Com. v. Padgett, 96-P-1900

• Decision Date: 03 March 1998
• Docket Number: No. 96-P-1900,96-P-1900
• Citation: 44 Mass.App.Ct. 359,691 N.E.2d 239
• Parties: COMMONWEALTH v. Kenneth N. PADGETT.
• Court: Appeals Court of Massachusetts

Page 239

691 N.E.2d 239

44 Mass.App.Ct. 359

COMMONWEALTH v. Kenneth N. PADGETT.

No. 96-P-1900.

Appeals Court of Massachusetts Worcester.

Argued Nov. 13, 1997.

Decided March 3, 1998.

Further Appellate Review Denied April 28, 1998.

Emanuel Howard, Auburndale, for defendant.

James P. McKenna, Assistant District Attorney, for the Commonwealth.

Before WARNER, C.J., and DREBEN and FLANNERY, JJ.

DREBEN, Justice.

What began on the morning of February 1, 1994, as a series of house breaks rapidly escalated into far more serious crimes and culminated in the death of the police chief of Paxton. Charged as a joint venturer with two other men, Michael Souza and James Richards, the defendant was convicted of second degree murder, based on a theory of felony-murder, and of ten other offenses. ¹ Although the defendant claims sixteen errors on appeal, his primary contentions are (1) there was insufficient evidence to find him a joint venturer in the gun-related charges; (2) the homicide was not the natural and probable consequence of the underlying felonies; (3) the judge should not have included the daytime house breaking or armed assault charges as felony-murder predicates; (4) the judge's instructions were erroneous in numerous respects; and (5) the sentences imposed were illegal. We affirm the convictions with the exception of the one for armed robbery, which merged in the second degree murder conviction.

1. The evidence and its sufficiency to convict the defendant of armed robbery and armed assault. Taking the evidence--much of which came from the defendant's statements to the police after his arrest--in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the jury were warranted in finding the following facts. Needing money to pay his rent, the defendant agreed with his friends Souza and Richards to commit a series of house breaks. Souza had committed such breaks in the past with the defendant and had also engaged in such breaks with Richards. The defendant knew that Souza had three guns. He also had heard Souza state on more than one occasion, and as recently as two months before February 1, 1994, that "some day he'll have to kill a police officer to get away because he would not go back to jail."

On the morning of February 1, before they set off on their venture, Souza told the defendant that Richards had his choice of "which piece [gun] he wanted, the .357 or the .22." Thereafter, driven by Souza in a stolen van, the three men broke into a home on Kendall Road in Holden and removed various items. During the break-in, Souza told the defendant that he had a gun, adding, " 'If anybody comes home, I'm going to take him down.' Not as in kill them, but tie them up and make sure we can get away." They broke into a second house on Kendall Road and, after stealing some property, left quickly as Richards had spotted a car driving slowly past. ²

Kendall Road leads into a restricted reservoir area, and, in error, Souza drove in. Shortly before 11 A.M., a Department of Public Works foreman, Richard Polli, seeing the van, and afraid that it would hit another crew working ahead on the narrow, icy road, jumped into his truck and headed toward the other crew. Before Polli could reach the men who were working ahead, the van turned around, and the two vehicles collided, the van ending up in a snowbank. Souza cursed Polli, and after he, Richards, and the defendant tried unsuccessfully to extricate the van, Souza asked Polli for assistance. When Polli refused, Souza pulled out a nine millimeter handgun, waved it at Polli and his three crew men, and ordered them to the ground. He fired a shot in the air and pointed the gun at Polli, whereupon Polli told him to "take the truck and screw."

With Richards and the defendant as passengers, Souza backed down the road and, within 200 feet, the truck became stuck in the snow. The three men fled and ran over an ice-covered reservoir into some woods. After running for about fifteen to twenty minutes, they reached Route 31 where they saw a police car coming toward them. They crossed the road and ran into woods on the other side.

By this time the Holden police were alerted to the house breaks and to the shooting in the reservoir area. A Holden police officer investigated the reservoir site and found the stolen van containing items matching the description of the property taken from the Kendall Road homes. The officer radioed Chief Robert Mortell of the Paxton police with the request that he assist with his dog. Numerous policemen began patrolling the area looking for three men on foot.

After receiving a description of the three men, Chief Mortell radioed his location and indicated that he had sighted the three men. He followed the three into the woods, leaving his car on the road. Shortly after receiving Mortell's radio communication, Officer Ahearn of the Paxton police department arrived at the location described by Mortell and parked behind Mortell's cruiser. Seeing four sets of footprints in the snow leading into the woods, Ahearn followed them in an effort to catch up with Mortell. Within a minute he heard gunshots--about thirteen--and within thirty seconds came upon the chief, leaning against a tree. Emergency medical technicians were summoned at 11:32 A.M., and they took Mortell to a hospital where he was pronounced dead between 11:45 A.M. and noon.

The chief was found about 100 yards into the woods. His footsteps had pointed in a southeasterly direction. Three other sets of footprints pointed in the same direction but separated ten to fifteen feet beyond the location where he was found. One set went east and two sets south.

With the aid of a dog, police following the easterly footsteps discovered Souza's nine millimeter gun--the gun with which the chief had been shot. Other officers arrested Souza about a quarter of a mile away.

Richards and the defendant spent the night hidden in an abandoned building and were arrested the following day. While Richards and the defendant were together, Richards "ditch[ed]" a gun into the snow.

Although the defendant argues that there was insufficient evidence to find him guilty as a joint venturer in the armed robbery of the Department of Public Works truck or the gun assaults on the work crew at the reservoir site, the jury were warranted in finding otherwise. "A defendant can be convicted as a joint participant in a felony, if he or she was '(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.' " Commonwealth v. Ortiz, 424 Mass. 853, 856, 679 N.E.2d 1007 (1997) (citations omitted). While more than mere acquiescence is needed, "physical participation is not required so long as there is 'association with the criminal venture and any significant participation in it.' " Ibid. (citations omitted).

The jury could find that all three requirements were met here. The defendant was at the scene of the armed assaults and the armed robbery. From Souza's statement that Richards would get "first pick of the piece," the jury could infer that the defendant knew that guns were taken to the house breaks. In addition, the defendant was directly told by Souza during the first house break that he (Souza) was armed. The defendant also knew that Souza was willing to shoot a police officer to avoid returning to jail. Indeed, after his arrest, the defendant told the police, "I always knew something like this was going to happen." Thus, knowing that Souza would use all force necessary to escape, and knowing at least by the time of the second house break that Souza was armed, the defendant joined in the venture to break into homes. He remained in the stolen van as the three men drove into the reservoir area, helped in trying to push the van out of the snow, entered the stolen truck--the fruit of the armed robbery--and even after the three abandoned the truck, remained with the other two as they fled across the reservoir, into the woods, across Route 31, and 100 yards into another wooded area. See Commonwealth v. Williams, 422 Mass. 111, 121, 661 N.E.2d 617 (1996) (finding of joint venture warranted where evidence showed defendant was present at the scene of the crime and that he and another entered the building together and fled together). See also Commonwealth v. Santos 402 Mass. 775, 787, 525 N.E.2d 388 (1988). At no point prior to the separation from Souza (or his footprints) more than 100 yards into the woods did the defendant disassociate himself from Souza. Based on this evidence, the jury were warranted in finding that the defendant had the requisite intent and was willing and available to help Souza if necessary in the armed assaults and armed robbery. The defendant was sufficiently involved to be considered a participant in these crimes.

While the defendant may not have wanted the assaults or the armed robbery to occur, the jury were warranted in finding the requisite mental state by determining that the defendant possessed a "conditional or contingent intent, i.e., a willingness to see some action occur should it become necessary to effectuate the plan" or make good the escape. Commonwealth v. Mangula, 2 Mass.App.Ct. 785, 789, 322 N.E.2d 177 (1975). See Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973); Commonwealth v. Watson, 388 Mass. 536, 544-545 n. 7, 447 N.E.2d 1182 (1983).

The defendant also argues that there was insufficient evidence to find him guilty of armed robbery because the defendant did not intend to retain the truck, and there was no evidence warranting the inference that he intended permanently to deprive the owner of its use. The contention is without merit. "One who takes property without the authority of the owner and so uses or disposes of it as to show indifference whether...