Opinion
No. 09–P–280.
2013-03-6
COMMONWEALTH v. Stanley THOMPSON.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction on charges of armed robbery, see G.L. c. 265, § 17; and assault by means of a dangerous weapon, see G .L. c. 265, § 15B, the defendant contends that the evidence at trial was insufficient to support his conviction of armed robbery, and asserts that he is entitled to a new trial by reason of ineffective assistance of his trial counsel and errors in the admission of certain evidence.
We discern no cause to disturb the judgments, addressing the defendant's contentions in turn.
At oral argument, the defendant withdrew his claim that his conviction of assault by means of a dangerous weapon is duplicative of his conviction of armed robbery. See Commonwealth v. Anderson, 461 Mass. 616, 632–634 (2012).
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, the trial judge could have concluded the following. The defendant was approached by Ronald Garry, Jr., an employee working at Tropical Foods, when Garry observed the defendant emerging from the store with several bags that Garry believed to contain stolen store merchandise. Garry asked the defendant to come with him and another store employee to a quiet section of the store. Once there, Garry began questioning the defendant. When the defendant appeared “very nervous” and appeared to be “looking excitedly for something,” Garry became concerned that the defendant might have some sort of weapon. Garry wrapped his arms around the defendant's shoulders, and a brief struggle ensued, during which Garry observed the defendant to have a handgun in his right hand. The defendant escaped Garry's grasp and ran toward the front door of the store, with the gun still in his hand; once near the door, the defendant turned back toward Garry, yelled at him, and pointed the gun at him. Garry ran upstairs to telephone the police, and the defendant retrieved the bags (which contained stolen store merchandise) and left the store. The defendant's argument that there was an inadequate nexus between his taking of property and his use of force borders on the frivolous. “[T]he nexus between the force or fear and the taking may be relatively loose and yet encompass a robbery.” Commonwealth v. Lashway, 36 Mass.App.Ct. 677, 680 (1994). In the circumstances described, a rational fact finder readily could conclude “that the force was used to ‘facilitate the larceny.” ’ Ibid., quoting from Commonwealth v. Sheppard, 404 Mass. 774, 778 (1989).
2. Ineffective assistance of counsel. There is likewise no merit to the defendant's claim that he was deprived of constitutionally effective counsel. Even if we assume (favorably to the defendant) that trial counsel was ineffective by reason of his failure to obtain and enter in evidence the property sheet describing property seized from the defendant upon his arrest, the record furnishes no cause to believe “that better work [by counsel] might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Though the property sheet lists a camera, it includes no description of the camera to suggest that it was shiny or metallic (or, therefore, that it resembled in any manner the handgun that the witnesses observed, and which the surveillance digital video disc (DVD) depicted the defendant using during the robbery). Moreover, even if we accept the defendant's further contention that counsel's ineffectiveness encompassed failure to call as a witness an investigator to testify that the camera was shiny and metallic, there is nothing to suggest that it had a wooden handle (a distinctive feature of the handgun consistently described by the witnesses who saw the gun in the defendant's hand). Counsel's failure to obtain and submit the property sheet did not create a substantial risk of a miscarriage of justice.
See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4 (1994).
Moreover, the defendant's use of an object perceived by the victims as a weapon, in order to produce fear and thereby complete a robbery, would have supported his conviction even if the item he brandished was in fact a camera. See Commonwealth v. Johnson, 27 Mass.App.Ct. 746, 748 (1989).
3. Admission of DVD and plastic piece. Finally, we discern no error in the admission of two items of evidence challenged by the defendant on appeal. The defendant did not object to admission of the piece of plastic recovered by Garry near the stairs where Garry and the defendant struggled.
The judge did not abuse his discretion in concluding that the plastic was relevant to corroborate Garry's testimony concerning evidence found at the scene. In any event, even if we were to accept the defendant's assertion that the evidence was irrelevant, the defendant has furnished no basis to support a conclusion that it prejudiced him in any way.
At trial, the defendant's trial counsel responded to the judge's inquiry concerning admission of the object, “Definitely no objection.” Of course, there is no error in the admission of evidence to which no objection is raised.
As to the DVD, the defendant's sole objection at trial was based on chain of custody, a contention he appears to have abandoned on appeal (and which is baseless in any event). In any event, even if the defendant had objected at trial on the grounds he now asserts on appeal, the objection would have been overruled for the reasons explained in the Commonwealth's brief at pages twenty-five to twenty-eight. See Commonwealth v. Leneski, 66 Mass.App.Ct. 291, 294–296 (2006). There was no error, and therefore no substantial risk of a miscarriage of justice.
Judgments affirmed.
Orders denying posttrial motions affirmed.