Com. v. Lafayette, 95-P-57

• Decision Date: 24 July 1996
• Docket Number: No. 95-P-57,95-P-57
• Citation: 40 Mass.App.Ct. 534,665 N.E.2d 1025
• Parties: COMMONWEALTH v. Michael J. LAFAYETTE.
• Court: Appeals Court of Massachusetts

Page 1025

665 N.E.2d 1025

40 Mass.App.Ct. 534

COMMONWEALTH v. Michael J. LAFAYETTE.

No. 95-P-57.

Appeals Court of Massachusetts Berkshire.

Argued Nov. 15, 1995.

Decided June 7, 1996.

Further Appellate Review Denied July 24, 1996.

Allan K. Cook, Northampton, for defendant.

Gerard D. Downing, District Attorney, and Elizabeth D. Gross, Assistant District Attorney, for Commonwealth.

Before DREBEN, GILLERMAN and FLANNERY, JJ.

DREBEN, Justice.

Convicted of breaking and entering in the nighttime with intent to commit a felony, the defendant challenges the denial of his motion for a required finding of not guilty. He claims that he was not present at the scene of the crime and that he had, in any event, withdrawn from any joint venture at the time of the crime's commission. The defendant also asserts that the judge's instructions were incorrect and that his counsel was ineffective. We conclude that there was a sufficient showing of the defendant's presence for him to be liable as a joint venturer and that his other claims do not present reversible error. Accordingly, we affirm his conviction.

Unfortunately, cassettes of the proceedings after the close of the Commonwealth's case are missing. Both the Commonwealth and the defendant submitted proposed statements of the evidence to the trial judge. After a hearing, the judge filed a statement of the evidence beginning with the defendant's case. Our recitation of the facts, viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), is taken from the transcript of the first day of trial. The remaining facts are supplied by the judge's statement of the evidence.

On October 22, 1992, a thirteen year old student at a middle school in North Adams and a fellow student discussed breaking into the D & M Outpost, a hunting store in that town. The next day they went into the store several times to see where the guns and bullets were located and whether there were alarms on the doors, but they had no specific plan to accomplish their mission. The defendant also, according to the owner, was in the store on October 23, 1992.

That evening, the boys sought out the defendant, an adult. Not finding him at home, they looked for him downtown and saw his "bike" ¹ and the "bike" of one of his friends (Brian) outside a bar. They motioned the defendant outside and told him of their intent to steal guns from the D & M Outpost. The defendant proposed a plan: the "best bet would be to break through the window with something (inaudible) and then go back (inaudible)." ² He accompanied the boys to the back entrance of the D & M Outpost, found a rock, and gave it to one of the youngsters. By agreement, the defendant went to a nearby parking lot to signal the boys to throw the rock when there were no cars in sight. He gave the signal, the rock was thrown through the back glass door, and the three retreated to a prearranged place. The defendant and his friend Brian put the boys on their "bikes" and gave them a ride to a vantage point from which they could view the D & M Outpost and determine whether the police had arrived. After seeing that the police were at the store, the four proceeded to the defendant's apartment. During their discussions of the plan, the defendant told the boys that he did not think "it was a good idea to go back" but, he added, " 'If you get the guns, then I will pay you for them, a couple of them, and if you get caught the least [sic ] you'll get is some probation, maybe a couple of weeks in jail or lock up.' "

The initial break took place about 8:30 P.M. A little after midnight, the boys, but not the defendant, went back to the store and removed a piece of plywood that the store's owner had arranged to have put over the broken glass. One boy remained outside as a lookout and one entered the store. Shortly thereafter, the police arrived and arrested the two juveniles. They informed the police that the defendant also was involved. When questioned by the police, the defendant first asserted that he had been home all night with his friend, Brian, that he did not know the boys, and did not know where the D & M Outpost was located. Later, he admitted that he knew who the boys were and that about 8:30 P.M. he had been in the area of the D & M and had seen a police car in the parking lot in the rear.

The defendant called one of the boys as a witness. ³ He testified that "he had gone to the defendant's house on the night of the break and that the defendant had threatened [him] with a knife to break into the store. [He] also corroborated [the other boy's] testimony that [the defendant] had provided ... the stone which was thrown through the store's glass door and that the defendant was across the street when the rock was thrown." He also testified that the defendant told him that it "wasn't a good idea" to return to the D & M Outpost to steal guns and that the defendant did not encourage him to break into the D & M store after the first break.

1. Element of presence. "To sustain a conviction for joint venture, there must be evidence from which a jury could conclude that the defendant was present at the scene of the crime, with knowledge that another intends to commit a crime, and by agreement is willing and available to help the other if necessary. The prosecution must also show that the defendant shared with the principal the mental state required for the crime." Commonwealth v. Clarke, 418 Mass. 207, 214, 635 N.E.2d 1197 (1994). Commonwealth v. Sim, 39 Mass.App.Ct. 212, 215, 654 N.E.2d 340 (1995).

The defendant claims that he was not present at the scene and also that he had withdrawn from any joint enterprise prior to the commission of the crime. Each of these circumstances, he argues, entitled him to the allowance of his motion for a required finding of not guilty, filed at the conclusion of the Commonwealth's case and again at the close of all the evidence. We conclude otherwise. There was evidence that the defendant (1) devised the plan for the theft, including the elimination of the alarm system, see note 2, supra; (2) provided the rock for the break to the building--indeed, the rock that was found within the store was identified as the rock given to one of the boys; (3) actively participated as a lookout; (4) later offered to purchase any guns the boys might obtain from the store; and (5) made inconsistent statements indicating a consciousness of guilt.

True, there was no evidence that he was present at the actual entry which was the culmination of the ongoing criminal venture. However, while the crime of breaking and entering with intent to commit a felony requires an entry, see Commonwealth v. Burke, 392 Mass. 688, 690, 467 N.E.2d 846 (1984), there is no need for a defendant to be present at the scene of a crime throughout its occurrence. "Our courts have been expansive in their treatment of the presence requirement with respect to activities of an alleged joint venturer which reasonably might be viewed as undertaken with the intention of facilitating escape by the principal felon. See Commonwealth v. Mahoney, 405 Mass. 326, 329 (1989)." Commonwealth v. Sim, 39 Mass.App.Ct. at 217, 654 N.E.2d 340. In Sim, we upheld a conviction of a joint venturer who had left the scene before the victim was murdered and did not return until five minutes after the police had arrived to investigate the completed crime. Id. at 215-218, 654 N.E.2d 340. In determining that there was sufficient evidence of "presence," we noted that since the defendant had planned the robbery, had led the robbers to the victims, and had expected to share in the proceeds of the robbery, it was reasonable to infer that the defendant had agreed to stand by to render aid. It was also reasonable to infer that the defendant, when he returned, did not know that the robbers had left the scene and thus thought that he still might be of assistance. Id. at 217-218, 654 N.E.2d 340.

Here, the defendant devised the scheme to implement the theft. The jury could reasonably infer that at the time of the 8:30 P.M. breaking there was an intent shared by the defendant to make a subsequent entry. Indeed, the plan was to knock out the alarm system so that a later entry could safely be made.

It has long been established that a breaking and entering need not be simultaneous, but can be separate in time. Thus in Rex v. Smith, Russ. & Ry. 417, 418, 168 Eng.Rep. 874, 875 (1820), the court noted that "although a day elapsed between the breaking and the entering, yet the breaking was originally with the intent to enter." Accordingly, the court held the defendant rightly convicted--there was but one single felony. In Whitsell v. State, 246 Ind. 175, 176-178, 203 N.E.2d 832 (1965), the court, noting that this was "the first time this Court has been confronted with evidence of a 'coffee-break' during the commission of a crime," upheld a burglary conviction because "it might reasonably be inferred that the parties intended to commit the felony even though a 'coffee-break' intervened between the employment of force used to create an opening and the actual entering later on." See also Commonwealth v. Glover, 111 Mass. 395, 402 (1873) (breaking and entering need not be shown to have occurred on the same night); 2 LaFave & Scott, Substantive Criminal Law § 8.13(b), at 468 (1986) (entry may be separate in time from the breaking); Nolan & Henry, Criminal Law § 4.02, at 302 (2d ed. 1988). Since the defendant was present at a crucial part of the crime with the intent that there be a later entry, we see no reason why he is any the less a joint venturer than one who is only present in time to assist the departure from the scene. ⁴

2. Withdrawal from the joint venture. The evidence of withdrawal during the Commonwealth's case consisted of the answer of one of the boys to the question: "Do you remember [the defendant] telling you that he didn't think it was a...