Com. v. Cook

• Decision Date: 04 November 1980
• Citation: 411 N.E.2d 1326,10 Mass.App.Ct. 668
• Parties: COMMONWEALTH v. Dennis E. COOK.
• Court: Appeals Court of Massachusetts

Page 1326

411 N.E.2d 1326

10 Mass.App.Ct. 668

COMMONWEALTH v. Dennis E. COOK.

Appeals Court of Massachusetts, Hampden.

Argued Sept. 8, 1980.

Decided Nov. 4, 1980.

Roy H. Anderson, Springfield, for defendant.

Henry L. Rigali, Asst. Dist. Atty., for Commonwealth.

Before ARMSTRONG, BROWN and GREANEY, JJ.

GREANEY, Justice.

The defendant was tried before a jury in the Superior Court on an indictment charging conspiracy to commit rape. His motion for a required finding of not guilty (Mass.R.Crim.P. 25, 378 Mass. --- (1979)), was filed and denied at the conclusion of the Commonwealth's case, and he was subsequently convicted and sentenced on the indictment. On appeal he claims error in the denial of the motion. We hold that the evidence introduced up to the time the Commonwealth rested (Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976); Commonwealth v. Rhoades, --- Mass. --- ^a, 401 N.E.2d 342 (1980)) was insufficient to warrant his conviction of conspiracy and that, as a result, the judgment must be reversed. A summary of the Commonwealth's evidence follows.

At approximately 8:00 P.M. on the evening of July 16, 1977, the victim, age seventeen, went to Chicopee to visit some friends and to see her boyfriend. Upon discovering that her friends were not at home, she proceeded to the housing project where her boyfriend resided. As she passed the area of the project office, the defendant and his brother Maurice Cook attempted to engage her in conversation. Not knowing the Cooks, she spurned an invitation to join them and instead walked to her boyfriend's residence. After ascertaining that he was not at home, she reversed her route, intending to stay at her friends' home to await their return. As she passed the office area for the second time, she accepted the Cooks' renewed invitation to socialize, and she sat with the two brothers on a platform talking for approximately forty-five minutes. The area apparently was used as a common meeting point for informal socializing, and while the victim was there several other people were in the vicinity, one of whom recognized the victim and called her by name. There was evidence that the Cooks smoked marihuana and drank beer but that the victim declined to smoke marihuana because her boyfriend disliked her "flying high." She did take a drink of beer. The defendant told her that he and his brother were caring for a nearby home whose occupants were away on vacation. Because the victim was having difficulty remembering their names, the defendant told her that he worked at Smith and Wesson. He also showed her his plant identification card with his picture on it, and his brother informed her of his employer and his address and displayed his driver's license.

About 9:00 P.M. Maurice Cook indicated that he was out of cigarettes and suggested that the three walk to a convenience store located about a minute and a half away. The victim agreed. To reach the store, the trio proceeded along the street to a narrow path or trail located behind the project office. This path led down a hill through a wooded area to the rear of a well-lit service station adjacent to the convenience store. As they "walk(ed) towards the path" single file (with Maurice in front, the victim in the middle and the defendant in the rear), the victim "slipped ... fell or something." She sat on the ground for a few seconds laughing when "Maurice turned around and jumped on me ... and told me I was going to love it." After she screamed, Maurice covered her mouth with his hand, took off his belt and gave it to the defendant seated nearby. Maurice then scratched her with a stick or blunt object and said, "No blood, no blood." The defendant was overheard laughing and saying, "The bitch doesn't want to bleed, we'll make her bleed." Maurice then forcibly raped her. During the assault the victim lost consciousness. She awoke about 11:00 P.M. and went directly to her friends' home. The incident was subsequently reported to the police, and the Cooks were arrested. ¹ Maurice was indicted for rape and the defendant, in addition to the conspiracy indictment, was charged as an accessory to the rape. G.L. c. 274, § 2, as amended by St.1973, c. 529, § 1. ²

1. A combination of two or more persons who seek by some concerted action to accomplish a criminal act may be punished as a conspiracy. Commonwealth v. Hunt, 4 Met. 111, 123 (1842). Attorney General v. Tufts, 239 Mass. 458, 493, 131 N.E. 573 (1921). It is essential to a conviction that the Commonwealth prove the existence of an agreement, because "(t)he gravamen of ... conspiracy ... is the unlawful agreement." Commonwealth v. Soule, 6 Mass.App. --- ^b, 384 N.E.2d 235 (1979). See Note, Agreement as an Element of Conspiracy, 23 Va.L.Rev. 898, 910 (1937) ("(T)he fundamental fact (is) that there is an agreement to be proved"). "It must (also) be shown that the defendant was aware of the objective of the conspiracy which was alleged." Commonwealth v. Nelson, 370 Mass. 192, 196, 346 N.E.2d 839 (1976); Commonwealth v. Gill, 5 Mass.App. 337, 348, 363 N.E.2d 267 (1977), and cases cited. Proof of a conspiracy may rest entirely or mainly on circumstantial evidence (Commonwealth v. Stasiun, 349 Mass. 38, 50, 206 N.E.2d 672 (1965)), but "some record evidence" is not enough (Commonwealth v. Latimore, 375 Mass. ---, --- ^c, 393 N.E.2d 370 (1979); Commonwealth v. Dellinger, --- Mass.App. ---, --- ^d, 409 N.E.2d 1337), and an acquittal must be ordered if any essential element of the crime is left to surmise, conjecture or guesswork. Commonwealth v. Kelley, 359 Mass. 77, 88, 268 N.E.2d 132 (1971). Commonwealth v. Duffy, 4 Mass.App. 655, 659, 357 N.E.2d 330 (1976).

We are of the opinion that the evidence, tested against the foregoing principles, was insufficient to establish a conspiracy. The circumstances under which the victim and the Cooks met and socialized were not indicative of a preconceived plan between the defendant and his brother to commit a sexual assault. Rather, the meeting and subsequent engagement were consistent with a chance social encounter common between young persons. The area where the group stayed prior to setting out for the store was used frequently as a gathering spot, and there was no evidence either that the Cooks attempted to conceal from others the fact that they were with the victim or that they consciously attempted to mislead her as to their identities. The evidence cuts directly against any such inference because of the special efforts made by the defendant and his brother to identify themselves by disclosing their names and places of employment, and by showing the victim their photographs. We do not think it plausible to infer that this conduct was an attempt by the Cooks to lull the victim into a false sense of security. Moreover, since all the conversation at the platform occurred in the victim's presence, the jury could not have properly inferred that a clandestine plan to commit an assault had been formulated during that period. While openness will not automatically sanitize a conspiracy, highly visible conduct has to be considered inconsistent with the shadowy environment which usually shrouds the crime. The purpose for leaving the area was on its face innocuous and was suggested by Maurice, not the defendant. While the route chosen was arguably suspicious, the evidence established that it also was selected by Maurice, not the defendant. There was evidence that the path provided a short, reasonably direct route to a gasoline station which was nearby, well-lighted, and visible from the crest of the hill. We do not think that the events up to the time the victim fell were sufficient to establish a criminal agreement or to warrant the jury in inferring the state of facts that the Commonwealth claims to have existed.

Nor was the prosecution's case strengthened by the circumstances surrounding the assault itself. There was no evidence that the defendant (or his brother for that matter) had anything to do with the victim's falling to the ground. The fact that Maurice's attack began immediately after the victim found herself in a compromising situation suggests spontaneity of action on his part rather than the purposeful execution of a predetermined plan. From that point on, the defendant's conduct fits the classic paradigm of an accomplice adding encouragement to a crime in progress. The fact that the defendant may have aided and abetted the crime does not, as will be discussed more fully in part 2 of this opinion, establish a conspiracy, particularly where the evidence shows that prior planning is not an inherent facet of the crime. "(N)either association with (a criminal) nor knowledge of illegal activity constitute proof of participation in a conspiracy." Roberts v. United States, 416 F.2d 1216, 1220 (5th Cir. 1969).

In reaching our conclusion, we are mindful of the principle that proof of a tacit agreement to commit a crime may be enough to establish a conspiracy. See Perkins, Criminal Law 615 (2d ed. 1969). But in this case it is just as reasonable to conclude that the defendant became implicated in the crime as an accomplice after it had commenced without any advance knowledge that it was to occur, as it is to infer that the minds of the parties had met in advance "understandingly, so as to bring about an intelligent and deliberate agreement to ... commit the offense charged." State v. Cole, 107 S.C. 285, 288-289, 92 S.E. 624 (1917). "(W)hen the evidence tends to sustain either of two inconsistent propositions, neither ... can be said to have been established by legitimate proof." Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965), and cases cited.

2. The remaining question raised by the Commonwealth's argument is whether the defendant can be convicted of conspiracy solely on the evidence tending to show his complicity as an accomplice in the commission of the substantive crime. We think on the evidence in this...