*1 Ct. 408 Commonwealth Saez. vs. Edwin Saez. Worcester. October [1985] . January 1986. Grant, Cutter, Smith, Present: & JJ.
Controlled Enterprise. Substances. Joint At the trial of an indictment charging possession of heroin with intent to
distribute, evidence that the defendant looked and down the street once while what to be appeared drug taking transaction was place between the defendant’s companion and a man who had arrived in an automobile, later, and that some time after the defendant and his com- panion had left an apartment building, the defendant went to the street looked and down once while companion his went to the rear of and concealed a white bundle later discovered to contain heroin, insufficient, more, without to warrant the defend- ant’s on J., conviction enterprise theory. [411-413] Cutter, dissenting. found and returned in the Superior Court Depart- Indictment ment on March James, Donohue, The case was tried before P. J. O’Neill, Services,
Patricia A. Committee for Public Counsel for the defendant. Sullivan,
Claudia R. Assistant District Attorney, for the Com- monwealth. J. The defendant was indicted for the crime of unlawful
Smith, of heroin with intent to distribute. At the conclusion evidence, the Commonwealth’s the defendant filed a motion for a denied, of not required finding guilty. motion was it is the defendant’s sole contention on that the judge’s appeal action in the motion denying constituted error.
We recite the facts that could have been found On jury. 28, 1983, October three officers were police a narcot- conducting ics surveillance on King Street Worcester. The defendant was observed in front of 20 standing King Street. At approximately Gonzales, 8:00 a.m. the defendant was one who approached by 21 Mass. v. Saez. *2 in conversation two men engaged known to the
was police.1 arrived another man About 8:15 in front of the building. a.m., and of the automobile approached in an automobile. He out got Gonzales gave the and Gonzales in engaged conversation. pair While for some money. the a small red exchange man packet defendant, stand- who was was the taking this transaction place, Gonzales, looked and down of length up within an arm’s ing than a minute. did take longer the street. The transaction not automobile, defendant and in his the After the man left for a few minutes. outside 20 Street Gonzales talked King Terrace, where Street onto then walked They King King the rear building through entered a three-decker they apartment a a short time in second floor entrance. After spending apart- door, ment, walked to the left the the same by they building the in a taxi. front of and building, departed , At a arrived at the King about 9:15 a.m. man and woman the Terrace address automobile. The woman was known to the the automobile and entered man unknown. left They police, the same second floor which the defendant Gon- apartment afterward, the zales had entered. defendant Shortly previously and Gonzales returned and reentered the Approxi- apartment. the a minute later the man and woman left mately apartment, car, into their and drove got away.
A man had few minutes after the and woman departed, and came downstairs defendant and Gonzales left apartment walked to the defendant They yard. separated, to the of the building Street. He went front King apartment went to the rear and down the street. Gonzales looked up a white bundle in the and concealed of apartment near a The bundle was retrieved police. grass dumpster. around silver foil It turned out to be tissue two paper wrapped red nine smaller Each contained packets. packet heroin. white The white powder. powder finding the denial of motion a required reviewing favorable in the most light not we view the evidence guilty, that evi- determine whether Commonwealth in order to to the 1 he had been the defendant. Apparently was not tried with Gonzales at date. sentenced an earlier
410 21 Mass. App. Saez,
Commonwealth v. dence was sufficient to a rational trier of satisfy fact each element of the crime a reasonable beyond doubt. See Common Latimore, wealth v. (1979); Pope, Mass. Ct. Inferences drawn from the considered, also be may provided “are not they too remote to the usual according course Latimore, events.” Commonwealth s. at 676. “The infer supra . ences . . need not be necessary as as inescapable, long reasonable, are and not unwarranted” possible, because Chinn, too remote. Commonwealth v. Walter,
255, (1980). 257
It was the Commonwealth’s at trial that theory the defendant and Gonzales were in a engaged joint on the enterprise morning 28, of October order sustain a conviction on the “[t]o theory joint defendant must be to enterprise, shown have shared the crime, mental state for the and to required have assisted the in its commission.” principal intentionally Commonwealth Amaral, v. 238, 241-242 13 (1982). Mass. Ct. App. Soares, Also see 461, 470 Commonwealth v. (1979); 377 Mass. Commonwealth v. 174, 178 Griffin, (1985). Ct. Mere at the scene of the crime presence and the “failure to take affirmative to it do not steps render a liable prevent person Benders, as a 704, Commonwealth v. participant.” 708 Commonwealth v. at Pope, supra 509. Common v. wealth at Griffin, supra 178. Evidence that an accused associated with persons who committed the crime does not an inference that “justify in commis participated also] [he [its] Chinn, sion.” Commonwealth v. at supra 717. In order to conviction, a sustain must be that the defendant proof “[t]here offense, somehow in participated committing counsel or hiring otherwise ing, procuring by agreeing principal, at, to aid, stand near the scene to by, render assistance or it encouragement if became or to assist the necessary, perpe in trator an making from the scene.” Commonwealth escape Amaral, v. at 242. See Commonwealth v. supra Conroy, 333 Mass. 755 The Commonwealth contends that the 21 Mass. v. Saez.
Commonwealth a venturer acting the crime as in joint defendant participated with in his had heroin lookout while Gonzales as a however, that argues, The defendant the intent to distribute. required the level of did not rise to participation his actions did not show also that the evidence a venturer and in the heroin. he interest had any possessory others acts as a lookout while who It is clear that person convicted on a criminal can be enterprise are engaged v. at Conroy, supra theory. joint enterprise reading at A v. 509-511. Pope, supra 755. Commonwealth that in order for the Common- cases discloses the “lookout” of not finding a motion for a wealth to withstand required the defend- on evidence that merely it cannot rely places guilty, to be in association crime and shows him ant at the scene Rather, must present with principals. in the the defendant additional evidence which implicates (defendant Conroy, supra gave v. crime. See Commonwealth Drew, false statements police); (defendant that rob- (1976) had knowledge committed); Gallagher, Commonwealth v. beries were to be (1976) (same); Commonwealth Mass. App. Amaral, from scene (defendant at 243-244 fled after supra (defendant committed); v. Pope, supra *4 crime v. Mur- Contrast Commonwealth false name to gave police). 71, (no offered (1973) evidence phy, with at crime scene that defendant was present princi- except pal). defendant was part for its contention that the
As the basis relies on the evidence of a joint enterprise, and down Street that the defendant looked up King showing The claims that on two occasions. separate acts that it was the could infer from those two physical jury for the defendant’s to act as lookout Gonzales. problem, job that the evi- however, the is with Commonwealth’s argument (Common- for of detail” was “notable its lack dence presented 563, [1980]). That wealth v. Deagle, one, this where in a case such as lack is a serious weakness to the defendant’s guilt by prove the Commonwealth attempts Commonwealth Saez. of evidence of actions and looking down commonplace up street, which, alone, are and in ambiguous inconclusive nature.
The evidence indicates that the defendant looked and up down the street on two occasions. The defendant first looked and down the up street Gonzales’ during transaction with the man who arrived on the scene in an automobile.2 The Common- wealth that it was the argues defendant’s role to be on the for lookout the But there nowas evidence police. presented that that showed the defendant looked and down the street up more than once any during transaction. The minute-long defendant’s conduct equally suggests more than that nothing he realized that he was a witness to probably a crime.3
The evidence that shows the defendant later looked and down the street for a second time after he and Gonzales left the three-decker This building occurred when separated. the defendant went to the front of the while Gonzales to went the back yard concealed the bundle containing evidence, heroin. it, Again, or lack of indicated that the once, defendant looked and down the street only hardly conduct aof whose role was to be on the lookout for person There was no of evidence communication police. any be- tween the defendant and Gonzales after no separated evidence that Gonzales the defendant after rejoined he had hidden the bundle.4 2The Commonwealth present any did not the red that packet gave
that Gonzales to the person exchange money for resembled the red yard. heroin found in the might charged 94C, The defendant have been with a violation of G. L. c. 35, § § as amended St. c. 25. That statute it a makes crime any person knowingly be present where heroin is or to be in the kept company person, knowing that person possession that is in of heroin. The fact might charged might that defendant have been so have been found guilty a violation the statute does not itself mean that he was a venturer in the crime of unlawful of heroin with 94C, § intent to sell. We note G. L. c. is not a lesser included *5 94C, 32. See Commonwealth charged § offense crime. G. L. c. Therefore, Rodriguez, charge the § could still defendant with a violation 4 may It be that the defendant and immediately Gonzales were arrested Commonwealth, however, after Gonzales hid bundle. The did not present any evidence which showed when were arrested.
Commonwealth v. Saez. sum, the evidence shows that the defendant associated himself with an individual whom the defendant have may known to be in addition, of heroin. In there defendant, occasions, evidence that the on two looked one, down the street once. The issue ais close but because of the failure of the Commonwealth to facts more develop we conclude that too much left adequately, is conjecture Commonwealth, surmise. Berry decision,
Because of our there is no need for us to consider the defendant’s contention that the Commonwealth did not show that the defendant had a interest in the heroin. possessory reversed, is judgment the verdict is set aside. Judg- ment is to be entered defendant.
So ordered. Cutter, J. I would affirm. From (dissenting). the aggregate activities, concerning defendant’s observed I think an inference be drawn that he was reasonably may encouraging in the heroin participating distribution enterprise.