41 Mass. App. Ct. 621 | Mass. App. Ct. | 1996
The defendant was convicted under G. L. c. 265, § 17, for the armed robbery of a bank while masked or disguised and was sentenced to from nine to twelve years in prison.
The defendant urges that his motion for a required finding of not guilty on the masked element of the indictment was wrongfully denied at his trial. We agree and, therefore, remand the matter to the Superior Court for resentencing based upon a conviction for unmasked or simple armed robbery. The remand is necessary because, although the sentence that was imposed falls within the limits of the statute for unmasked or undisguised armed robbery, the judge may well have considered the masked aspect of the verdict when imposing the sentence. Compare Commonwealth v. Eaton, 2 Mass. App. Ct. 113, 119 (1974).
The terms “masked” and “disguised” in G. L. c. 265, § 17, are given no special or technical definitions and, therefore, carry only their common and everyday meanings, such as those found in any standard dictionary. See Commonwealth v. Flynn, 362 Mass. 455, 478 (1972). See also Darneal v. State, 14 Okla. Crim. 540, 547 (1917). In the Darneal case, the court cited numerous dictionary definitions for one of those terms:
“ ‘[D]isguise’ means . . . [t]o change the guise or appearance of, especially to conceal by an unusual dress; to hide by a counterfeit appearance .... The noun ‘disguise’ means ... [a] dress or exterior put on to conceal or deceive . . . . ” Ibid.
The American Heritage Dictionary of the English Language (3d ed. 1992) defines “disguise” as an effort “[t]o modify the manner or appearance of in order to prevent recognition,” or “[t]o conceal or obscure by . . . false show,” or “[c]lothes or accessories worn to conceal one’s true identity.” Id. at 533. “Mask” is defined as a noun: “[a] covering worn on the face to conceal one’s identity”; or as a verb: “to cover in order to conceal, protect, or disguise . . . [t]o conceal one’s real personality, character, or intentions.” Id. at 1105.
In the final analysis, though, the question “[w]hether. . . a person is disguised within the meaning of the [particular] provision [] of law must depend largely upon the facts of each particular case .... It is impossible ... to give any fixed definition [for the terms masked or disguised] that would apply to all . . . facts and circumstances. . . .” Darneal v. State, 14 Okla. Crim. at 547.
Further, the band-aid worn by the defendant in this case was not of such size as to disguise or mask the defendant. Contrast Darneal v. State, 14 Okla. Crim. at 547 (defendant had wrapped cloth and rags around a large portion of his face and head). Moreover, no evidence appears in the record that the band-aid masked or concealed any identifying or conspicuous mark or blemish upon the defendant’s cheek. Indeed, the only evidence of any such mark upon the defendant’s face (other than prominent acne or acne scars) was that it was located on the opposite cheek. In short, evidence merely that the defendant wore a band-aid could not have supported a reasonable inference that, in so doing, he intended or attempted to hide a revealing facial feature.
The Supreme Judicial Court had occasion in Commonwealth v. Flynn, 362 Mass, at 478, to examine the “while masked or disguised” language of G. L. c. 265, § 21, and rejected an interpretation that the statute requires that a defendant’s facial features be “so totally cover [ed] or concealed] . . . that the wearer cannot be identified or recognized. The statute applies equally to the inept or bungling masquerader as it does to the skilful one.” Ibid. Similarly, in Darneal v. State, 14 Okla. Crim. at 547, the court held that
The court in Commonwealth v. Flynn, supra, also pointed approvingly to the trial judge’s charge to the jury: “It is enough if the [face’s] true character is screened or concealed . . . [to] such an extent that recognition of it is materially and substantially obstructed.” Ibid. The evidence in the case before us was insufficient that the baseball hat, sunglasses, or band-aid “materially and substantially obstructed” recognition of the defendant. Other than the defendant’s wearing the items we have described, the Commonwealth produced no evidence from which the jury reasonably could have inferred an attempt on his part to mask, disguise, or artificially distort his features. The defendant’s motion for a required finding of not guilty of being masked while committing the crime should have been allowed.
2. Other claims. The defendant claims ineffective assistance of counsel in his trial counsel’s failure to object to what he now claims was an unrepresentative jury and to object to the prosecutor’s peremptory challenge dismissing a black juror from the jury venire. The defendant also contends that the photographic arrays shown to the robbery victims were impermissibly suggestive and, therefore, identification evidence should have been excluded, and that he was prejudiced by a forty-nine month delay in receiving trial transcripts from the Commonwealth. None of these claims requires reversal of the defendant’s conviction.
The claim as to the racial composition of the jury panel fails for several reasons. First, the defendant has made no showing that the juiy panel or venire was not drawn from a cross-section of the population of Bristol County wherein the crime was committed; nor does he present any evidence of the actual percentage of black persons within that county. There also was no evidence (other than the hedged statement at sidebar made by the defendant’s trial counsel) that the dismissed juror, in fact, was the only black person in the jury panel. See Commonwealth v. Leitzsey, 421 Mass. 694, 700 (1996), where the defendant failed to show that black persons residing in Berkshire County had been systematically excluded from the jury selection process or that representation of black persons in jury venires drawn from that county was not fair, reasonable, or proportional.
Failure to object to the peremptory challenge does not support the claim of ineffective assistance of counsel. Even if proper and timely objection had been made to the prosecutor’s peremptory challenge and the juror’s dismissal,
As with a number of ineffective assistance claims, we are here asked to engage in multiple layers of speculation in order to reach the bottom line whether, as a result of his trial counsel’s omissions, the defendant likely was deprived of “an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). First, we do not know for sure whether the challenged juror was the only black panel member who was available that day. If he were, defense counsel could have made a prima facie showing that the challenge was racially motivated. See Commonwealth v. Harris, 409 Mass, at 463, 466. If he were not, then counsel’s showing of possible impropriety might have come up short. In any event, even if counsel had made a prima facie showing of impropriety, we cannot say with certainty that the prosecutor more likely than not would have been unable to justify his challenge on neutral grounds. In short, we cannot conclude on these facts that the defendant likely was deprived of an otherwise available substantial ground of defense because of his trial counsel’s failure to object to the prosecutor’s peremptory challenge.
b. Identification evidence. The defendant moved prior to trial to suppress identifications made by several witnesses, because his photograph was the only one of some thirteen individual black males to appear in two successive arrays. The defendant contends that, taken together, the photographic ar
“[Duplication of a defendant’s photograph in one or more arrays [is] not. . . sufficient by itself to compel the suppression of a resulting identification.” Commonwealth v. Wallace, 417 Mass. 126, 129-130 (1994), quoting from Commonwealth v. Paszko, 391 Mass. 164, 169 (1984). Other than pointing to inclusion of his picture in both photographic arrays, the defendant cites no other factors that impermissibly, or unconstitutionally, tainted the identification evidence. The defendant’s motion to exclude that evidence was properly denied.
c. Delay in receiving written trial transcripts. The defendant waited forty-nine months to receive written trial transcripts for this appeal from the time he first requested them from the Commonwealth. At oral argument, the Commonwealth was unable to satisfactorily explain the delay other than to attribute the problem to the court reporter service. The Commonwealth assured the panel that steps have now been taken which one hopes will prevent the problem of long delays such as this from arising in the future.
The defendant contends that this unconscionable delay violated his appellate rights. It is settled that the guaranty of a speedy trial found in the Sixth Amendment to the United States Constitution and in art. 11 of the Massachusetts Declaration of Rights does not apply to the appellate process. Commonwealth v. Hudson, 404 Mass. 282, 284 (1989). In some instances, however, a defendant’s due process rights may be implicated if it is shown that the Commonwealth has deliberately blocked the defendant’s appellate rights or if the defendant has suffered “inordinate and prejudicial delay” in exercising those rights. Ibid.
The defendant has not shown evidence of intentional or deliberate moves by the Commonwealth calculated to interfere with his right to prosecute an appeal of his conviction. The delay appears due more to bureaucratic inattention or ineptitude than to intentional scheming by the Commonwealth. The defendant also has suffered no palpable prejudice in pursuing a vigorous and effective appeal. A new trial has not been ordered. Hence, the defendant cannot argue that the
The judgment on count two of the indictment is vacated, and the verdict insofar as it reflects a conviction of armed robbery while masked or disguised is set aside (the verdict shall stand insofar as it reflects a conviction of armed robbery). The matter is remanded to the Superior Court for resentencing on the offense of simple armed robbery.
So ordered.
The defendant was indicted on three counts of armed robbery while masked. He was tried and acquitted on the first count, but was tried and found guilty on the second count, which is before this court. He pleaded guilty on the third count and was sentenced to from eight to twelve years’ imprisonment. The sentences on the second and third counts are being served concurrently.
To our knowledge, Massachusetts is the only State in which the wearing of a mask or disguise; or the attempt to conceal one’s facial features, is, by statute, an aggravating factor to the crime of armed (or unarmed) robbery. A handful of States add a “masked” or “disguised” element to certain other named crimes. See, e.g., Ill. Comp. Stat. c. 720, § 5/10-2(4) (1994) (aggravated kidnaping); Minn. Stat. § 609.735 (1994) (public misconduct or nuisance); N.M. Stat. Ann. §§ 30r3-2 (assault), 30-3-9 (assault on school employee), 30-22-22 (assault on peace officer) (Michie 1994); Okla. Stat. tit. 21, §§ 1302 (wearing of mask while trespassing considered prima facie evidence of intent to commit felony inside), 1303 (assault) (1991); S.C. Code Ann. § 16-7-110 (Law. Co-op. 1985) (wearing of mask, robe, or disguise while demanding admission or entrance into another’s dwelling).
The defendant in Darneal argued the identical point as the defendant in Flynn, namely that, unless the disguise is so successful as to prevent identification, the statute cannot be applied. The Darneal court reduced that argument to its logical and absurd end point: the statute would be rendered meaningless and without effect, as no defendant could ever be prosecuted under it unless he had gone unrecognized and unidentified as the perpetrator. See also Annot., What amounts to disguise within criminal law, 1 A.L.R. 642 (1919), opining that the Darneal court’s conclusion that the disguise does not have to be successful is sound; otherwise, the purpose of the statute to impose a more severe penalty when a mask or disguise is worn would go unfulfilled.
Defense counsel made a belated (and unsuccessful) attempt to have the dismissed juror returned to the venire.