprees with $5,000 in cash,” she said.
The jury deliberated for more than four hours Monday. They returned to the courtroom on Tuesday where Judge Moriarty asked them to reexamine and reassess their individual decisions, listen to the opinions of other jurors, and try again to reach a verdict.
After another hour in the jury room, the jurors returned to the courtroom and announced their decision. They pronounced Mr. Johnson guilty on both counts of the indictment, unarmed robbery to commit a felony in the night time, and larceny over $250.
Mr. Johnson confessed to his role in the safe heist shortly after his arrest when questioned by Oak Bluffs police. He told police he took his part of the cash to New York and left it with a relative. Mr. Johnson agreed to return with the money at noon on Friday, April 8. But he did not return, and a warrant was issued for his arrest.
The jury, however, was not allowed to hear the details of that confession, which included his reference to a trip to New York.
Prior to the trial, Judge Moriarty ruled in response to a motion by Mr. Segadelli that the confession was inadmissible as evidence because at one point in the police interrogation, Mr. Johnson wondered aloud about whether he needed a lawyer.
According to police, he was offered the chance to stop the interrogation and get legal advice, but he agreed to continue the questioning without an attorney.
Under the rules of evidence, prosecutors were also not allowed to introduce Mr. Johnson’s previous criminal record, which included convictions on cocaine charges, and violation of probation.
Mr. BenDavid’s case is scheduled for disposition on October 22. In pre-trial hearings earlier this year, Judge Moriarty warned in stern terms that he is not bound by the agreement reached between the prosecutor and Mr. BenDavid’s attorney for four years of probation and restitution of half of the stolen $85,000.
Judge Moriarty made it clear he could reject the plea agreement.