Com. v. Amaral

• Citation: 13 Mass.App.Ct. 238,431 N.E.2d 941
• Parties: COMMONWEALTH v. Marianne AMARAL.
• Decision Date: 25 February 1982
• Court: Appeals Court of Massachusetts

Page 941

431 N.E.2d 941

13 Mass.App.Ct. 238

COMMONWEALTH v. Marianne AMARAL.

Appeals Court of Massachusetts, Bristol.

Argued Oct. 16, 1981.

Decided Feb. 25, 1982.

Margaret Van Deusen, Boston, for defendant.

Phillip L. Weiner, Asst. Dist. Atty., for the Commonwealth.

Before PERRETTA, ROSE and DREBEN, JJ.

ROSE, Justice.

The defendant appeals from a conviction on an indictment charging armed robbery while masked (G.L. c. 265, § 17). She assigns as error the denial of her motion for a required finding of not guilty. ¹ We affirm the judgment.

In reviewing the denial of a motion for a required finding of not guilty in a criminal case, we consider whether the evidence, when viewed in the light most favorable to the Commonwealth (Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975) ), and with permissible inferences therefrom, was sufficient with respect to each essential element of the offense to have "satisfied a rational trier of fact of each such element beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 678, 393 N.E.2d 370 (1979). Commonwealth v. Appleby, 380 Mass. 296, ---, Mass.Adv.Sh. (1980) 867, 882 n. 10, 402 N.E.2d 1051. Commonwealth v. Casale, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 1711, 1712, 408 N.E.2d 841. Commonwealth v. Kenneally, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1980) 1267, 1268, 406 N.E.2d 714. Commonwealth v. Core, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 182, 183, 415 N.E.2d 248. "(I)t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense." Commonwealth v. Latimore, supra, 378 Mass., at 677, 393 N.E.2d 370. Inferences drawn from facts or circumstances need not be necessary, but only reasonable, possible, and not unwarranted because too remote. Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642 (1968), and cases cited. Commonwealth v. Young, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 280, 296, 416 N.E.2d 944, quoting from Commonwealth v. Best, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 2039, 2049, 411 N.E.2d 442. Commonwealth v. Walter, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1980) 1379, 1380-1381, 406 N.E.2d 1304, citing Commonwealth v. Chinn, 6 Mass.App. 714, 716, 383 N.E.2d 90 (1978). On these standards we summarize the evidence.

An employee of the Tip Top Variety Store on Rivet Street in New Bedford testified that about 7:30 P.M. on November 5, 1980, he observed two men outside the store. One man wore a tan jacket, a white and red striped hat "almost like a ski mask," and was "just hanging around, fooling around." His suspicions aroused, the employee called the police, but the men were no longer in the area when the officers arrived. After the police left, the two men were again observed to pass by the store. One of them looked directly in the door. The police were again notified.

The proprietor of Jimmy's Variety Store, located on Rivet Street two doors down from the Tip Top Variety Store, testified that at approximately 8:30 P.M. that same night, two men entered the store and demanded money from him. One man wore a white ski mask, with a red stripe, and a blue jacket. The other wore dark clothes and a blue ski mask. This second man was later identified as Stephen Trezon. He carried a .22 caliber revolver which he pointed at the proprietor's face. After Trezon had picked up money from a drawer of the cash register, the proprietor reached for his own .38 caliber revolver and shot Trezon, fatally wounding him. The other man, later identified as Radames Hernandez, fled; he and the defendant were apprehended approximately four hours later as they sat together in Trezon's parked car in front of a cafe. ² The defendant was then sitting in the driver's seat. On the floor of the passenger side was a bag containing a tweed hat, a wallet containing Trezon's identification, a notebook, a set of keys, an electronic beeper, some change, and personal papers.

The defendant did not testify at her trial. Police officers testified that she went willingly with them to the police station, although she was not placed under arrest at that time. At the station she was advised of her rights and signed a waiver form. Her answers to police questions were written down by an officer. She stated that she had been with Trezon and Hernandez during the late afternoon of November 5, that they first stopped at the residence of Trezon's estranged wife (the defendant's sister) in Fairhaven, returned Trezon's mother's car to Mattapoisett, and picked up Trezon's car (the stolen Mustang described in note 2 supra ). With Trezon at the wheel, Hernandez in the passenger seat, and Amaral in the back seat, the three drove to New Bedford where they dropped off Trezon's two children, and then drove around the South End of New Bedford for about an hour, circling the block in the area of Rivet and County Streets, where a complex of stores was located, "a couple of times." The car was then parked several blocks away, and Trezon and Hernandez alighted, leaving the defendant in the car. A few minutes later, Hernandez ran back to the car and said to the defendant, "Let's get out of here. Steve got shot. The guy had a gun." The defendant then drove the car to her sister's residence in Fairhaven, staying there about twenty minutes. Hernandez changed his jacket en route. From Fairhaven the pair returned to New Bedford, eventually going to Rebello's Cafe; they were apprehended outside the cafEe at approximately 12:30 A.M. Under further police questioning, Amaral said that she had not overheard any conversation between Trezon and Hernandez about attempting to rob Jimmy's Variety Store, nor had she seen any items such as a stocking mask or a firearm.

It is settled that mere association with the perpetrators of a crime, before and after its commission, will not establish a defendant's guilt as a principal. Commonwealth v. Perry, 357 Mass. 149, 151, 256 N.E.2d 745 (1970). "A contrary holding would be tantamount to introducing into our law a doctrine of guilt by association, a policy which we decline to adopt." Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965). Commonwealth v. Chinn, 6 Mass.App. at 717, 383 N.E.2d 90. Nor will "mere presence at the commission of the wrongful act and even failure to take affirmative steps to prevent it ... render a person liable as a participant." Commonwealth v. Benders, 361 Mass. 704, 708, 282 N.E.2d 405 (1972). Commonwealth v. Michel, 367 Mass. 454, 457, 327 N.E.2d 720 (1975). Commonwealth v. Flowers, 1 Mass.App. 415, 419, 298 N.E.2d 898 (1973). Presence together with knowledge of the planned act is insufficient by itself to warrant conviction of a person for the wrongful acts of another. Commonwealth v. Casale, --- Mass. at ---, Mass.Adv.Sh. (1980) at 1717, 408 N.E.2d 841, citing Commonwealth v. Soares, 377 Mass. 461, 471, 387 N.E.2d 499 (1979). Mere knowledge that a crime is planned, "even when coupled with subsequent concealment of the completed crime, does not make one guilty ... as a principal to the crime about which he has knowledge." Commonwealth v. Perry, supra, 357 Mass. at 151, 256 N.E.2d 745. Commonwealth v. Murphy, 1 Mass.App. 71, 77, 294 N.E.2d 558 (1973).

To sustain a conviction on the theory of joint enterprise, the defendant must be shown to have shared the mental state required for the crime, and to have assisted the principal intentionally in its commission. Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973), and authorities cited. Commonwealth v. Funches, 379 Mass. 283, ---, Mass.Adv.Sh. (1979) 2559, 2570, 397 N.E.2d 1097. Commonwealth v. Gallagher, 4 Mass.App. 661, 662, 357 N.E.2d 31 (1976). Commonwealth v. Chinn, supra, 6 Mass.App. at 716, 383 N.E.2d 90. There must be proof that the defendant somehow participated in committing the offense, by counseling, hiring or otherwise procuring the principal, by agreeing to stand by, at, or near the scene to render aid, assistance or encouragement if it became necessary, or to assist the perpetrator in making an escape from the scene. Commonwealth v. Perry, 357 Mass. at 151, 256 N.E.2d 745. Commonwealth v. Chinn, supra, 6 Mass.App. at 716, 383 N.E.2d 90. Thus, while the Commonwealth need not show that the defendant "participate(d) in the actual perpetration of the crime," Commonwealth v. Soares, supra 377 Mass. at 472, 387 N.E.2d 499, it must show that the defendant somehow participated in the venture to the extent that she sought to make it succeed. Commonwealth v. Benders, supra, 361 Mass. at 707-708, 282 N.E.2d 405. Commonwealth v. Chinn, supra, 6 Mass.App. at 716, 383 N.E.2d 90.

Because the Commonwealth neither showed nor contended that the defendant was an active perpetrator of the robbery, her conviction must stand, if at all, on the...