Opinion
11-P-608
05-02-2012
COMMONWEALTH v. SHANNON BRAY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her conviction by a Superior Court jury of joint venture armed robbery in violation of G. L. c. 265, § 17. We affirm.
Discussion. I. Jury instructions. The defendant claims that the trial judge erred in giving the instructions set forth in Commonwealth v. Zanetti, 454 Mass. 449 (2009). We disagree.
In Zanetti, the court ruled that '[w]hen there is evidence that more than one person may have participated in the commission of the crime, judges are to instruct the jury that the defendant is guilty if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.' Id. at 467-468. As such, 'the Commonwealth is not required to prove exactly how a joint venturer participated in the [crime] or which of the [coventurers] did the actual [crime].' Commonwealth v. Deane, 458 Mass. 43, 50-51 (2010). The trial judge, therefore, need not provide the jury with specialized jury slips that distinguish between joint venturer and principal actor but may, instead, provide the jury with a general verdict slip. See Zanetti, supra at 468.
Here, the judge complied fully with the requirements of Zanetti. The judge's instructions were nearly verbatim the instructions endorsed by the court in Zanetti, supra at 470. Zanetti expressly stated that there is no need to 'examine the sufficiency of the evidence separately as to principal and joint venture liability.' Id. at 468. There was no error here in the jury instructions.
II. Sufficiency of evidence. The defendant argues that the judge erred in denying her motions for a required finding of not guilty, because the evidence was insufficient to find her to be a joint venturer in the commission of the robbery. We disagree.
When reviewing the sufficiency of the evidence in relation to a denial of a motion for a required finding of not guilty, the 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Furthermore, we bear in mind that guilt may be established by circumstantial evidence and that 'the inferences a jury may draw from the evidence need only be reasonable and possible and need not be necessary or inescapable.' Commonwealth v. Linton, 456 Mass. 534, 544 (2010).
In relation to the review of joint venture cases for sufficiency of evidence, the defendant claims that there are two approaches as expressed in Commonwealth v. Longo, 402 Mass. 482 (1988), and Commonwealth v. Raposo, 413 Mass. 182 (1992). While these cases did exemplify two theories of how to evaluate the sufficiency of the evidence in joint venture cases, they have since been supplanted by Zanetti. See Zanetti, 454 Mass. at 468. We now, on appeal, 'examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime.' Ibid. Furthermore, we need not 'examine the sufficiency of the evidence separately as to principal and joint venture liability.' Ibid.
Viewing the evidence under the familiar standard, a jury could have found the following: (1) the defendant had demonstrated hostility toward the victim on his first visit to Lynn, and, on the second visit, had relieved him of his cell phone and not returned it; (2) the victim was the defendant's guest in Lynn during the second visit; (3) the defendant drove her friend, Diamond Constant, her young son, and the victim to a remote park that night, and was observed by the victim pointing Constant toward a particular area; (4) Constant then told the victim to walk with him in that direction, and on the way back, the robbery occurred; (5) Constant was joined by the boyfriend of the defendant's sister, Alexander Phillips, who had not traveled in the car with the victim, Constant, and the defendant, but who showed up and confronted the victim, then grabbed him and told him to empty his pockets; (6) during the robbery, Constant walked over to the car and then returned with a gun, which the victim saw underneath Constant's jacket when Phillips told the victim to 'look down'; (7) the victim handed Constant his wallet and keys; (8) the defendant and her son remained in the car during Constant's and the victim's walk; (9) the defendant stated that 'they were only fooling around' and that 'this is what you get when you fuck around with people from Lynn'; (10) Constant and the defendant went to Constant's house both before and after the robbery; and (11) a gun matching the description given by the victim was later found in Constant's bedroom.
In sum -- where the evidence showed that the defendant accompanied Constant into a residence (while leaving the victim in the car), before driving them to the park, and later drove Constant to his home and accompanied him inside, where Constant disposed of the gun -- a rational jury could have inferred that the defendant knew that her coventurer was armed. See Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 458 (1989). They could have also inferred that while at Constant's home, the defendant arranged for Phillips to meet them at the park. See Commonwealth v. Netto, 438 Mass. 686, 703 (2003). From these reasonable inferences as well as the defendant's statements to the victim, evincing her knowledge and complicity, we conclude that the evidence was sufficient to conclude that the defendant knowingly participated in the commission of the robbery of the victim with the intent of depriving him of his money. We discern no error in the judge's denials of the motions for a required finding of not guilty.
Judgment affirmed.
By the Court (Katzmann, Rubin & Fecteau, JJ.),