40 Mass. App. Ct. 430 | Mass. App. Ct. | 1996
The defendant, Lloyd Powell, appeals from his conviction on a joint venture theory of the crime of armed robbery.
Pires saw Powell make a wrong left turn out of the area and reach a rotary where he drove toward Boston. From the guardrail, Pires had been able to read five of the six digits of the car license. Returning to the bank, she surrendered the number, together with a description of the car and the three occupants, to the police, who had arrived within minutes of the alarm.
About 11:14 a.m., North Cambridge police Officer William Arthur, on patrol with Officer Joseph Keough, received by radio in three transmissions the information imparted by Pires. By 11:20 a.m. Arthur had spotted the Powell car on the Cambridge side of the Charles River where Fresh Pond Parkway meets Greenough Boulevard by the Buckingham, Brown & Nichols School. The car was heading across the Eliot Bridge to Soldiers Field Road which eventually becomes Storrow Drive on the Boston side. Arthur followed. On Soldiers Field Road by Harvard Stadium before the exit to Harvard Square, Arthur radioed his position, then activated his blue lights and siren. The two cars intervening between Powell and Arthur pulled over, but Powell went on. From a distance of perhaps fifteen feet Arthur could see the occupants of the car looking back at the cruiser and talking to one another, with Williams in the back seat fidgeting and moving her hands. Powell drove two to three-tenths of a mile further before halting just short of the River Street underpass.
The officers left their stopped cruiser, taking a defensive position. Arthur ordered Powell to put his hands out his window. Backup arrived. Arthur went to the driver’s side, and Powell emerged. Powell asked what was going on and Arthur said, “You just robbed a bank.” Powell said nothing. The officers noticed Williams, still in the car, stuffing paper money under the rear carpet. Removed from the car, Williams said, “I did it. I did it. They know nothing.”
The tellers were quickly brought to the arrest site. Chanmughan identified Williams, and Pires all three. Forty-five dollars in tens, fives, and ones were recovered from the carpet. A registration paper in the glove compartment indicated that Jerry Powell, the defendant’s brother, was the car owner. No gun was found nor any black bag.
She took the “long walk” back to the car, arriving, apparently, as Barnes returned from Friendly’s restaurant in the mall. She hadn’t looked to see whether she was being followed. The car exited with a wrong turn to the left. When the police began to catch up on Storrow Drive, the defendant asked his carmates why they were being followed; at the arrest, he asked what had he done. Williams tried to hide the stolen money. When she quit the car she said, “I did it. They don’t know anything.” At no time, during the trip to the mall or on the way back, was there talk of a robbery; she did not tell them about it.
The defendant testified. At 8 a.m. he went to his brother’s place on Blue Hill Avenue and borrowed his car and $25 to go to Brigham Circle and buy a cake for his daughter Harlalena’s birthday that day. He picked up Sophia Barnes (mother of one or more of his children) on Codman Place. Williams — the defendant said he didn’t know her that well
Instructions. As noted, the defendant was accused of armed robbery on a joint venture basis, that is, of having aided Williams, the principal. Accordingly, the judge, as part of her comprehensive instructions,
As to Williams’ commission of armed robbery, the judge stated that on the element of gun carrying it would be enough for Williams’ conviction if the jury found she communicated to the teller that she had a gun and after her departure from the bank there was a space of time during which she could have disposed of the weapon. There is support in the cases for the judge’s proposition, see Commonwealth v. Delgado, 367 Mass. 432, 435-437 (1975); Commonwealth v. Howard, 386 Mass. 607, 609-610 (1982); Commonwealth v. Jackson, 419 Mass. 716, 722-725 (1995); Commonwealth v. Powell, 16 Mass. App. Ct. 1016 (1983); and the evidence, besides being undisputed as to the words on the paper handed to the teller (Williams denied merely that she spoke them), allowed some minutes during which Williams could have got rid of a gun, whether or not enclosed in a black bag: for instance, the
As to the defendant himself, there was sufficient evidence from which the jury could find that he aided the principal, Williams (see discussion below), but a serious question arises whether there was sufficient evidence to establish that he knew Williams was armed.
Error in answer to jury’s question. After retiring, the jury put two questions to the judge: (1) “What was Tracey Williams convicted of? Armed robbery or unarmed robbery?” The judge answered, convicted oh a plea of guilty to armed robbery. (2) “Does the prosecution have to prove a weapon was physically there?” Answer: yes. After further deliberation, the jury returned with three additional questions: (3) “Is a conviction of armed robbery evidence that there was a weapon?” The judge answered:
“The answer to that question is, yes, a conviction of armed robbery, or evidence of a conviction of armed robbery in this case, is evidence concerning a weapon in that the conviction is of a crime and you know the elements of a crime include that a person was armed with a dangerous weapon and committed the robbery. It is not binding on you. It is evidence that you may consider along with all the other evidence in this case, the testimony of the witnesses that you’ve heard, the exhibits, et cetera, in order to determine for yourselves if the Commonwealth has proved in this case that a robbery occurred — that an armed robbery occurred. So, you may consider it as evidence, but it is not conclusive on that issue. It is to be treated by you along with all the other evidence that may be considered on this question.”9
The judge was stating in essence that Williams’ prior guilty plea to armed robbery in the same episode could be taken by the jury as (circumstantial) evidence of the presence of a gun
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(22) Judgment of previous conviction.
Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or confinement in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Commonwealth in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.” (Emphasis added.)
So, whereas proof of Williams’ guilty plea could be used to impeach Williams as a witness, it could not be used as evidence against Powell. See to the same effect United States v. Crispin, 757 F.2d 611, 613 (5th Cir. 1985)
As the defendant did not object to the judge’s answer to question (3), we have to consider whether the error created a
Resentencing for unarmed robbery. The error in the judge’s response was material, so the judgment of conviction must at all events be reversed. We go further: we think the evidence did not support a finding beyond a reasonable doubt that Powell knew (believed) that Williams was armed. However, the evidence fully supports a finding of his guilt of unarmed robbery as a lesser included offense.
On the critical question of the presence of a weapon, which is anterior to the question of the defendant’s knowledge, Williams’ previous conviction, as we have seen, cannot count as evidence against the defendant. If, then, we look to the actual evidence on the present record, it is telling largely in a negative sense. Williams shuffled in her bag without producing a gun; there was evidence that in her course from the bank she was carrying a bag, but there was no sign of a gun; no gun
In the degree that there is a grave doubt about the presence of a gun — a gun “physically there’’ — there must be the same or a graver doubt about the element of the defendant’s knowledge. In cases where it has been proved or conceded that a weapon was used, an accessory’s knowledge of it, when not shown directly, may sometimes be fairly imputed to him through circumstances such as a proved chance to have observed the weapon at first hand
The question of the gun and knowledge of the gun to one side, we see ample evidence, upon which the jury could, and evidently did rely, that the defendant assisted as a joint venturer in the acknowledged robbery of the bank. He drove Williams to the mall; parked facing the exit; was waiting with the car doors open and seat folded for Williams’ return; and accomplished a speedy departure. Williams is found stuffing money at the time of the arrests. The jury could and did reject the defendant’s protestation that he was unaware he was aiding in the crime. As in Commonwealth v. Howard, 386 Mass. at 609 n.2, where an armed robbery conviction was reversed and the case remanded for sentencing on the lesser included offense of unarmed robbery, “There is no question that [had the jury not convicted the defendant of armed robbery] the jury would have been warranted in finding the defendant guilty of unarmed robbery.” The judgment is modified to show a conviction of unarmed robbery, and the case is remanded for resentencing as upon that offense.
So ordered.
The defendant was also indicted as an accessory after the fact, but the judge charged that he could be found guilty of either charge but not both.
The Commonwealth’s witnesses were the two bank tellers involved and a police officer who made the arrest.
Pires had obeyed the standard procedure in a robbery of this bank some two weeks earlier. The result was that she could not tell the police the robber’s direction of flight.
Actually an Escort, but Pires and, later, Officer Arthur mistook it for a Mustang.
Pires did not remember hearing the engine turn over or the tires squeal.
The judge saw to it that Williams was independently counselled before she took the stand.
See note 14 below.
We need not digest the entire charge.
The juiy also asked (4) to hear or see a transcript of Williams’ testimony (denied), and (5) to have the judge go over the first criterion under armed robbery, if possible in writing — this referred to the judge’s original charge, of which the “first element” was that “the perpetrator [was] armed with a dangerous weapon” (the judge repeated her original charge in substance).
“Violation of Rule 803(22) threatens two important constitutional interests. First, to the extent that the judgment of conviction reflects another jury’s verdict embracing a finding on an element of an offense before the jury to whom the judgment is offered, it trenches upon a defendant’s due process right to have the government prove every element of the offense with which he is charged. In short, the jury will certainly be influenced by, and may defer to, a finding of another jury, substituting the prior finding for the required evidence. Second, to the extent that the judgment of conviction reflects a guilty plea — equivalent to testimonial admission of guilty — it trenches upon a defendant’s right to confront his accusers.” United States v. Crispin, 757 F.2d at 613 n.l.
he defendant now complains that the judge in her remarks about armed robbery on a joint venture theory overemphasized the requirement that there be a weapon and underemphasized the requirement that the defendant have knowledge of it. We do not find the disparity in treatment that is complained of, and in any case we see no hint of a risk of miscarriage of justice.
Also in this appeal the defendant urges that his position was prejudiced by the reference in the evidence to his making no response when officer Arthur said he had robbed a bank. In fact this was elicited briefly by the defense in its cross-examination of Arthur. The matter had not been mentioned in the prosecution’s direct examination of Arthur, but was referred to briefly in his redirect. It did not appear in the prosecution’s closing argument. That the defense itself introduced the fact makes against its claim of injury, see Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983), citing to Williams v. Zahradnick, 632 F.2d 353, 361-362 (4th Cir. 1980), and anyway the testimony cuts no figure in the evidence as a whole. See United States v. Canales, 585 F.2d 137, 138-139 (5th Cir. 1978). No risk of a miscarriage here.
See Commonwealth v. Barry, 397 Mass. 718, 720-722 (1986); Commonwealth v. Chay Giang, 402 Mass. 604, 609 (1988); Commonwealth v. Stewart, 411 Mass. 345, 351 (1991).
See Commonwealth v. Amaral, 13 Mass. App. Ct. 238, 243-244 (1982); Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 458 (1989); United States v. Sanborn, 563 F.2d 488, 490 (1st Cir. 1977).
The Commonwealth presented no evidence about this. Williams testified that the defendant was a “friend.” When asked how long he had known Williams, the defendant responded, “I didn’t know her that long. I didn’t know her that long. I just been seeing her around.”
The defendant claimed that after picking up Williams on Mission Hill he drove approximately fifteen to twenty minutes to Fresh Pond Mall. This does not square well with the purported times of around 9 a.m. (Williams’ account) or between 9 a.m. and 10 am. (the defendant’s account) of Williams “flagging down” the defendant for a ride and the robbery at approximately 11 AM.