Com. v. Griffin

• Citation: 19 Mass.App.Ct. 174,472 N.E.2d 1354
• Parties: COMMONWEALTH v. John A. GRIFFIN (and a companion case 1 ).
• Decision Date: 27 February 1985
• Court: Appeals Court of Massachusetts

Page 1354

472 N.E.2d 1354

19 Mass.App.Ct. 174

COMMONWEALTH v. John A. GRIFFIN (and a companion case ¹).

Appeals Court of Massachusetts,

Middlesex.

Argued Oct. 5, 1984.

Decided Jan. 9, 1985.

Further Appellate Review Denied Feb. 27, 1985.

Virginia Lee, Boston, for John A. Griffin.

Steven J. Rappaport, Boston, for Michael Griffin.

Kevin J. Ross, Asst. Dist. Atty., for the Commonwealth.

Before SMITH, CUTTER and WARNER, JJ.

SMITH, Justice.

As a result of an incident that occurred in Billerica on August 1, 1982, David P. Emanouil was killed, and John D. Gilbride was severely injured. The defendants, John A. Griffin (John) and Michael Griffin (Michael), father and son, were charged with various crimes including murder in the first degree of Emanouil. The jury found both defendants guilty of murder in the second degree. In addition, both defendants were convicted of armed assault with intent to murder Emanouil and Gilbride and assault and battery on both victims by means of a dangerous weapon. The dangerous weapon involved in the crimes was the motor vehicle driven by John. The defendants allege several errors by the judge which they claim require reversal of their convictions. Neither defendant has claimed the same error as the other. Therefore we analyze the case of each defendant individually.

I. Michael Griffin's Claims of Error.

A. Required findings of not guilty. Michael contends that the judge erred in denying his motions for required findings of not guilty. We recite the main facts as they could have been found by the jury. On August 1, 1982, at about 6:00 P.M., Gilbride was riding on the back of a motorcycle driven by Emanouil along Route 129 in Chelmsford. Their ride took them to a bridge where Route 129 crosses Route 3. As the motorcycle was crossing the bridge, Gilbride noticed in front of them an automobile, described as a Nova, slow down and pull over to the right. The passenger in the automobile, later identified as Michael, was pointing at the motorcycle and appeared to be saying something to his father, John, the operator. John was smiling. Michael moved his pointing finger and his eyes, tracking the motorcycle's course as it passed the automobile. As soon as the motorcycle passed their automobile, John pulled back onto the road and began to pursue the motorcycle on Route 129. John eventually pulled the car up along the right hand side of the motorcycle. At this point, Michael was sitting on the window of the door of the automobile and leaning over its roof toward the motorcycle. He was pointing and screaming something at Emanouil and Gilbride. John, still smiling, made repeated attempts to force the motorcycle into oncoming traffic. At one point the automobile came close enough to make contact with Gilbride's leg. Emanouil put his foot out and pushed off against the automobile, accelerated, and pulled out in front of it.

The motorcycle travelled along Route 129 to its intersection with Route 3A in Billerica, with the Nova right behind it. Emanouil took a right turn and headed south on Route 3A. He then drove into a gas station. The Nova followed the motorcycle into the gas station. John was still smiling, and Michael was still sitting on the window yelling and pointing at the motorcycle. Gilbride got off the motorcycle, took off his helmet, and faced the automobile and its occupants. Michael screamed over and over again at the victims, "You're dead," and then either, "We're going to kill you," or "I'm going to kill you." The Nova started to move toward the motorcycle. Emanouil told Gilbride to get back on the motorcycle and they rode north along Route 3A. Emanouil then turned into the parking lot of a cocktail lounge. The defendants almost went by the parking lot, but John, seeing the motorcycle, came to a stop and made a quick turn into the same parking lot. After a confrontation, the motorcycle left the parking lot, chased by the automobile. There were several cars between the Nova and the motorcycle, and the Nova weaved in and out of traffic in an attempt to catch up to the motorcycle. Michael was seen waving a tire iron out of his window yelling and pointing at the victims. The automobile finally caught up to the motorcycle and rammed it from behind. It forced the motorcycle to hit a pick-up truck and then ran the motorcycle off the road. Gilbride was thrown off the motorcycle into a telephone pole where he lay with his legs wrapped around the pole. Emanouil was pinned beneath the wreckage of his motorcycle and the automobile. He died of multiple contusions of the brain.

It was the Commonwealth's theory at trial that the defendants were engaged in a joint venture at the time the crimes were committed. The issue of the culpability of defendants under the concept of a joint venture has been frequently discussed by appellate courts. "[O]ne who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal." Commonwealth v. Soares, 377 Mass. 461, 470, 387 N.E.2d 499 (1979). Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). Commonwealth v. Pope, 15 Mass.App. 505, 509, 446 N.E.2d 741 (1983). Mere presence at the commission of the crime and the "failure to take affirmative steps to prevent it ... [do not] render a person liable as a participant." Commonwealth v. Benders, 361 Mass. 704, 708, 282 N.E.2d 405 (1972). Commonwealth v. Amaral, 13 Mass.App. 238, 241, 431 N.E.2d 941 (1982). The Commonwealth must show that a defendant somehow participated in committing the offense to the extent that he sought to make it succeed. Commonwealth v. Benders, supra, 361 Mass. 707-708, 282 N.E.2d 405. Commonwealth v. Amaral, supra, 13 Mass.App. at 242, 431 N.E.2d 941. Michael contends that it was error to deny his motions for required findings of not guilty because the evidence (1) was insufficient as to his participation in a joint venture with John and (2) failed to show that he shared with John the mental state required for the crimes of which he was convicted.

In order to resolve this issue, we must determine whether the evidence, including inferences that are not too remote according to the usual course of events, "read in a light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt." Commonwealth v. Basch, 386 Mass. 620, 622, 437 N.E.2d 200 (1982). The only evidence considered by us is that evidence introduced during the Commonwealth's case in chief. Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). Commonwealth v. Soares, 377 Mass. 461, 464, 387 N.E.2d 499 (1979). ²

Based on the evidence introduced by the Commonwealth, the jury could find that Michael was a willing participant in the commission of the crimes and shared with John the mental state required for the crimes. The evidence disclosed that after Michael pointed to the victims and said something to John, the pursuit of the motorcycle by the automobile started. While John was attempting to force the motorcycle into oncoming traffic (the same maneuver that later caused the death of Emanouil and brought serious injuries to Gilbride), Michael was leaning over the roof of the automobile and screaming at the victims. Later during the chase, he yelled at the victims, over and over, that either he or he and John intended to kill them. Finally, during the last phase of the relentless pursuit of the motorcycle by the automobile, Michael yelled and shook a tire iron at the victims. A jury could conclude, on this evidence, that Michael was more than a passive observer during the commission of the crimes, and in fact aided, counselled and encouraged John in their commission.

Michael's second contention, that the evidence did not show that he shared with John the requisite mental state for the crimes is also without merit. The jury could have inferred Michael's mental state from his knowledge of the circumstances and from his conduct and that of John. Michael was aware early in the course of the high speed chase of the motorcycle that John was using the automobile as a weapon either to strike the motorcycle or force it into oncoming traffic. Later, Michael yelled at the victims that either he or he and John intended to kill them. This evidence was sufficient to show that Michael shared with his father the intent necessary for second degree murder, see Commonwealth v. Casale, 381 Mass. 167, 172, 408 N.E.2d 841 (1980), armed assault with intent to murder, see Salemme v. Commonwealth, 370 Mass. 421, 424, 348 N.E.2d 799 (1976), and assault and battery with a dangerous weapon, see Commonwealth v. Appleby, 380 Mass. 296, 307, 402 N.E.2d 1051 (1980). Therefore, the judge was correct in submitting the issue of joint venture to the jury.

B. Instructions in regard to admissibility of John's statements as to Michael. The prosecutor introduced in evidence several postarrest statements of John made outside the presence of Michael. ³ The judge limited the admission of the statements to John and so stated to the jury at the time the statements were admitted. Michael argues that the judge's final instructions to the jury improperly allowed them to apply John's statements against Michael, even though the statements were made after the commission of the crimes. There was, however, no objection by trial counsel to the judge's instructions. ⁴ At the conclusion of his instructions, the judge said to all counsel, "Anything else, gentlemen?" to which Michael's counsel responded, "I'm satisfied with the definitions, joint venture, the charge itself, Your Honor." Since there was no objection to the instructions on joint venture, Michael is foreclosed from raising the issue of the adequacy of the instructions on appeal. Mass.R.Crim.P. 24(b) 378 Mass. 895 (1979). Commonwealth v. Pope, 15 Mass.App. 505, 511-512, 446 N.E.2d 741 (1983). We review the...