Com. v. Quinones, 09-P-435.

• Court: Appeals Court of Massachusetts
• Writing for the Court: RUBIN
• Citation: 936 N.E.2d 436,78 Mass.App.Ct. 215
• Parties: COMMONWEALTH v. Juan Santos QUINONES.
• Docket Number: No. 09-P-435.,09-P-435.
• Decision Date: 08 November 2010

936 N.E.2d 436
78 Mass.App.Ct. 215

COMMONWEALTH
v.
Juan Santos QUINONES.

No. 09-P-435.

Appeals Court of Massachusetts,
Hampden.

Argued Feb. 2, 2010.
Decided Nov. 8, 2010.

936 N.E.2d 437

Susan E. Taylor, New Bedford, for the defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, BROWN, & RUBIN, JJ.

RUBIN, J.

78 Mass.App.Ct. 215

After a jury trial in the Superior Court, the defendant, Juan Santos Quinones, was convicted as a joint venturer of assault and battery, see G.L. c. 265, § 13A, armed robbery while masked, see G.L. c. 265, § 17, and assault by means of a dangerous weapon, see G.L. c. 265, § 15B( b ). He now appeals.

1. Background. Viewing the evidence presented at trial 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 could have found the following facts. On the evening of August 5, 2007, the defendant telephoned Jose Lebron and told him to

78 Mass.App.Ct. 216

come to the defendant's house, at 30 Elmdale Street in Springfield, because they had "to do something." Lebron was about fifteen minutes away, and arrived at the house, which comprised two apartments, at approximately 9:30 p.m. He was met there by his younger brother Angel Lebron, Jonathan (Jay) Casiano, and the defendant. Angel was instructed to leave. Lebron, Casiano, and the defendant sat on the front porch, where the defendant informed Lebron that the three of them were going to rob a nearby Cumberland

936 N.E.2d 438

Farms convenience store and divide the money. The three men had a conversation about how they were going to perform the robbery, and Lebron understood that his role was "to go in with them and to hold the knife."

At some point in the evening, while still on the defendant's front porch, Casiano provided Lebron with two sweaters and a large hunting knife. Casiano fashioned one sweater around Lebron's head as a makeshift mask. The second sweater provided by Casiano had been modified: thumb holes had been cut into the sleeves so that the material would cover Lebron's fingers and hands when worn. Casiano donned a similar, modified sweater and a mask made from cutting eye holes in a shirt sleeve. Both men also put on hats. The defendant was present when Lebron and Casiano dressed for the robbery.

At approximately 2:30 a.m., Lebron, Casiano, and the defendant left the porch together. While the defendant mounted a bicycle and began to ride back and forth on the street in front of his house, Lebron and Casiano stopped briefly in the defendant's driveway, where Casiano removed a shiny metal object from a bag. Lebron, Casiano, and the defendant then proceeded together up the street, toward the Cumberland Farms-Lebron and Casiano on foot, the defendant on the bicycle. Lebron and Casiano entered the driveway at 21 Elmdale Street, which abuts the rear of the Cumberland Farms property. The defendant remained on his bicycle in the street, where he had a view of the driveway.

The three men were observed by Brytnee Woods, a neighbor of the defendant and the girlfriend of Lebron's brother Angel. Believing that something bad was going to happen and trying to stop Lebron, she walked down to the driveway at 21 Elmdale. By the time she arrived, Casiano had already scaled the chain

78 Mass.App.Ct. 217

link fence separating the driveway from the store. As Woods spoke to Lebron in the driveway, a resident of 21 Elmdale came outside and began speaking to Casiano through the fence. Eventually, both Lebron and Casiano returned to the defendant's front porch and Woods returned home. At some point thereafter, the defendant went and sat in front of a Dunkin' Donuts establishment that was across the street from the front entrance of the Cumberland Farms. The defendant called Lebron on his cellular telephone and told him that "it was fine out front, that there was no cop."

Shortly after 3:00 a.m., Sylvia Walker, a Cumberland Farms employee in her late fifties, and a neighbor of the defendant, went outside the store and sat on some milk crates to eat a meal during her break. As she sat down, Lebron and Casiano came up behind her, one of them putting a gun to her head. They told her not to move or turn around. Walker recognized the voice of the gunman as that of Casiano, who worked across the street at the Dunkin' Donuts and was a frequent customer of the convenience store. Thinking it was a joke, she told him, "Jonathan, stop playing."

Casiano grabbed Walker by the shirt and pulled her toward the back of the store. When she fell to the ground, hitting her knees, Casiano dragged her by her shirt. As Walker was being dragged, her shirt was pulled up around her neck, and eventually rose up around her hands. Casiano tied her by her wrists to a chain link fence behind the store, leaving her topless with her shirt still above her head. He then gagged her. Casiano ran the gun over her face and head, and cocked it, putting it to the back of her head. During this time, Lebron received another call from the defendant. Lebron handed the

936 N.E.2d 439

phone to Casiano, who was given the signal that it was okay to enter the store.

The two men entered the Cumberland Farms through a side door and encountered a second employee, Robert Plaine, who was putting away a delivery. Casiano put the gun to Plaine's head and instructed him to open the registers. Plaine, too, recognized Casiano's voice. Plaine opened the cash registers, the drawers of which contained about $160 in cash, mostly in small bills, and some change. Casiano instructed Plaine to lie on the ground or "I'll kill you." Lebron and Casiano then grabbed the trays from the cash register drawers and fled the

78 Mass.App.Ct. 218

store. Once the robbers left, Plaine called 911 and then went to find Walker.

In the interim, however, Walker had managed to free herself from the rope Casiano had used to tie her to the fence. She had run to the Dunkin' Donuts across the street for help. She saw the defendant, whom she recognized from his daily visits to her store, sitting outside. He said, "I'm here to help. I'm going to help you," and assisted her in removing the gag from around her neck and putting her shirt back on. She then went inside the Dunkin' Donuts and asked the employees there to call 911. She recalls that, as she sat inside the Dunkin' Donuts crying, the defendant was standing outside the window, talking on his cellular telephone; she thought he was calling the police. Meanwhile, Lebron and Casiano once again scaled the fence behind the Cumberland Farms and ran with the cash register trays to the defendant's house.

The police were able to follow a trail of pennies from the driveway at 21...