Opinion
20-P-934
10-14-2022
COMMONWEALTH v. BRIAN JOYCE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a jury-waived trial, a Superior Court judge found the defendant guilty of armed robbery in violation of G. L. c. 265, § 17.' The defendant appeals claiming that the evidence was insufficient to support his conviction. We affirm.
The judge found the defendant not guilty of unlicensed possession of a firearm, carrying a loaded firearm, and possession of a firearm while committing a felony.
After the guilty finding, the defendant was arraigned as to the subsequent offense portion of the armed robbery indictment, and he pleaded guilty.
The Commonwealth's theory was that the defendant and his accomplice, Jeffrey Jones, acting together in a joint venture, undertook to, and did, rob the victim at gunpoint. The defendant argues that the Commonwealth did not present sufficient evidence that he possessed the intent necessary to rob the victim or knew Jones was armed with a firearm. The defendant argues that if he joined in any joint venture with Jones, it was only to purchase a cell phone from the victim, not to rob him.
Because sufficiency of the evidence is at issue, the question we must decide is "whether the evidence viewed in the light most favorable to the Commonwealth could have 'satisfied a rational trier of fact' of each element of the crimes charged beyond a reasonable doubt." Commonwealth v. Conkey, 443 Mass. 60, 72 (2004), quoting Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
To prove the defendant's participation as a joint venturer in an armed robbery, the Commonwealth was required to prove beyond a reasonable doubt that the defendant knowingly participated with Jones in the commission of the armed robbery and shared the necessary intent for the crime. See Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009). The Commonwealth must also prove that the defendant had knowledge that Jones was armed with a dangerous weapon. See, e.g., Commonwealth v. Fickett, 403 Mass. 194, 196-197 (1988).
As for the substantive crime of armed robbery itself, it was incumbent on the Commonwealth to prove that the defendant or Jones, or both, (1) was or were armed with a dangerous weapon; (2) either applied actual force or violence to the alleged victim or by words or gestures put him in fear; (3) took the money or real property of the victim; and (4) did so with the intent (or sharing the intent) to steal it. See Commonwealth v. Rogers, 459 Mass. 249, 252 n.4 (2011) .
1. Intent to participate in armed robbery.
We disagree with the defendant that the evidence only showed that the defendant shared, at most, Jones' intent to purchase a cell phone from the victim, not his intent to rob the victim. A fact finder is permitted to "infer the requisite mental state from the defendant's knowledge of the circumstances and subsequent participation in the offense" (citation omitted). Commonwealth v. Lendon, 35 Mass.App.Ct. 926, 927 (1993) . Knowing participation in a crime may "[take] 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." Commonwealth v. Simpkins, 470 Mass. 458, 462 (2015), quoting Zanetti, 454 Mass. at 470 (Appendix).
Here, the defendant parked the car next to a broken streetlamp at 1 A.M. He was in the driver's seat with his foot on the brake keeping the engine running. When the victim approached the defendant at the driver's side, the defendant directed the victim to go to the passenger's side of the car to Jones, where it was dark. The victim then asked twice to go towards a lighted stairwell, to which Jones refused. After the second refusal, the victim showed Jones the phone box and Jones stepped out of the car, left the door open, lifted his shirt, and showed the victim the handle of the firearm. The victim then put his hands up and handed the phone to Jones.
This evidence is sufficient to find that the defendant was in a position where he could observe the armed robbery, see anyone approaching the car and give warning, and facilitate an escape. See Commonwealth v. Chhim, 447 Mass. 370, 378-379 (2006). Additionally, there was evidence that after Jones robbed the victim, the defendant immediately sped from the scene and ran through a stop sign. This evidence supports the inference that the defendant had advance knowledge of the robbery. See Commonwealth v. Stewart, 411 Mass. 345, 352-353 (1991) ("evidence that the defendant instantly moved the automobile out of its parking space and accelerated rapidly without first conversing with [coventurer] . . . was indicative of prearrangement between the defendant and [coventurer], and tended to prove advance knowledge on the defendant's part of what had just occurred"). See also Commonwealth v. Giang, 402 Mass. 604, 609 (1988) (sufficient evidence where defendant "waited near the jewelry store in an automobile with the engine running and instantly drove off with the principals in the attempted robbery as they fled from the store").
2. Knowledge that Jones had a firearm.
There was sufficient evidence for the jury to conclude that the defendant knew Jones had a firearm. "Knowledge that a fellow joint venturer is armed may be inferred when, from the circumstances of the crime, a victim's resistance is reasonably to be anticipated such that the participants in the crime would have recognized the need for some means by which to overcome that resistance." Commonwealth v. Lavin, 101 Mass.App.Ct. 278, 284 (2022), quoting Commonwealth v. Netto, 438 Mass. 686, 702-703 (2003) .
The evidence demonstrated that the coventurers knew the victim would be carrying a red limited-edition iPhone 7 Plus, which the victim testified was "really expensive" and worth "a thousand-something dollars." Given the victim would likely not give up such a valuable item without resisting, it could be expected that a weapon might be needed to complete the robbery. It is well settled that "a person joining in a robbery under conditions like the present, and apprehending that the intended victim might resist, could suppose that the other actor[] might be furnished with [a] weapon[]." Commonwealth v. Ferguson, 365 Mass. 1, 9 (1974). That inference is even stronger here where the defendant directed the victim to the side of the car where the coventurer possessing the means of overcoming resistance was seated.
Additionally, the defendant was the getaway driver after witnessing an armed robbery. Given this circumstance, "both the Supreme Judicial Court and [the Appeals Court] have been 'unwilling to adopt a rule which would create artificial barriers against inferences of complicity which may naturally be drawn against one found present in a getaway car during or shortly after an armed robbery." Commonwealth v. Tracy, 27 Mass.App.Ct. 455, 457-458 (1989), quoting Giang, 402 Mass. at 609.
Even if the defendant was initially unaware that Jones had a firearm, he continued to participate in the armed robbery after it became apparent a firearm was involved. "Where a defendant continues to act in furtherance of the joint venture even after learning of a coventurer's weapon, we have allowed an inference that the coventurer had the requisite intent for the joint venture." Commonwealth v. Buth, 480 Mass. 113, 117 (2018) .
Here, the defendant would have been able to see the victim put his hands up after Jones lifted up his shirt to show the victim he was holding a firearm. This, plus the fact that he was close enough to hear Jones tell the victim "[i]t's my phone now" and see the victim hand Jones the phone, is sufficient evidence for the finder of fact to find the defendant knew Jones had a weapon at that point. Thus, immediately after the robbery, when the defendant quickly drove Jones away, driving through a stop sign, a rational finder of fact could have found that the defendant was acting in furtherance of the joint venture after learning of Jones's weapon. See Buth, 480 Mass. at 117. See also Commonwealth v. Rakes, 478 Mass. 22, 33 (2017) (it is "reasonable to conclude that [defendant] became aware [of the firearm] over the course of the robbery and continued to participate, implicating him in the joint venture").
There was sufficient evidence to support a finding that the defendant had both the intent necessary to participate in the armed robbery and knowledge that Jones had a firearm.
Judgment affirmed.
Desmond, Sacks & D'Angelo, JJ.
The panelists are listed in order of seniority.