On August 13, 2009, a grand jury in Norfolk County returned indictments charging the defendant and two codefendants
On appeal, the defendant challenges the denial of his motion to suppress evidence obtained in connection with the vehicle stop, the sufficiency of the evidence demonstrating both his intent to commit the offenses as a joint venturer and his knowledge that the principal had a weapon, and the omission of a jury instruction that he could only be convicted as a joint venturer in the charged offenses if the Commonwealth proved he knew that the principal was armed. We hold that the defendant’s motion to suppress was correctly denied, and that the evidence presented was sufficient to support the convictions. We conclude, however, that, on the facts of this case, the trial judge’s failure to instruct the jury with respect to the requirement that the defendant knew that the principal was armed created a substantial risk of a miscarriage of justice. Accordingly, we reverse the defendant’s convictions, and remand for a new trial should the Commonwealth decide to proceed with one.
1. Motion to suppress. We turn first to the defendant’s claim that his motion to suppress evidence gathered as a result of the stop of the vehicle was erroneously denied. The defendant asserts that police lacked reasonable suspicion to seize the automobile in which he was a passenger. We accept the motion judge’s subsidiary findings of fact, except when they are clearly erroneous, and we independently review the judge’s ultimate
On the afternoon of July 2, 2009, L.A. heard a knock at the front door of her home in Randolph. She looked outside and saw the defendant, whom she did not recognize. Although he received no response from inside the home, the defendant continued knocking on the front door. L.A. then peered out a window and saw a second man, Jovan Gordon, walking to the rear of the house. She moved to secure a glass door that led from the garage into the home, but Gordon appeared in the garage, on the other side of the door. Gordon pointed a gun at her and shouted, demanding that she open the door. She ran to her bedroom, yelling that she was telephoning the police, which she did, and the two men left. After receiving L.A.’s 911 call, police dispatch broadcast her report of the incident and her description of Gordon as a bearded African-American man in a tan shirt and khaki pants. Dispatch also indicated that the suspect had a gun.
On his way to respond in his unmarked vehicle, Randolph police Detective David Clark saw a gray Acura automobile stopped along the side of North Street, blocks from L.A.’s address. An African-American man wearing a tan jacket and carrying a bag got into the vehicle, and it pulled away. It was headed in the direction from which Clark had come. Clark made a U-turn to follow this vehicle and radioed his observations. Either during the turn or after turning around, he activated his lights.
Detective Paul Smyth, who had also been driving toward L.A.’s house in an unmarked vehicle, heard Clark’s transmission and moved to intercept the Acura. Turning onto North Street from Truman Drive, he cut immediately in front of Clark’s vehicle as Clark completed his U-turn. The Acura had turned off North Street and onto Liberty Street. After Smyth turned onto Liberty Street, he sighted the Acura about one hundred yards ahead. He accelerated to catch up to the Acura, and he saw a gun lying in the eastbound lane of Liberty Street. Smyth estimated that the
An investigatory stop of a motor vehicle is appropriate when the police have “a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the . . . vehicle had committed, was committing, or was about to commit a crime.” Commonwealth v. Alvarado,
The defendant contends that the Acura was seized prior to Smyth’s seeing the gun in the road. He argues that the seizure was therefore based solely on Clark’s observing the defendant, whose appearance did not closely match the description broadcast of Gordon, entering the vehicle. That alone, he says, could not have given police reasonable suspicion to stop the vehicle. We assume, though we need not decide the question, that if the facts were as the defendant describes, his conclusion would be correct.
The defendant argues further that even Smyth’s sighting of the gun did not give rise to reasonable suspicion that the occupants of the Acura had committed a crime. With that contention, we disagree. Even though Smyth did not see the weapon being ejected from the automobile, its presence in the street shortly after the passage of a vehicle that had departed from a location close to a house where a crime committed with a gun
Our analysis of the defendant’s claim proceeds in two steps. First, we must determine when the Acura was seized, a question on which the defendant bears the burden of proof. See Commonwealth v. Netto,
With respect to the first question, we conclude that the Acura was seized when Smyth turned on his lights and siren thirty yards behind the Acura on Liberty Street. As Clark completed his U-turn on North Street, during which he activated his lights and siren, Smyth cut off Clark, interposing his own unmarked vehicle between Clark’s car and the Acura. At that point, Smyth’s car was at least one hundred yards behind the Acura, which had taken a turn on Liberty Street, with Clark behind him even further from the Acura. When Smyth, in the lead police car, turned onto Liberty, the Acura was already more than one hundred yards down Liberty, past a slight bend. Only when Smyth’s car, the one immediately behind the Acura, turned on its lights and siren was the Acura seized for purposes of constitutional analysis. Although Clark turned his vehicle around and activated his lights with the intention of catching and stopping the Acura, an officer’s subjective intent is not relevant to the question whether a seizure has occurred, see Commonwealth v. Cruz,
The second question, then, is whether the police had discovered the gun on Liberty when officer Smyth activated his lights and siren behind the Acura. The motion judge’s findings
Smyth testified that the Acura was at least one hundred yards ahead of him when he turned onto Liberty Street. He did not activate his lights and siren to stop the Acura until he was within thirty yards of the car. So, even if the Acura were not moving, which it plainly was, Smyth would have traveled at least seventy yards along Liberty before activating his siren. Smyth also testified that the gun was approximately seventy yards from the point on North Street, the intersection of North and Truman Drive, where he had cut off Clark’s vehicle. The record does not show the distance between that intersection and the turnoff from North Street to Liberty Street, but Smyth’s testimony necessarily implies that the gun was fewer than seventy yards down Liberty Street. Smyth must, then, have seen the gun before he came within thirty yards of the Acura and activated his lights and siren, thereby initiating the seizure. The stop therefore passes constitutional muster, and accordingly, the motion judge did not err in denying the defendant’s motion to suppress.
2. Sufficiency of the evidence at trial. Joint venture liability arises when a defendant knowingly participates in the commission of the charged offense and has or shares the required criminal intent. Commonwealth v. Zanetti,
In assessing the defendant’s next claim, that the evidence was insufficient to demonstrate beyond a reasonable doubt that he knowingly participated in the crimes with the intent required to
One officer testified that the defendant told him that he and Gordon traveled to L.A.’s house together, and that Gordon began “casing” the house upon their arrival. The defendant argues that this is sufficient only to support a finding that he knew Gordon was seeking to break into an unoccupied home. However, while at the front door of the home, the defendant rang the bell and knocked on the door multiple times. The jury could have concluded that this indicated a plan to entice an occupant of the house into opening the door, for if the coventurers had planned to commit a burglary in an unoccupied house, there would have been no need to continue knocking when there was no response. At trial, L.A. testified that Gordon was carrying a clipboard. This also could have been taken as evidence of a plan to gain entrance to an occupied home, since a person may be more likely to open the door for a stranger if they perceive him to be an official; a technician; a charitable, religious, or political solicitor; or a salesperson: someone who might be carrying a clipboard. Evidence that the joint venturers believed the house to be occupied could also have led the jury to conclude that the defendant knew Gordon had a gun, since, if they were seeking to rob a home with one or more people inside, Gordon and the defendant would need a way to overcome any resistance. See Commonwealth v. Netto, 438 Mass, at 702-703; Commonwealth v. Quinones,
These inferences are not compelled, but, under the familiar
3. Jury instruction. Finally, the defendant argues that the joint venture instruction given by the trial judge was inadequate. As discussed supra, when a defendant is charged as a joint venturer with a crime for which possession of a weapon is an element, a jury may only convict if they find the Commonwealth has proved beyond a reasonable doubt that the defendant knew that the principal had a weapon. Commonwealth v. Phillips, 452 Mass, at 631.
All four of the offenses on which the jury deliberated in this case require, as one of their elements, that the perpetrator be armed. See G. L. c. 265, § 15B(b) (assault by means of a dangerous weapon), § 18A (armed assault in a dwelling), § 18B (possession of a firearm in the commission of a felony), and § 18C (home invasion). The charges were presented to the jury exclusively on a joint venture theory. The trial judge gave a joint venture instruction that closely approximated that approved in Commonwealth v. Zanetti,
With respect to the charge of possessing a firearm while in commission of a felony, of which the defendant was acquitted,
We held in Commonwealth v. Dosouto,
As the name “home invasion” does not on its face indicate the presence of a weapon, the instruction on that count was deficient; neither Dosouto (armed robbery) nor Palmer (masked armed robbery) has any bearing on the question. The names of two other offenses of which the defendant was convicted, however, do indicate that the principal must be armed: armed assault in a dwelling and assault by means of a dangerous weapon. And the jury were told, at the outset of the instructions, that it was necessary to find that the defendant “knowingly participated in the commission of” the named crimes with “the intent required for” those crimes.
As described above, Dosouto emphasized that an instruction like the latter one was given repeatedly. Nonetheless, even assuming Dosouto and Palmer can be read to mean that the requirement of instructing on the element that a joint venturer must have knowledge of a weapon can, in general, be met by a single instruction that a joint venturer must be found to have knowingly participated in a crime the name of which makes clear that it cannot be committed without a weapon (something we need not decide), the instructions here with respect to armed assault in a dwelling and assault by means of a dangerous weapon did not suffice. “[Wjhen viewed as a whole,” Commonwealth v. Dosouto,
The defendant failed to request the knowledge-of-the-gun
4. Conclusion. Although the defendant’s motion to suppress was properly denied and there was sufficient evidence to support the convictions, because the inadequate jury instructions created a substantial risk of a miscarriage of justice, the judgments of conviction are reversed and the verdicts set aside.
So ordered.
Notes
The defendant’s trial was severed on his motion.
In addition, the defendant was identified as the source of a fingerprint on the exterior of a window looking into the garage where Gordon had been when he threatened L.A. with the gun. Given the short period of time over which the incident unfolded, a rational fact finder could have concluded that the defendant actually saw Gordon pointing the gun at L.A. and that he was