Com. v. Mangula

• Decision Date: 17 January 1975
• Citation: 2 Mass.App.Ct. 785,322 N.E.2d 177
• Parties: COMMONWEALTH v. Antonio MANGULA.
• Court: Appeals Court of Massachusetts

Page 177

322 N.E.2d 177

2 Mass.App.Ct. 785

COMMONWEALTH v. Antonio MANGULA.

Appeals Court of Massachusetts, Middlesex.

Argued May 20, 1974.

Decided Jan. 17, 1975.

John F. Palmer, Boston, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

Before ROSE, GOODMAN and GRANT, JJ.

ROSE, Justice.

This is an appeal under G.L. c. 278, §§ 33A--33G, from a conviction of armed robbery. ¹ A single issue is raised by the defendant in his brief and argument: that he was entitled to a directed verdict because there was no evidence that he was engaged in a joint enterprise to commit armed robbery. By virtue of Rule 1:13 of the Appeals Court, 1 Mass.App.Ct. (1972), assignments of error not argued in the defendant's brief are deemed waived, and thus the refusal to grant the defendant's motion for a directed verdict is the sole question for consideration.

The only question, in turn, 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. FILLIPPINI, --- MASS.APP. ---, 304 N.E.2D 581 (1973)^A; Commonwealth v. Baron, 356 Mass. 362, 365, 252 N.E.2d 220 (1969), and the appropriate standard of review on appeal is whether the evidence, read in its aspect most favorable to the Commonwealth, Commonwealth v. Flynn, --- Mass. ---, ---, ^b 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 (1933).

One of two principal witnesses for the Commonwealth was Judy Varoski, who described the circumstances of the robbery in which the defendant was allegedly involved. Varoski testified that, on April 21, 1971, while visiting Peter Kyriazopoulos (the eventual victim) at his apartment in Lowell, she was shown five $1,000 bills belonging to Kyriazopoulos.

The next morning, Varoski received a telephone call from one Luis Alvarez, who told her that he needed money for a friend named Luis Perez. As a result of this conversation, Alvarez, accompanied by Perez and his friend 'Tony' Mangula, the defendant on this appeal, joint together with Varoski and proceeded to downtown Lowell in Perez's car in order to find Kyriazopoulos at the place where he worked.

During the ride to Lowell, Perez asked Varoski if she was sure there was money at Kyriazopoulos' apartment. Unable to find Kyriazopoulos, they drove to his apartment. Varoski took Alvarez into the apartment building to show him in which apartment Kyriazopoulos lived.

When they returned, Varoski noticed the defendant and Perez standing together beside the car. She observed that Perez had a rifle in his possession. Perez said he wanted to shoot the locks off the window of Kyriazopoulos' apartment. The defendant then offered to break the window in order to gain access to the apartment and to secure the money. This plan was opposed by Varoski and Alvarez, and no further action was taken at that time. The four of them got back into the car and continued their search for Kyriazopoulos.

In the car, another conversation ensued in which Varoski said she would get Kyriazopoulos out of his apartment by 5:00 P.M. that afternoon and told the others that the had given Perez Kyriazopoulos' telephone number to call to make sure he was not at home. They were then to break into the apartment.

During the course of that afternoon and evening, Varoski made continuous telephone calls to Kyriazopoulos' apartment but was to reach him. She did not however, call Perez to tell him she was unable to contact Kyriazopoulos.

Alvarez also testified concerning the events leading up to the crime and the crime itself. After talking with Varoski on the morning of April 22, Alvarez went to see Perez and the defendant. In the presence of the defendant, Alvarez told Perez about the money at Kyriazopoulos' apartment and that Varoski knew where it was.

At the trial Alvarez essentially corroborated Varoski's testimony concerning the conversations in Perez's car and outside the car at Kyriazopoulos' apartment.

In the afternoon, Alvarez and the defendant entered a car which Perez was driving. Alvarez sat in the front seat and the defendant in the back seat. Alvarez noticed a rifle behind the defendant's head in the back seat.

At about 4:30 P.M. they parked at Kyriazopoulos' apartment building. Alvarez and Perez then got out of the car and proceeded to the apartment building, but the defendant remained in the car. Perez went straight to the building door and opened it. Alvarez went past him into the building. Alvarez testified he did not see Perez with the rifle at that point. When Perez later rushed by Alvarez into the apartment 'he had a gun with him.' Alvarez recounted the circumstances of the robbery and the shooting of Kyriazopoulos by Perez.

Alvarez testified that when he ran from the apartment building the defendant was sitting in the back seat of the car on the driver's side with the door open. Upon reaching the car, Alvarez threw a bank book containing $1,000 bills at the defendant and told him that the money was 'fake' and that Perez had shot Kyriazopoulos. Perez returned four or five minutes later and gave the rifle to the defendant, who replaced it on the back window shelf. The defendant also received items taken from the apartment by Perez.

Lillian Oates, a girlfriend of the defendant, testified that 'some time later' the defendant told her that he was inside the car and not in Kyriazopoulos' apartment at the time of the robbery. Oates also testified that on the day after the crime she and the defendant accompanied Luis Perez to New Hampshire and then to New York.

The defendant, although charged as a principal, was in theory being charged as an accomplice or principal in the second degree. ² The Commownealth has proceeded on the theory that the defendant was engaged in a joint enterprise and is therefore criminally liable for the armed robbery which occurred. The defendant concedes that there may been a joint enterprise but argues that the very essence of the common design was to avoid confronting the eventual victim. He therefore argues that while the joint enterprise might have included a plan to break into the apartment and commit larceny, it did not extend to the commission of armed robbery.

The defendant points to the case of Commonwealth v. Richards, --- Mass. ---, ---, ^c 293 N.E.2d 854 (1973), which defines the requirements for criminal liability in a joint enterprise. '(G)uilt 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.' See also COMMONWEALTH V. FERGUSON, --- MASS. ---, 309 N.E.2D 182 (1974)^D. The Richards case specifically rejected in a noncapital indictment the application of the broad concept of complicity which operates in the area of felony-murder, and under which each joint venturer would be held responsible for any crime committed by any of his partners which follows naturally and probably from the carrying out of the enterprise. Outside the felony murder area, each joint venturer must be shown to have the mens rea required for the specific crime with which he is charged. However, it is sufficient if an accomplice possesses conditional or contingent intent, i.e. a willingness to see some action occur should it become necessary to effectuate the plan. See the Richards case, supra, at --- - ---, ^{e, 3} 293 N.E.2d 854.

Chapter 277, § 39, of the General Laws defines robbery as '(t)he taking and carrying away of personal property of another from his person and against his will by force and violence, or by assault and putting in fear, with intent to steal.' ⁴ This definition substantially adopts the common law notion of robbery, which requires a specific intent to steal as an essential element of the mens rea of the crime. People v. Morlock, 46 Cal.2d 141, 146, 292 P.2d 897 (1956). See also Jackson v. United States,121 U.S.App.D.C. 160, 348 F.2d 772, 773 (1965); Richardson v. United States,131 U.S.App.D.C. 168, 403 F.2d 574 (1968); Jones v. Commonwealth, 172 Va. 615, 618--619, 1 S.E.2d 300 (1939); People v. Sheasbey, 82 Cal.App. 459, 462--463, 255 P. 836 (1927); Perkins, Criminal Law, 265--267, 279--281 (2d ed. 1969).

To constitute the crime of armed robbery, an additional mental element may be required. One case decided by the Supreme Judicial Court 'can be read as suggesting that for armed robbery it may be enough that the accomplice intends the robbery even though he does not advert to the presence of a dangerous weapon, the possession being seen as merely an aggravation of the robbery.' Commonwealth v. Ferguson, --- Mass. ---, ---, ^f 309 N.E.2d 182 (1974), discussing Commonwealth v. Nickologines, 322 Mass. 274, 276--277, 76 N.E.2d 649 (1948). However, for the purposes of this case, we assume the posture taken in Commonwealth v. Ferguson, supra, at --- - ---, ^g 309 N.E.2d 182, and require that to be found guilty of armed robbery, the defendant must have had knowledge of the possession of the weapon by his joint venturers.

In this case, there was sufficient evidence for the jury to find that the defendant had at least a conditional intent to see the joint enterprise extend to armed robbery. The jury as the trier of fact are free to draw inferences 'unless the inference either is forbidden by some special rule of law, or is declared unwarranted because too remote, according to the ordinary course of events.' Commonwealth v O'Brien, 305 Mass. 393, 401, 26 N.E.2d 235, 239 (1940). 'It is not essential that the inferences drawn from facts or circumstances be...