Opinion
15-P-165
02-22-2016
COMMONWEALTH v. ROCHELLE GRAHAM.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from a Boston Municipal Court judge's dismissal, without prejudice, of a criminal complaint for lack of probable cause. The complaint charged the defendant, Rochelle Graham, with larceny from a person in violation of G. L. c. 266, § 25. We affirm.
The complaint originally charged the defendant with armed robbery, G. L. c. 265, § 17, but the charge was reduced at the Commonwealth's request.
Allegations in the complaint. The facts underlying the charge against the defendant, taken from the police report attached to the application for the complaint, are as follows. On a Thursday night in February, 2014, a black man with long hair, wearing a winter hat and baggy clothes, entered a Dunkin' Donuts store on Massachusetts Avenue in Boston. He walked up to the counter and grabbed the cashier's arm, demanding money. He then moved to a second cash register and, again, demanded money. He was armed with a black handgun and yelled at the employees and the patrons. He then ran out of the store, got into the driver's seat of a blue Toyota Corolla that was double-parked in front of the store, and drove away.
Boston police Sergeant Martin Kraft, who was performing a paid detail at the nearby Berklee College of Music, responded to a call of "armed robbery in progress." He spotted the suspect's vehicle on Massachusetts Avenue. It was occupied by a black man and a female passenger. With Kraft following in his own car, the driver of the blue Toyota threw a fake gun, wig, hat, sweater, and blue bag out the window. Other officers joined in the pursuit, eventually stopping the car and arresting the driver and passenger (later identified as the defendant). Forty-seven dollars were recovered from the glove compartment.
Discussion. To obtain a criminal complaint, the Commonwealth need only present sufficient evidence to establish the identity of the defendant and probable cause that the defendant committed the crime charged. See Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015); Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013). When a defendant files a motion to dismiss a criminal complaint for lack of probable cause under Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002), the motion "is decided from the four corners of the complaint application, without evidentiary hearing." Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111 (2013), quoting from Bell, supra at 62. The probable cause standard "is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding." Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). See Bell, supra at 63. On appeal, we review the sufficiency of the complaint de novo. Ilya I., supra.
The Commonwealth proceeded against the defendant under a joint venture theory of liability. Thus, the complaint must establish probable cause that the defendant "knowingly participated in the commission of the crime charged . . . with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009).
We agree with the Commonwealth that the police report permits a reasonable inference that the defendant was already a passenger in the car when the driver double-parked and entered the Dunkin' Donuts, even though no witnesses placed her in the car until after the chase began. Moreover, it can reasonably be inferred that the driver was wearing the wig and hat before he got out of the car, and that the defendant knew his intentions. Although the police report does not so specify, we also assume that the defendant's vantage point from the car double-parked in front of the store enabled her to act as a lookout.
However, the facts alleged in the complaint do not demonstrate probable cause "that the defendant intentionally participated in some fashion in committing that particular crime and had or shared the intent required to commit the crime." Id. at 470 (Appendix). "There is a long line of cases holding that mere presence at the scene of the commission of the wrongful act, together with failure to take affirmative steps to prevent it, does not render a person liable as principal." Commonwealth v. Murphy, 1 Mass. App. Ct. 71, 76 (1973). In Murphy, for example, a defendant's presence in the passenger seat of a car parked near a crime scene could not support his conviction for arson as a joint venturer with the driver, who was seen setting fire to an adjacent house just before driving away. Id. at 72, 76-77. Nor, in Commonwealth v. Chinn, 6 Mass. App. Ct. 714, 714-718 (1978), could a defendant's presence in the back seat of a car sustain her conviction in a joint enterprise with the driver, who was apprehended at the drive-in window of a bank as he attempted to cash a forged check -- even though two forged checks made out to the defendant were recovered from the car.
We recognize that "[o]ne's presence at the scene of a crime normally indicates an ability to render 'aid and encouragement, as a lookout to give warning, . . . or as an ally in making escape or in meeting any eventuality.'" Commonwealth v. Drew, 4 Mass. App. Ct. 30, 31 (1976), quoting from Commonwealth v. Conroy, 333 Mass. 751, 755 (1956). Still, some evidence besides mere presence is needed. The defendant in Drew rode to the scene of three robberies, remained in the car parked at a vantage point that allowed her to act as a lookout, "knew beforehand of their purpose in entering each store," and was present for the division of the proceeds. Id. at 30-31. In Commonwealth v. Pope, 15 Mass. App. Ct. 505, 509-511 (1983), while the principal was breaking into the back of a house, the defendant stood on the sidewalk in front, next to the open passenger door of the principal's parked car, facing away from the house.
Joint venture liability can be imposed "when the conduct 'take[s] the form of agreeing to stand by at, or near, the scene of the crime to act as a lookout, or to provide aid or assistance in committing the crime, or in escaping, if such help becomes necessary' (emphasis added)." Commonwealth v. Simpkins, 470 Mass. 458, 462 (2015), quoting from Zanetti, supra. The allegations against the defendant here do not establish probable cause that she agreed to participate in the robbery. "Presence alone does not establish a defendant's knowing participation in the crime, even if a person knew about the intended crime in advance and took no steps to prevent it." Zanetti, supra. The judge did not err in dismissing the complaint without prejudice.
Order allowing motion to dismiss complaint affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 22, 2016.