Com. v. Gallagher

• Citation: 357 N.E.2d 31,4 Mass.App.Ct. 661
• Parties: COMMONWEALTH v. William W. GALLAGHER.
• Decision Date: 29 November 1976
• Court: Appeals Court of Massachusetts

Page 31

357 N.E.2d 31

4 Mass.App.Ct. 661

COMMONWEALTH

v. William W. GALLAGHER.

Appeals Court of Massachusetts, Middlesex.

Argued Oct. 13, 1976.

Decided Nov. 29, 1976.

Thomas Hoffman, Manchester, for defendant.

James W. Sahakian, Sp. Asst. Dist. Atty. (Peter W. Agnes, Jr., Asst. Dist. Atty., with him), for the Com.

Before HALE, C.J., and GRANT and BROWN, JJ.

HALE, Chief Justice.

The defendant was indicted and tried together with three co-defendants (D'Alessio ¹, Mastaj, and Maley) for assault and battery with a dangerous weapon on one Elbery at a gas station in Newton. The defendant was convicted of assault. He brings this appeal under G.L. c. 278, §§ 33A--33G, claiming that the trial judge erred in denying his motion for a directed verdict, arguing that there was no evidence of his participation in a joint enterprise to commit the crime of assault.

The only question raised by a motion for a directed verdict is 'whether there was sufficient evidence of the defendant's guilt to warrant the submission of the (case) . . . to a jury,' Commonwealth v. Baron, 356 Mass. 362, 365, 252 N.E.2d 220, 222 (1969); Commonwealth v. Mangula,--- Mass.App. ---, --- ^a, 322 N.E.2d 177 (1975), and the appropriate standard of review on appeal is whether the evidence, read in its aspect most favorable to the Commonwealth, Commonwealth v. Flynn, 362 Mass. 455, 479, 287 N.E.2d 420 (1972), is such that the jury 'might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.' Commonwealth v. Vellucci, 284 Mass. 443, 445, 187 N.E. 909, 910 (1933). We conclude that the defendant's motion for a directed verdict was properly denied.

The standard for criminal liability under the joint enterprise theory is that 'guilt of the accessory is established when it is . . . shown that he intentionally assisted the principal in the commission of the crime and that he did this, sharing with the principal the mental state required for that crime.' Commonwealth v. Richards, 363 Mass. 299, 307--308, 293 N.E.2d 854, 860 (1973). The jury were warranted in finding on the basis of the Commonwealth's evidence that the defendant had engaged in a joint enterprise for the purpose of assaulting Elbery.

There was evidence at trial that the incident which gave rise to the indictment (and during which one Apodemi was shot and killed by Elbery) apparently happened as the result of two conversations between Elbery and D'Alessio on November 26, 1974, concerning some money that D'Alessio owed to Elbery. After the first conversation D'Alessio became 'very upset; during the second he and Elbery began arguing, and D'Alessio threatened to stab Elbery.

On the evening of November 29 at about 8:00 P.M. one Coughlin, a friend of Elbery, met D'Alessio, Mastaj, and the defendant by chance in a parking lot outside a local restaurant a short distance from the gas station where Elbery was then working. There Coughlin had a short conversation with D'Alessio while the defendant and Mastaj went into the restaurant. D'Alessio then followed the two into the restaurant. After stopping briefly at the gas station, where he talked with Elbery, Coughlin went home, got his gun, and returned to the gas station at about 8:45 P.M. Approximately ten minutes later a car containing D'Alessio and four companions pulled up in front of the station. The five occupants got out of the car and came towards the front door of the station. One of the four, Apodemi, carried a baseball bat, and D'Alessio had an...