37 Mass. App. Ct. 43 | Mass. App. Ct. | 1994
On the night of June 22, 1990, just as Georgette Corriveau came out of a store at a shopping mall and was about to get into the passenger seat of her automobile,
1. The evidence. Ronald Corriveau testified that he was seated in his car, which was parked along the curb outside a Sears store in a shopping mall. The engine was running, and he was waiting for his wife, Georgette Corriveau, to come out of the store. Upon seeing her, he reached over and pushed open the passenger door. Before she could slip into her seat, her purse was pulled from her shoulder by Henry Lombard. Georgette Corriveau told her husband what had happened, and he told her to wait on the sidewalk. Because Corriveau had left the engine running while he waited for his wife, he was able to give immediate pursuit to Henry Lombard, who was running among the cars parked in the lot.
Eventually, Henry Lombard apparently tired and slowed his pace. Corriveau got out of his car and ran toward him. Lombard held to the strap of the purse and swung at Corriveau. The strap broke, and the purse sailed past Corriveau. Corriveau lunged for Lombard, and the struggle began.
Two or three people, seeing the chase and the struggle, started toward the two men on the ground. Each testified that, as they came upon the scene of the fight, a van pulled up. Two women, the defendants, got out of the van and be
Upon being released, Henry Lombard jumped up, retrieved the purse from where it had landed, got into the van, and drove off with the defendants. One of the witnesses to the struggle followed the van for a short time and then alerted the police, giving them a description of the vehicle. The defendants and Henry Lombard were arrested shortly thereafter. Georgette Corriveau’s purse was in the van.
After the Commonwealth rested its case and the judge denied the defendants’ motions for a required finding of not guilty, Anita Sargent and Henry Lombard testified. Sargent, who owned and drove the van, denied involvement in the robbery. She stated that she, Lisa Lombard, Henry Lombard, and Berry Lacardi had pulled into the mall parking lot so that the men could use the restroom. She parked “way down” in the lot and sat with Lisa Lombard, listening to the radio and waiting for the men to return. When Sargent saw Henry Lombard being chased through the parking lot, she drove in his direction. She stopped the van at the point of the struggle and saw that Henry Lombard was being restrained by Corriveau. She got out of the van and began hitting Corriveau, screaming words to the effect that Corriveau was assaulting her brother.
Henry Lombard, whose credibility was ultimately impeached by his prior convictions for burglary, stated that neither Sargent nor Lisa Lombard had participated in the taking of Georgette Corriveau’s purse. The idea of taking someone’s purse first occurred to him when he was returning from the restroom and saw Georgette Corriveau. After he grabbed the purse from her shoulder, he ran off in one direction and Lacardi in another. In short, he supported Sargent’s testimony.
At the close of the Commonwealth’s case and, again, at the conclusion of the evidence, the defendants moved for required findings of not guilty. On appeal, Sargent argues that, because the Commonwealth must prove the offense as charged, see Commonwealth v. Hobbs, 385 Mass. 863, 869 (1982), and because there was no evidence that Ronald Corriveau’s property was taken from his person by force, she was entitled to a required finding of not guilty on the robbery indictment.
At the close of the Commonwealth’s case, the evidence most favorable to it concerning the defendants was that as Ronald Corriveau and Henry Lombard were engaged in their struggle, a van pulled up, two women appeared and began kicking Corriveau, and that they and Henry Lombard then sped off in the van. There was nothing in the Commonwealth’s evidence to show, or to allow for an inference, that the defendants knew that Henry Lombard entered the mall intending to commit a robbery, that they positioned themselves and the van in such a way as to act as either “lookouts” or facilitators of his escape, that they saw him holding a purse as he ran from Corriveau, or that they shared his criminal intent. See Commonwealth v. Walsh, 407 Mass. 740, 743-745 (1990); Commonwealth v. Flowers, 1 Mass. App. Ct. 415, 419 (1973). Compare Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976). Although Henry Lombard’s flight from the parking lot would be relevant proof against
3. The assault and battery. Although all the claims of error alleged by the defendants to have occurred throughout the proceedings against them have been presented primarily in respect to the robbery indictments, some of the alleged errors could also have had an effect on the assault and battery indictments. Because the record does not reflect that the defendants affirmatively assented to their convictions on the assault and battery indictments being placed on file, see Commonwealth v. Delgado, 367 Mass. 432, 438 (1975); Commonwealth v. Nowells, 390 Mass. 621, 630 (1983), we consider their remaining arguments as they relate to those charges. None requires lengthy discussion.
There is no support in the record for the defendant Lombard’s claim that the prosecutor impaired the grand jury proceedings by knowingly presenting false evidence. Two of the witnesses to the assault signed a statement for the police in which they stated that they saw two women kicking and beating a man. Whether the witnesses told the police that the defendant Lombard’s hair was “straggley” or “curley on the bottom” is trivial. There was no error in the denial of her motion to dismiss. See Commonwealth v. Martino, 412 Mass. 267, 278-279 (1992).
Nor is there anything in the record which remotely suggests that the defendant Lombard’s motion for severance
There is no question that there was a delayed disclosure of a photographic identification of Lombard by one of the witnesses to the beating. We shall assume for purposes of decision that had there been timely disclosure, a motion to suppress the photographic identification would have been brought and allowed. However, Lombard has not shown that even with suppression of the photographic identification, she “would have been able to prepare and present . . . [her] case in such a manner as to create a reasonable doubt that would not otherwise have existed.” Commonwealth v. Paradise, 405 Mass. 141, 150-151 (1989). The Commonwealth presented evidence to show that two men ran from the Corriveau car after one of them (Henry Lombard) had taken Georgette Corriveau’s purse and that two women were involved in the beating of Ronald Corriveau. Both Henry Lombard and Sargent testified to Lombard’s presence in the van at the time of the robbery and at the time of her apprehension a half an hour later. In view of this evidence, we see no prejudice to Lombard from the untimely disclosure to her of the photographic identification. See Commonwealth v. Caracino, 33 Mass. App. Ct. 787, 793-794 (1993). For substantially the same reasons, we see no substantial risk of a miscarriage of justice in the jury instruction on consciousness of guilt.
We need not consider the defendants’ arguments about the prosecutor’s closing argument as the statements about which
As to the defendants’ convictions for robbery, the judgments are reversed, the verdicts are set aside, and judgments are to enter for the defendants. The other judgments are affirmed.
So ordered.
That statute, as amended by St. 1981, c. 678, § 4, provides: “Whoever, not being armed with a dangerous weapon, by force and violence, or by assault and putting in fear, robs, steals or takes from the person of another, or from his immediate control, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any term of years.”
We do not suggest that the first time Sargent raised this issue is on appeal. She moved to dismiss the robbery indictment on the basis that the grand jury had not been presented with any evidence of a robbery of Ronald Corriveau. See Commonwealth v. McCarthy, 385 Mass. 160 (1982).
Lombard has made no argument on appeal concerning the denial of her motion for a required finding of not guilty, and Sargent’s argument is limited to the issue of the sufficiency of the evidence of a robbery of Ronald Corriveau. Where, however, both the defendants requested required findings of not guilty and where the only real issue at trial in respect to the robbery indictments was whether a joint venture existed, we think it appropriate “to exercise our ‘rarely used power’ to set aside the verdict[s] in order to prevent a miscarriage of justice.” Commonwealth v. Almon, 30 Mass. App. Ct. 721, 724 (1991), quoting from Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). For a discussion of the circumstances giving rise to a “miscarriage of justice” under Commonwealth v. Freeman, supra, see Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), and cases therein collected.
Although the defendants were entitled to required findings of not guilty on the robbery indictments, Sargent was not entitled to dismissal of that indictment. Her claim that the grand jury was not presented with evidence sufficient to show probable cause to believe that Ronald Corriveau had been robbed, see note 4, supra, is without merit. The grand jury was presented with evidence of specific acts against Ronald Corriveau. Whether one of those acts constituted the crime of robbery is a question of law which is not readily or necessarily answered in Sargent’s favor.