25 Mass. App. Ct. 933 | Mass. App. Ct. | 1987
The defendants concede that, if they were not already under pursuit, their acts of driving over a curb and speeding off would have justified the police in pursuing them. They claim that the “pursuit” actually began at a point in time before they sped away, however, and that at that earlier point in time the police lacked reasonable grounds to suspect that they had committed a crime. See Commonwealth v. Thibeau, 384 Mass. 762,764 (1981). The defendants contend that “pursuit” started when Canty first began to follow them. Since Canty neither signaled the driver to stop (by use of a siren or blue lights, or in any other way), nor impeded the defendants’ free passage, the “pursuit” did not commence when he first began to follow them. See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 419-420 (1982); Commonwealth v. Oreto, 20 Mass. App. Ct. 581, 585-586 (1985); Commonwealth v. Jiminez, 22 Mass. App. Ct. 286,288-290 (1986). Canty’s actions in following the car for a very short distance amounted to surveillance, not “pursuit”. The defendants have a fallback position. The “pursuit” began, they argue, at the very latest, when a second police cruiser arrived at the intersection. They contend that by that time the officers appeared to be intending to make a stop. Even at that point, however, there was no overt step taken by the police to stop the car or impede its course of travel. We agree with the judge that, whatever the police officers may have had in mind about making a stop and conducting a threshold inquiry, until they had given the defendants a signal to stop or in some way blocked their movement, there was no “pursuit.” Thus, whatever the state of the officers’ knowledge at the time about the defendants’ involvement in the crime prior to their speeding away,
2. The sufficiency of the evidence as to Raphael Groves. At trial, Raphael Groves failed to raise by appropriate motion the issue of the sufficiency of the evidence of his guilt of any of the three offenses with which he was charged. We therefore consider his contentions on appeal to determine if there was a substantial risk of a miscarriage of justice. There was not. Gilmore’s employees often viewed him carrying a gun and placing the nightclub’s receipts in a leather bag to take home with him. There was evidence that Raphael Groves was a regular patron at Gilmore’s nightclub and a close friend of a waitress who worked there. He often waited for the waitress before leaving the nightclub. It may be assumed, therefore, that he had some familiarity with Gilmore’s usual procedure for removing the nightclub receipts and the fact that Gilmore occasionally carried a gun. Leon Groves was also known to Gilmore before the incident as a customer at the club. Gilmore testified that during the incident Leon Groves, the masked robber who brandished the gun, repeatedly directed him to look forward, in the direction of Leon Groves. Gilmore testified that he sensed that another individual was in the driveway, based upon his having heard Leon Groves call out “yo” to someone behind Gilmore, having seen Leon Groves look directly behind him, and having heard noises coming from behind him. Raphael Groves was seen driving a car in which Leon Groves was a passenger, presumably the getaway car, fifteen minutes after the crime was reported. The car sped off when the police presence was noted, and when it crashed, Raphael Groves, along with Leon, attempted to run from the police. Raphael Groves had Gilmore’s wallet on his person when he was arrested. The mask and proceeds of the robbery were in the car he was driving. The evidence amply supports the inference that Raphael Groves participated with Leon Groves in planning the masked armed robbery and carrying it out. “The jury may infer the requisite mental state from the defendant’s knowledge of the circumstances and subsequent participation in the offense.” Commonwealth v. Soares, 377 Mass. 461,470, cert. denied, 444 U.S. 881 (1979). See also Commonwealth v. Sylvester, 400 Mass. 334, 339 (1987). Specifically, on the compelling array of evidence before them, the jury reasonably could infer that Raphael Groves knew and intended that Leon Groves, to effectuate the planned robbery, would use a gun and wear a mask to hide his identity. See Commonwealth v. Ferguson, 365
Finally, Raphael Groves contends that there was insufficient evidence to implicate him in the unlawful carrying of the gun. He emphasizes that it was Leon Groves who tossed the weapon from the fleeing car. Raphael Groves was driving during the chase, however, and it would have been difficult for him at the same time to throw it from a window. The gun had been used to carry out the robbery in which both defendants were involved. In the circumstances, we think it was a reasonable inference that Raphael Groves knew the gun was in the car and that he had the ability and intention to exercise control over it. See Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547, 554 (1981); Commonwealth v. Montgomery, 23 Mass. App. Ct. 909, 912 (1986).
Judgments affirmed.
Nothing we have said should be read as suggesting that we would conclude that Somerville police officer Canty was not aware of specific and articulable facts giving reasonable grounds to suspect the defendants of criminal activity at the time he began to follow their car. If he had such grounds, it would be academic when the pursuit actually began. For cases discussing the difficult line-drawing process often required to determine whether the police had enough information to make an