Opinion
14-P-4
06-01-2015
COMMONWEALTH v. DEBRA JEDEON.
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
Following a bench trial in the Superior Court, the defendant, Debra Jedeon, was convicted of armed robbery by means of a dangerous weapon. In this consolidated appeal, she claims that the evidence was insufficient to either indict or convict, the case should have been dismissed because the Commonwealth failed to present exculpatory evidence to the grand jury, and her counsel was ineffective. We affirm.
1. Sufficiency of the evidence. In the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the judge could have found the following facts. The defendant and Steven Randall lived in the same rooming house and were often in each other's company. On April 24, 2011, Easter Sunday, the defendant drove Randall to a Honey Farms convenience store (store) on the opposite side of Worcester from where they lived. The defendant parked on a side street around the corner from the store, facing oncoming traffic, although there were several available spots in the store's parking lot. The defendant remained in the idling car while Randall robbed the store of cash. He then ran to the waiting car. The defendant sped away, at a high rate of speed, running a stop sign. Following her arrest, the defendant told officers that she and Randall had decided to drive across town to buy some cigarettes, and that Randall had told her the store was closed when he returned to the car. The store is open twenty-four hours a day, including Easter.
Randall pleaded guilty to the charge of armed robbery by means of a dangerous weapon and testified at the defendant's trial that the defendant was unaware of his intention to rob the store and played no role in the robbery.
At trial, the Commonwealth proceeded on a theory of joint venture. To be convicted as a joint venturer, the Commonwealth must prove that the defendant "knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). "Joint venture may be proved by circumstantial evidence." Commonwealth v. Williams, 422 Mass. 111, 121 (1996).
Here, the Commonwealth met its burden. The defendant and Randall had a close relationship and selected a store that was some distance from their home, suggesting that they had a predetermined, coordinated plan. See Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 457-458 (1989). The location and manner in which the defendant parked the car suggests that she was serving as the getaway driver. See ibid.; Commonwealth v. Dosouto, 82 Mass. App. Ct. 474, 480 (2012). These facts, coupled with the idling car, quick getaway, and running of the stop sign, support the inference that the parties were trying to escape detection. Based on the circumstances of the robbery, the judge could fairly infer that the defendant knew that Randall was armed. See Commonwealth v. Netto, 438 Mass. 686, 702-703 (2003); Commonwealth v. Tracey, supra.
If their actual intent was to purchase cigarettes, they passed several open stores while they were traveling across Worcester to their destination.
2. Grand jury evidence. The defendant claims that the Commonwealth withheld certain exculpatory portions of the defendant's videotaped interview from the grand jury. The claim is not supported by the record. Moreover, the evidence presented to the grand jury established probable cause for the indictment. However, to the extent there was error, it was cured at trial as the entire videotaped interview was played for the trier of fact.
3. Ineffective assistance of counsel. The defendant claims her counsel was ineffective for failing to file a motion to dismiss the indictment on the grounds that the Commonwealth omitted exculpatory evidence from the grand jury presentment. See Commonwealth v. O'Dell, 392 Mass. 445, 448-450 (1984). Again, the defendant is referring to portions of her recorded interview in which she denies committing any crime. As discussed supra, the claim is not supported by the record. Therefore, counsel was not ineffective for failing to file a motion that would have been unsuccessful. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 1, 2015.