10 Mass. App. Ct. 757 | Mass. App. Ct. | 1980
The defendant appeals from convictions of armed robbery under G. L. c. 265, § 17, and of armed assault in a dwelling house under G. L. c. 265, § 18A. He assigns as error the trial judge’s supplementary instruction, given in response to a question submitted by the jury after they had begun deliberations. The question follows: “[U]pon entering the dwelling of Wayne Pascoal, does it matter whether or not the defendant R. Breese was carrying the gun?” Defense counsel agreed that “the short answer [to the question] is no.” Defendant complains for the first time on appeal that the judge’s response to the question
The Commonwealth’s case may be summarized as follows: At about 2:30 a.m. on June 28, 1979, the victim was awakened in his motel room by a man, later identified as the defendant, demanding that the victim produce three ounces of cocaine. The defendant dragged the victim, who protested throughout that he knew nothing about any cocaine, to the bathroom while another man, later identified as Roal Sanchez, searched the bedroom. The defendant then dragged the victim back to the bed and searched the victim’s wallet, taking $64.00 and two credit cards. After about three to five minutes, the defendant brought the victim to the middle of the room, took a gun from Sanchez and, with the gun pointed at the victim’s head, demanded that the victim tell him where the cocaine and the keys to the victim’s van were. After a brief interruption during which Sanchez held the gun, the defendant again took the gun and demanded that the victim disclose where the cocaine and keys were.
The defendant contends that the judge’s supplementary instructions allowed the jury to convict the defendant regardless of whether he was carrying the gun when he entered the victim’s room and that therefore the conviction
The defendant also complains that because the Commonwealth did not show that the defendant was carrying the gun on his person when he took the $64.00 and the two credit cards from the victim’s wallet, the judge’s supplementary instructions prejudiced the defendant because they allowed the jury to convict the defendant for armed robbery even though the defendant was not carrying the gun at the time the property was taken. This argument must fail. As in the case of armed assault in a dwelling, where the defendant jointly participates in the commission of an armed robbery he may be considered armed when he has knowl
Judgments affirmed.
General Laws c. 265, § 18A, as amended by St. 1969, c. 473, provides in material part: “Whoever, being armed with a dangerous weapon, enters a dwelling house and while therein assaults another with intent to commit a felony shall be punished by imprisonment in the state prison for life, or for a term of not less than ten years.”