Com. v. Pope

• Decision Date: 23 March 1983
• Parties: COMMONWEALTH v. Joseph POPE.
• Court: Appeals Court of Massachusetts

Page 741

446 N.E.2d 741

15 Mass.App.Ct. 505

COMMONWEALTH v. Joseph POPE.

Appeals Court of Massachusetts,

Suffolk.

Argued Dec. 20, 1982.

Decided March 23, 1983.

John Salsberg, Boston, for defendant.

Linda M. Poulos, Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, GREANEY and WARNER, JJ.

WARNER, Justice.

The defendant appeals from a conviction by a jury on a complaint charging him with breaking and entering in the daytime with intent to commit a felony. ¹ He assigns as error the denial of his motion to suppress certain physical evidence and statements, the refusal to rule on his motion to suppress statements, the denial of his motion for a required finding of not guilty, and the instruction given to the jury on the theory of joint venture. We affirm the judgment.

1. The motions to suppress. Prior to trial the defendant filed a motion to suppress, alleging that as a result of an illegal search by police officers a screwdriver was found on the defendant's person and praying that the screwdriver "along with any statements made by the defendant" be suppressed because obtained in violation of his State and Federal constitutional rights. The affidavit of the defendant attached to the motion referred only to the search during which the screwdriver was found. During the hearing on the motion, the judge ruled that he would not consider suppression of any statements made by the defendant, as the issue was not properly raised in the motion. The judge denied his motion to suppress the screwdriver but made it clear to the defendant's counsel that he could raise objections based on the lack of Miranda ² warnings (apparently the only objection the defendant's counsel wished to advance with respect to statements of the defendant to the police) at trial. Rule 13(a)(2) of Mass.R.Crim.P., 378 Mass. 871 (1979), requires that a motion to suppress set forth the grounds "with particularity." Further, the rule requires that an affidavit be attached "detailing all facts relied upon in support of the motion." The allegations in this first motion to suppress with respect to statements made by the defendant were general and not particular, and the affidavit contained no facts whatsoever with respect to any such statements. There was no error in the judge's refusal to consider the suppression of statements made by the defendant as being properly raised by this motion. See Commonwealth v. Kiernan, 348 Mass. 29, 34-35, 201 N.E.2d 504 (1964), cert. denied sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800 (1965); Commonwealth v. Slaney, 350 Mass. 400, 403, 215 N.E.2d 177 (1966).

The screwdriver found on the defendant by the police in a pat-down search was introduced at trial. The complaint charging the defendant with the possession of a burglar's tool identified the tool as a screwdriver. The jury found the defendant not guilty on the charge. It is incumbent on the defendant to show that he has been harmed by the ruling of the judge on the motion to suppress. Commonwealth v. Slaney, supra 350 Mass. at 402, 215 N.E.2d 177. The defendant has not argued any such harm.

After the jury were empanelled but before testimony began, the defendant presented a second motion to suppress, alleging that he was not properly given his Miranda rights and seeking the suppression of all statements made by him to the police. No affidavit in support of this motion was attached. The judge accepted the motion for filing but refused to act on it, referring to his prior ruling on the first motion. (It is clear that this reference meant that the defendant could raise Miranda issues as they arose at trial.) This second motion to suppress was not timely filed, Mass.R.Crim.P. 13(d)(1)(A)(i), 378 Mass. 873 (1979), nor was the affidavit required by rule 13(a)(2) attached, and the judge was, therefore, not obligated to consider the motion. See Commonwealth v. McColl, 375 Mass. 316, 322, 376 N.E.2d 562 (1978) (decided under a substantially similar rule 61 of the Superior Court [1974] ).

In his rulings on both motions the judge made clear to the defendant's counsel that he could object at trial on the basis of the failure of the police properly to give Miranda warnings. The defendant's rights were adequately protected in the circumstances.

At trial, Officer Quinn's uncontroverted testimony was that he read the Miranda rights to the defendant from a card some time after they left the scene of the apprehension but before the defendant was booked and that the defendant stated that he understood those rights. The defendant did not during the trial challenge compliance with the Miranda rules. See Commonwealth v. Smith, 2 Mass.App. 821, 822, 310 N.E.2d 143 (1974). Officer Quinn testified that at the booking the defendant gave a false name. On the record before us, it appears that the defendant made no objection to this testimony. There is, therefore, nothing before us in this respect. See Commonwealth v. Thurber, 383 Mass. 328, --- - ---, 418 N.E.2d 1253 (1981); Commonwealth v. Fullerton, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 2004, 2005, 428 N.E.2d 377. This was the only statement of the defendant offered at trial.

2. The motion for a required finding of not guilty. In reviewing the denial of the motion for a required finding of not guilty we view the evidence in the light most favorable to the Commonwealth to determine whether that evidence, together with permissible inferences, was sufficient as to each element of the offense charged to have "satisfied a rational trier of fact of each such element beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). See Commonwealth v. Amaral, 13 Mass.App. 238, 239, 431 N.E.2d 941 (1982). "The inferences drawn by the jury need not be necessary or inescapable, as long as they are reasonable, possible, and not unwarranted because too remote from the ordinary course of events." Commonwealth v. Chinn, 6 Mass.App. 714, 716, 383 N.E.2d 90 (1978). See Commonwealth v. Albano, 373 Mass. 132, 134-135, 365 N.E.2d 808 (1977); Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). "Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense" (footnote omitted). Commonwealth v. Drew, 4 Mass.App. 30, 32, 340 N.E.2d 524 (1976).

The Commonwealth proceeded against the defendant on a theory of joint venture. To sustain a conviction on that theory the Commonwealth must show that the defendant "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." Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973). See Commonwealth v. Funches, 379 Mass. 283, 295, 397 N.E.2d 1097 (1979); Commonwealth v. Chinn, supra 6 Mass.App. at 716, 383 N.E.2d 90. The evidence against the defendant must show more than mere association with the perpetrator of the crime (see Commonwealth v. Chinn, supra at 717, 383 N.E.2d 90, and cases cited; Commonwealth v. Amaral, supra 13 Mass.App. at 241, 431 N.E.2d 941); more than "mere presence at the commission of the wrongful act and even failure to take affirmative steps to prevent it" (Commonwealth v. Benders, 361 Mass. 704, 708, 282 N.E.2d 405 [1972]; see Commonwealth v. Michel, 367 Mass. 454, 457, 327 N.E.2d 720 [1975]; Commonwealth v. Flowers, 1 Mass.App. 415, 419, 298 N.E.2d 898 [1973] ); and more than presence coupled with knowledge of the planned act (see Commonwealth v. Soares, 377 Mass. 461, 471, 387 N.E.2d 499 [1979]; Commonwealth v. Casale, 363 Mass. 299, ---, Mass.Adv.Sh. [1980] 1711, 1717, 408 N.E.2d 841). What is required is a showing that the defendant intentionally participated in the offense "by counseling, hiring or otherwise procuring the principal, by agreeing to stand by, at, or near the scene to render aid, assistance or encouragement if it became necessary, or to assist the perpetrator in making an escape from the scene." Commonwealth v. Amaral, 13 Mass.App. at 242, 431 N.E.2d 941. See Commonwealth v. Conroy, 333 Mass. 751, 755, 133 N.E.2d 246 (1956); Commonwealth v. Soares, supra 377 Mass. at 471-472, 387 N.E.2d 499.

The defendant did not testify at the trial. We summarize the evidence, which was uncontroverted. On the afternoon of December 29, 1981, Officer Quinn and his partner, acting on information Quinn received, proceeded in their cruiser toward 141 Everett Street in the Allston section of Boston. The area is built up, and the single family house at number 141 is about the only house at the end of the block. On arriving at the scene Quinn observed a green automobile parked about fifty feet away from the driveway at number 141 and on the same side of the street. There was no other automobile in the area. Quinn observed the defendant standing on the sidewalk next to the open right hand passenger door of the automobile and facing away from the house. Officer Quinn proceeded to check the house while his partner "took the defendant into custody." Quinn testified that the front door to the house was locked but that at the back of the house he found the handle and lock of the outside storm door broken and a glass panel on the inside door smashed; the door was open. The inside door had been locked and both doors in good condition when the resident left for work earlier that day. Deterred momentarily by the presence of a large German shepherd dog, Quinn entered the house and observed a television set on the...