Opinion
No. 12–P–921.
2013-04-1
COMMONWEALTH v. Sean P. DOYLE.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions of unarmed robbery and other crimes, the defendant contends (1) the evidence was insufficient to establish that he was the person who beat and robbed the victim, and (2) the prosecutor's closing argument gives rise to a substantial risk of a miscarriage of justice. We affirm.
1. Sufficiency of the evidence. Even though the defendant did not move for a required finding of not guilty at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. McGovern, 397 Mass. 863, 867–868 (1986) (conviction based on legally insufficient evidence creates substantial risk of miscarriage of justice). Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), a tightly connected web of circumstantial evidence amply established that the defendant was one of two men who beat and robbed George Dimock, as Dimock prepared to deposit receipts from a Burger King restaurant into a night deposit box at TD Bank in Falmouth. Surveillance video captured images of two men assaulting and robbing Dimock at about 1 A.M. Within fifteen minutes, a deputy sheriff, aided by a tracking dog, followed two sets of footprints left by the robbers in freshly fallen snow to a Holiday Inn a short distance away. There, the night manager told the police that two men entered at 1:30 A.M. and asked to use the lobby restroom. No one else used the lobby restroom until the men asked to do so. Inside the restroom, the police found a deposit slip, a deposit envelope, a night deposit bag, as well as a black neoprene ski mask (one of the robbers wore a mask), and a black sweatshirt.
The two men left the Holiday Inn by taxi. The taxi driver, James Reardon, took the two men to 115 Locust Street. A short time later, Reardon received a call to take the same men to a Seven Eleven. After speaking with the police, Reardon picked the men up and took them to the Seven Eleven where the police were waiting. Upon exiting the cab, the defendant said “Damn. It's the cops.” Reardon identified the defendant and Michael Ellis as the same two he had picked up at the Holiday Inn. He related they were wearing the same clothes and sat in the same seats they had occupied previously. Inside the cab, directly behind the driver's seat and in front of where the defendant had been sitting, the police found $595 in bills.
At booking, the police found $30 on the defendant and $5 on Ellis. Later that morning, the defendant and Ellis turned over additional sums at the Falmouth District Court. In total, the defendant and Ellis had $1270 on them, just $55 short of the total amount taken from Dimock. Ellis previously worked at Burger King and was aware of its night deposit procedures, having accompanied an assistant manager making the night deposit on prior occasions.
2. The prosecutor's closing argument. For substantially the reasons set forth in the Commonwealth's brief at pages twenty through twenty-four, nothing in the prosecutor's closing argument warrants reversal of the convictions. See Commonwealth v. Koumaris, 440 Mass. 405, 414 (2003); Commonwealth v. Silva, 455 Mass. 503, 516–517 (2009). Viewed in context and as a whole, the argument focused on the reasons the evidence established the defendant's guilt. Neither the prosecutor's crude reference to the aspects of the defendant's testimony as “baloney,” nor his assertion that the defendant was “not credible” and should not be believed was outside the bounds of fair argument.
Judgments affirmed.