42 Mass. App. Ct. 181 | Mass. App. Ct. | 1997
The defendant Kevin Branch was tried in Suffolk Superior Court on indictments charging him with the crimes of armed assault with intent to murder (G. L. c. 265, § 18[6]), assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A[6]), possession without a license of a firearm on his person or in a motor vehicle (G. L. c. 269, § 10[íz]), and possession of ammunition without an I.D. card (G. L. c. 269, § 10[/z]). When the Commonwealth rested, the defendant moved for a required finding of not guilty, which was denied. Thereupon the defendant rested. The jury found the defendant guilty of all four offenses. The sentences
SUMMARY OF TESTIMONY
Lorenzo Jones testified: About noon, August 4, 1994, Lorenzo Jones encountered Rasheed Fountain, whom he had known for some eight years. Fountain was, looking for a lift to Dudley Street (in the Roxbury section of Boston) where he might buy sneakers. Jones did not accommodate Fountain at that time, but around six o’clock thát evening Fountain, now accompanied by Kevin Branch (the defendant), only slightly known to Jones, met Jones at the comer of Fayston and Mas-coma Streets. The two boarded Jones’s rental car, a Ford Tempo. As the party set out, Fountain said the money was at his house, and Jones accordingly drove to Fountain’s place on Magnolia Street. Fountain and the defendant left the car, entered the apartment building, emerged in five minutes, and got into the car. As before, Fountain took the front passenger seat, the defendant the rear passenger seat.
Very soon, as the car was headed to the corner of Mas-coma and Greenheys Streets, Fountain with his right hand drew a revolver from his waist and held it to Jones’s right side. At the same time he ordered Jones to “run him off” Jones’s jewelry. Jones refused. Instantly the defendant from the rear seat shouted, “Shoot that motherfucker, shoot that motherfucker.” Fountain told Jones to stop the car; Jones did so near the corner. The defendant stepped out, and after some abusive argument Fountain also left the car. Jones started to drive toward Fayston Street. In his rear mirror he saw Fountain pointing the gun at the car. With the car still moving, Fountain fired four shots. Severally these struck the trunk of the car, shattered the rear window, grazed Jones’s
Gary C. Yancey. Yancey and Robert Ventullo of the New World Security force (special police officers) were idling on Greenheys Street, Yancy outside their vehicle, Ventullo within. They heard the gunshots and within seconds saw the defendant and Fountain running toward them. The defendant — identified as the shorter of the two, lean, with a big Afro hairdo, wearing all black
Robert Ventullo: Ventullo heard the gunshots, saw the men running up Greenheys Street toward Yancey and himself, and drew his weapon, with the result also observed by Yancey. He described the man with the gun as the shorter and leaner of the two, Afro hair style, clothed all in black — the defendant now in court. Ventullo followed the pair through the field off Greenheys Street and then through backyards and over a couple of fences. The defendant threw his gun as he went over the second fence. Finally the men, with Ventullo still in pursuit, reached and came to a halt in the Ceylon Street park. As Ventullo came abreast, he saw that security officers had apprehended the men and had them against a fence near the baseball field. Ventullo took part by frisking Fountain: no weapon found. Boston police took the defendant and Fountain in custody.
Other testimony by sundry witnesses described the finding
QUESTION OF WITHDRAWAL FROM JOINT VENTURE
The judge denied the defendant’s motion for a required finding of not guilty and the defendant does not contend that that was a mistake. Such a contention would be vain, for the record as made supports the convictions on the bases mentioned of both accessorial
The evidence the defendant pointed to as fastening a duty on the judge to give the instruction consisted of Jones’s observation that the defendant was moving away from the car toward Greenheys Street when Fountain fired the weapon. Let us suppose that the walking began before the shots were fired, as the defendant wants us to imagine. Centering attention on the charge of armed assault with intent to murder, the defendant says the crime was consummated when the shots were fired, and so the “withdrawal” was timely. To the contrary, the Commonwealth says that the crime was completed inside the car when Fountain with the defendant’s enthusiastic encouragement assaulted Jones with the weapon; the firing would then appear merely as additional proof of the necessary criminal intent, citing Commonwealth v. Slaney, 345 Mass. 135, 138 (1962), Salemme v. Commonwealth, 370 Mass. 421, 424 (1976), and Commonwealth v. Lopez, 383 Mass. 497, 500 (1981). But on the defendant’s own hypothesis of the sequence of events, the so-called withdrawal or abandonment still conformed not at all with the standard definition of the term (or its grounding in reason and policy) as
“In order to support a theory of withdrawal or abandonment of a joint venture, ‘there must be at least an appreciable interval between the alleged termination and [the commission of the crime], a detachment from the enterprise before the [crime] has become so probable that it cannot reasonably be stayed, and such notice or definite act of detachment that other principals in the attempted crime have opportunity also to abandon it.’ ”
In no view of the present case was there an “appreciable interval” with reasonable opportunity for Fountain to abandon the venture; the defendant’s steps toward Greenheys Street rather figured as the start of a flight from the scene of the crime, in which Fountain promptly joined. The defendant, having in the car urged Fountain to “shoot the motherfucker,” gave no “notice” by word of mouth to his coven-turer of his “detachment” from the scheme, and the “act” of walking could hardly serve as such notice. The defendant’s claim of withdrawal is an unreal construct. The judge was not bound to give an instruction, for there was no basis in the record for it: the evidence did not “raiseQ a reasonable doubt as to whether the defendant continued to be part of a joint venture,” which would cast on the Commonwealth “the burden of proving beyond a reasonable doubt the absence of abandonment.” Commonwealth v. Fickett, 403 Mass. 194, 201 n.7 (1988). See also Commonwealth v. Cook, 419 Mass, at 201-202; Commonwealth v. Joyce, 18 Mass. App. Ct. 417, 426-430 (1984).
Judgments affirmed.
Tour to seven years at Cedar Junction for the armed assault with intent to murder, concurrent one to three years for firearm possession, and five years’ probation from and after release from commitment for the assault and battery by means of a dangerous weapon. The conviction of possession of ammunition was placed on file.
Fountain had a muscular build and wore green.
“There are cases where such liability [in joint venture] arises without prior planning or agreement. So it has been held enough that at the climactic moments the parties consciously acted together in carrying out the criminal endeavor, each thereby becoming responsible for the acts of the others. An element of mutual assent at those moments no doubt there is, but there need not have been an anticipatory compact.” Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 513 (1987).
Quoting from Commonwealth v. Fickett, 403 Mass. 194, 201 (1988), which quoted from Commonwealth v. Green, 302 Mass. 547, 555 (1939).