Com. v. Barry

• Citation: 397 Mass. 718,493 N.E.2d 853
• Parties: COMMONWEALTH v. Joseph A. BARRY.
• Decision Date: 12 June 1986
• Court: United States State Supreme Judicial Court of Massachusetts

Page 853

493 N.E.2d 853

397 Mass. 718

COMMONWEALTH v. Joseph A. BARRY.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 3, 1986.

Decided June 12, 1986.

Stephen Hrones, Boston, for defendant.

David B. Mark, Asst. Dist. Atty., for the Com.

WILKINS, LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

Joseph A. Barry was tried on an indictment charging him with murder in the first degree and on three indictments charging him with armed robbery. ¹ The jury returned verdicts of not guilty on the murder indictment and guilty on the indictments for armed robbery. Barry appealed his convictions, and we transferred the case to this court. As grounds for his appeal, Barry claims that (1) the trial judge erred in denying the defendant's motion for a required finding of not guilty; (2) the judge erred in that he violated rule 6 of the Rules of the Superior Court (1974) by requiring the defendant to exercise his peremptory challenges before all the jurors had been declared indifferent; (3) the judge erred in refusing to instruct the jury that, if they found the defendant not guilty on the charge of murder, they must acquit him on the indictments for armed robbery. We hold that there was no error.

A. Required finding of not guilty. Barry claims that the judge should have allowed his motion for a required finding of not guilty, made at the close of the Commonwealth's case. He argues that the Commonwealth failed to introduce evidence from which a rational trier of fact could find, beyond a reasonable doubt, all the elements of the crime of armed robbery. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

In our review of the denial of a defendant's motion for a required finding of not guilty, we follow the requirement of the Supreme Court of the United States as stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and quoted in Commonwealth v. Latimore, supra at 677-678, 393 N.E.2d 370: " '[The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis in original). Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979) (five to three decision). Thus, to sustain the denial of a directed verdict, it 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; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt."

Barry contends that the Commonwealth did not produce sufficient evidence that he knowingly encouraged or assisted others in the commission of the crime and thus shared the requisite criminal intent. ² See Commonwealth v. Brown, 392 Mass. 632, 638-639, 467 N.E.2d 188 (1984); Commonwealth v. Watson, 388 Mass. 536, 544-545 n. 7, 447 N.E.2d 1182 (1983). We have reviewed the record in this case, and we summarize the evidence.

Edward J. White testified as follows. In the spring of 1981, one Carlos Mesa talked with Martin McCauley and White about robbing the Casa Romero restaurant on Gloucester Street in Boston. They made several dry runs. The night of June 26--June 27, 1981, McCauley and White met the defendant, Joseph Barry, at the Mission Hill housing project. Barry, McCauley, and White went to a Jamaica Plain apartment shared by McCauley and White. White retrieved two guns from underneath the kitchen stove, wiped them with a cloth to remove fingerprints, and put them in a bag. At some time, Mesa joined the trio. Mesa decided he did not want to take part in the robbery. The four men drove in McCauley's automobile to the Forest Hills MBTA station to drop off Mesa. From Forest Hills, McCauley, White, and Barry drove back to the Mission Hill project because McCauley's automobile was not running properly.

They decided to use Barry's van to travel to the restaurant. The van was parked in a parking lot near the Mission Hill project. When they arrived at the parking lot, McCauley and White each took a pair of gloves from the trunk of McCauley's automobile. The three men then got into Barry's van. By that time, White had taken one of the guns out of the bag and put it in his waistband under his coat; McCauley had the other gun. Barry drove the van to the Back Bay area following the directions of McCauley and White.

Casa Romero was at one end of an alley running between Gloucester and Hereford Streets. White and McCauley directed Barry to the Hereford Street end of the alley. Barry asked the pair what they wanted him to do; they told him, "Just sit there and wait." White and McCauley left the van, walked down the alley to the restaurant and, after waiting for the last patrons to leave, entered the restaurant. White held two employees at gunpoint and took their money, while McCauley took the restaurant receipts from a third employee. The pair herded the three employees out of the restaurant.

White's testimony continued:

THE PROSECUTOR: "And when you got out into that alleyway, what did you do?"

THE WITNESS: "I was just standing there wanting to leave. I wanted to leave. We was [sic ] standing there too long."

THE PROSECUTOR: "What did Marty McCauley do?"

THE WITNESS: "Shot a guy in between the eyes."

THE PROSECUTOR: "Who was the guy he shot?"

THE WITNESS: "Carlos Madariaga."

....

THE PROSECUTOR: "After Marty McCauley shot Carlos Madariaga between the eyes, what did you do?"

THE WITNESS: "I threw up all over my sneakers."

THE PROSECUTOR: "Then what did you do?"

THE WITNESS: "I ran."

....

THE PROSECUTOR: "At some point, did you run to Joe Barry's van?"

THE WITNESS: "Yes, I did."

When they tried to start the van, it crashed into a parked automobile. White and McCauley both fled on foot. White saw Barry the next day.

THE PROSECUTOR: "What did he tell you happened?"

THE WITNESS: "He told us that we killed someone."

Another witness, David Horne, a student at the Massachusetts Institute of Technology living at 32 Hereford Street, Boston, testified about Barry's activities on Hereford Street in the early morning hours of June 27, 1981. Horne saw Barry in a van double-parked on Hereford Street. Horne observed the van over a period of about forty-five minutes. He observed Barry sitting behind the wheel and walking up and down the sidewalk while the van's motor was running. About thirty minutes after first noticing the van, Horne saw that it had been moved across the mouth of the alley. Fifteen to twenty minutes later, Horne went to bed, and in a few minutes, about 2 A.M., he heard a crash. He investigated and found that the van had struck an automobile parked on the side of Hereford Street.

Barry says that the evidence cannot support a finding, beyond a reasonable doubt, that he knowingly assisted in the commission of the armed robberies. He relies on the testimony of Edward White that "Joe Barry was giving us a ride. He didn't know what he was doing." White made similar statements at other points in his testimony.

There is no question that the evidence demonstrates that Barry assisted White and McCauley. Therefore the element to be proved is that Barry "knowingly" assisted. "When, as here, knowledge is an essential element of an offence, it may be, and generally is, proved by circumstantial evidence; and it may be inferred from a great variety of circumstances." Commonwealth v. Altenhaus, 317 Mass. 270, 273, 57 N.E.2d 921 (1944). Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 2092-2093, 85 L.Ed.2d 434 (1985). ³ See Commonwealth v. Rojas, 388 Mass. 626, 629-630, 447 N.E.2d 4 (1983); Commonwealth v. Watson, 388 Mass. 536, 547, 447 N.E.2d 1182 (1983). The circumstantial evidence presented in this case was sufficient to permit a rational trier of fact to draw the inference that Barry knew that he was assisting in the perpetration of an armed robbery. The trial judge found that the evidence could have satisfied a rational trier of fact of the element of knowledge beyond a reasonable doubt. ⁴ We agree. The judge did not err in denying the defendant's motion for a required finding of not guilty.

B. Procedure for peremptory challenges. Barry requested that the procedure for challenging prospective jurors be conducted pursuant to rule 6 of the Rules of the Superior Court (1974). ⁵ Under that procedure, challenges for cause would be acted on until a full jury had been found to stand indifferent. Only then would the parties use their peremptory challenges. See K.B. Smith, Criminal Practice and Procedure § 1720 (1983). The trial judge did not grant Barry's request, but instead required the Commonwealth and the defendant to exercise their rights of peremptory challenge as to each juror one-by-one as the jurors were found individually to be indifferent. See K.B. Smith, supra at § 1721. Barry claims that the judge's denial of his request conflicts with the holding of Commonwealth v. Barrows, 391 Mass. 781, 784, 464 N.E.2d 66 (1984), and requires reversal. See Commonwealth v. Brown, 395 Mass. 604, 606, 607, 481 N.E.2d 469 (1985) (judge's failure to follow procedures set forth in rule 6 constituted reversible error without showing of prejudice to defendant).

The sole issue on the appeal in Commonwealth v. Barrows, supra, was the propriety of the trial judge's refusal to follow the procedure of rule 6. We held that "[r]ule 6 is unambiguous in its direction and it allows an exception only in a trial of an indictment for a capital crime or in [a] case in which a judge 'specially otherwise ordered.' Neither exception is present here. The language of rule 6 is obligatory and, therefore, must be followed." Id. The Commonwealth argues that the rule was followed in this case because this was "a trial of an indictment for a capital crime."

The language of the rule itself...