Com. v. Levia

• Citation: 431 N.E.2d 928,385 Mass. 345
• Parties: COMMONWEALTH v. Guy H. LEVIA.
• Decision Date: 23 February 1982
• Court: United States State Supreme Judicial Court of Massachusetts

Page 928

431 N.E.2d 928

385 Mass. 345

COMMONWEALTH v. Guy H. LEVIA.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 3, 1981.

Decided Feb. 23, 1982.

David C. Casey, Boston, for defendant.

Daniel F. Toomey, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The defendant was convicted, after a Superior Court jury trial, on two indictments for masked armed robbery and was sentenced to two consecutive ten-year terms at the Massachusetts Correctional Institution at Concord. He filed a motion for a new trial and a motion to correct sentence, Mass.R.Crim.P. 30(a), (b), 378 Mass. 900 (1979), both of which were denied by the trial judge. The defendant appeals the denial of his motion for a new trial; the question presented by the motion to correct sentence has been reported by the judge. ¹ We transferred the case to this court on our own motion. We affirm the judge's rulings.

The evidence at trial showed that on February 24, 1979, at approximately 8 P.M., a man wearing a mask and carrying a pistol entered a Cumberland Farms store. Two employees, Lorie Lawrence and James Westbury, were in the store at the time, standing behind the counter. The man pointed the pistol at them and demanded money. Westbury, who worked the gasoline pumps located outside the store, gave him the money he had in his pocket from selling gasoline. Lawrence took the money that was in the cash register and gave it to the man, who then ran out of the store. All the money taken belonged to Cumberland Farms.

The sole issue at trial was the identity of the robber. Lawrence, who had seen the defendant on prior occasions and knew him by name, told Westbury, and later the police, that she thought the defendant was the person who had robbed the store. At the police station she was shown an array of photographs, and she selected the defendant's picture from among them. Westbury did not know the defendant, and when shown the same photographs, he failed to select the defendant's picture. The police then showed Westbury a photograph of the defendant and told him that Lawrence had picked out this photograph as depicting the man who robbed them. Westbury was still unable to make a positive identification. Later, however, when Lawrence and Westbury were at the Uxbridge District Court waiting for the probable cause hearing, Lawrence asked Westbury if he could pick out the man who robbed the store from the fifteen or twenty other people in the room. Westbury then identified the defendant as the man who had robbed them. At the probable cause hearing itself, and also at trial, Westbury again identified the defendant as the robber. The defendant's trial counsel did not move to suppress the evidence of Westbury's identification of the defendant, and failed to object to its admission at trial or to request limiting instructions.

1. Motion to correct sentence. The defendant was convicted and sentenced on two indictments of masked armed robbery-one for robbery from the person of Westbury, and one for robbery from the person of Lawrence. The defendant contends that there was but one robbery, and that it was therefore error for the judge to impose two separate and consecutive sentences. He argues that where, as here, property belonging to a single entity is taken by force or violence from more than one person in the course of a single incident, only one "robbery" has occurred, and thus only one sentence may be imposed.

The double jeopardy clause of the Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, prohibits punishing a person twice for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). However, few, if any, limitations are imposed by that clause on the legislative power to define offenses. Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43 (1978). See Ladner v. United States, 358 U.S. 169, 173, 79 S.Ct. 209, 211, 3 L.Ed.2d 199 (1958). The appropriate inquiry, then, is whether the Legislature intended that the putting in fear and taking from two individuals money belonging to a single entity would constitute one robbery or two, where the taking occurred during the course of a single episode. The Commonwealth argues that the armed robbery statute, G.L. c. 265, § 17, ² was designed to protect people, and that the crucial element of robbery for the purposes of this case is the assault. The defendant argues that the larceny element of the offense should control, and that since the money of a single entity was taken, there was but one robbery.

It is noteworthy that the armed robbery statute, G.L. c. 265, § 17, is found under the chapter of the General Laws entitled "Crimes against the Person," rather than under the chapter (c. 266) entitled "Crimes against Property." In addition, the Legislature has not imposed different statutory penalties for robbery according to the value of the property taken, as it has with respect to the crime of larceny (see G.L. c. 266, § 30), thus suggesting that it was not so much concerned with the larceny aspect of the crime of robbery as with its assault aspect.

In construing the armed robbery statute, this court has previously stressed the assault aspect of the crime. In Commonwealth v. Weiner, 255 Mass. 506, 152 N.E. 359 (1926), the defendant claimed that no robbery had been committed where the property taken did not belong to the person against whom the threat or force was used. In affirming the conviction, the court stated, "The essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property of any value whatsoever, with the intention of stealing it, from the protection which the person of that other affords.... It is not affected by the state of the legal title to the goods taken." Id. at 509, 152 N.E. 359. In Commonwealth v. Berryman, 359 Mass. 127, 268 N.E.2d 354 (1971), this court was faced with facts similar to the case at bar, except that the defendant was given concurrent sentences. The court refused to overturn the defendant's conviction under multiple indictments for armed robbery, stating, "Each indictment alleged a separate and distinct offence on which the jury could have found him guilty or innocent.... Even if we were of opinion that the Commonwealth was precluded from prosecuting the defendant under multiple indictments, simply because there were four bank employees robbed, this would be rendered harmless by reason of the concurrent sentences." (Citations omitted.) Id. at 131, 268 N.E.2d 354. ³

The defendant argues that Commonwealth v. Stewart, 365 Mass. 99, 309 N.E.2d 470 (1974), supports his position. There the defendant and an accomplice robbed a supermarket, assaulting the night manager and a meat cutter. Money was taken from a safe by the defendant's accomplice, and not from the person of either employee. The indictment charged the defendant with robbery of money from the person of the meat cutter, and the defendant alleged that the indictment was for this reason defective, since the night manager, not the meat cutter, was responsible for the money in the safe. The court affirmed the conviction, and held that an indictment for armed robbery is sufficient so long as the victim named in the indictment had "some protective concern" for the property taken, and the property was taken from the victim's person or presence. Id. at 108, 309 N.E.2d 470. See also Commonwealth v. Subilosky, 352 Mass. 153, 165-166, 224 N.E.2d 197 (1967). The defendant argues that by implication Stewart recognizes that on the facts of that case there was but a single robbery. However, in that case the court was concerned with defining the victims of the crime; the court was not defining the crime itself. The result and reasoning in Stewart is equally valid whether the circumstances are considered to give rise to two statutory offenses or one.

We are not persuaded by those cases that have reached a conclusion contrary to the one we reach here. See People v. Nicks, 23 Ill.App.3d 435, 442, 319 N.E.2d 531 (1974); Rogers v. State, 396 N.E.2d 348, 355 (Ind.1979); Williams v. State, 395 N.E.2d 239, 247-249 (Ind.1979) (but see Lash v. State, 414 N.E.2d 338, 343-344 (Ind.App.1981) ); State v. Potter, 285 N.C. 238, 251-254, 204 S.E.2d 649 (1974); State v. Perkins, 45 Or.App. 91, 607 P.2d 1202 (1980). See also State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972); State v. Clemmons, 35 N.C.App. 192, 241 S.E.2d 116 (1978). The North Carolina courts, in the above-cited cases, concluded, and the defendant here argues, that the existence of a single robbery is demonstrated by the application of a "same evidence" test similar to that employed in this Commonwealth for determining whether one offense is included within another. ⁴ See State v. Clemmons, supra at 196, 241 S.E.2d 116. It is reasoned that because the same facts concerning the robbery of the store would be sufficient to convict the defendant of robbing store money from any of the employees present and threatened, the "same evidence" test bars multiple convictions, thereby indicating that a single offense occurred. But we think that this logic is faulty. It assumes from the start that the "robbery" is of the entity to which the money belongs, not the persons assaulted. If, on the other hand, it is assumed that the robbery is of the persons assaulted, it is apparent that the evidence used to convict the defendant of assaulting and stealing money from the person of "Lorie Lawrence" would not be sufficient to support a conviction for the assault and stealing of money from the person of "James Westbury," without proof of additional facts, viz., that money was taken from the person or presence of James Westbury and that he had some protective concern for the money. See Kuklis v. Commonwealth, ...