Opinion
10-P-1505
02-22-2012
COMMONWEALTH v. KIM SZATHMARY.
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, Kim Szathmary, contends there was insufficient evidence presented to support her convictions for unarmed robbery, armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and credit card fraud. She also objects to various statements made during the prosecution's closing argument. We affirm.
For substantially the reasons stated in the Commonwealth's brief at pages 16 to 24, the judge properly denied the motion for required findings of not guilty on the offenses for which the defendant was convicted. The evidence presented, given the common modus operandi of the crimes, was 'sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commissions of the crime[s] charged, . . . [with her boyfriend] with the intent required to commit the crime[s].' Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009).
The prosecution's closing arguments were also proper. Circumstantial evidence clearly supported the description of the defendant as the 'get-away driver' for the crimes committed. That evidence included the fact that she was videotaped within minutes after the robberies of Jessica Museck, Lisa Meckley, and Eleanora Raikh using bank cards or credit cards stolen in the robberies. The defendant also admitted to being the primary driver of the 2003 black Mercury Sable, a car matching the description of the getaway vehicle identified in many of the offenses, and her live-in boyfriend was identified as the assailant in all of the offenses.
Finally, the prosecutor's reference to her post-Miranda statement as neither having 'the Good Housekeeping Seal of Approval' nor giving the defendant 'a license to lie' was a fair response to defense counsel's suggestion that the decision to waive the right to remain silent somehow gave credibility to the statements themselves. See Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 636-638 (2003). Based on the evidence presented, it was also fair to suggest that those statements were not truthful.
Judgments affirmed.
By the Court (Berry, Kafker & Mills, JJ.),