Com. v. Rajotte

• Decision Date: 31 December 1986
• Citation: 499 N.E.2d 312,23 Mass.App.Ct. 93
• Parties: COMMONWEALTH v. Thomas RAJOTTE.
• Court: Appeals Court of Massachusetts

Page 312

499 N.E.2d 312

23 Mass.App.Ct. 93

COMMONWEALTH v. Thomas RAJOTTE.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 9, 1986.

Decided Nov. 5, 1986.

Further Appellate Review Denied Dec. 31, 1986.

Maureen B. Brodoff, Committee for Public Counsel Services, for defendant.

J.W. Carney, Jr., Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and CUTTER and DREBEN, JJ.

DREBEN, Justice.

The defendant appeals from his convictions of armed robbery and assault and battery by means of a dangerous weapon. ¹ He claims he was entitled to a required finding of not guilty on each charge: (1) on the armed robbery charge because the use of force by the defendant, when interrupted by the victim, occurred subsequent to the taking, and because the taking was not "from the person"; (2) on the assault and battery by means of a dangerous weapon charge, because there was no showing that the defendant intentionally used the knife on the victim. We affirm the convictions.

The Commonwealth presented the following evidence. The defendant broke into a restaurant and took an envelope containing money and a check from a freezer in the kitchen. An employee entered the restaurant at 1:30 A.M. and found the defendant, envelope in hand. Upset by the man's presence and his false claim that he worked in the restaurant, the employee turned to use the telephone. The defendant picked up a long knife, told the employee to get away, and cut the telephone cord. The employee ducked into the hallway and was followed by the defendant, who was still wielding the knife. In an effort to defend himself, the employee tried to grab the knife handle but was only able to grasp the blade. In the struggle his fingers were cut.

1. Armed robbery. Relying on Commonwealth v. Novicki, 324 Mass. 461, 87 N.E.2d 1 (1949), the defendant argues that the taking was not effected by force or threat of force and hence was only a larceny and not a robbery. The intimidation occurred, he claims, only after he was caught by the employee. Novicki, however, is to be distinguished. As explained in Commonwealth v. Jones, 362 Mass. 83, 90, 283 N.E.2d 840 (1972), in Novicki, "the alleged robber had left the victim's presence undetected and was in the process of leaving through a door before he was noticed." Moreover, the court in Novicki, 324 Mass. at 465, 87 N.E.2d 1, specifically pointed out that the "crime may be considered as continuing at least until the defendants left the store with the money."

A larceny may be converted into a robbery if, as here, an assault is committed on a person who, having some protective concern for the goods taken, see Commonwealth v. Stewart, 365 Mass. 99, 108, 309 N.E.2d 470 (1974), interferes with the completion of the theft. In Commonwealth v. Assad, 19 Mass.App.Ct. 1007, 1009 (1985), would-be thieves, after being interrupted in their task by a returning tenant, assaulted him. One of the culprits was charged under G.L. c. 265, § 18A, with assault with a dangerous weapon in a dwelling house with intent to rob. He sought to show that the assault (use of a spray) was to facilitate an escape from the victim's apartment, not to steal from the victim by putting him in fear. The court, however, held that the evidence supported an inference that the assault "was connected to the objective of stealing property" and that the entry into the apartment by the victim, who was placed in fear, "converted the larceny ... to a robbery."

Although in Assad the defendant was convicted of an assault with intent to rob (see G.L. c. 265, § 18A), and here the crime is armed robbery (G.L. c. 265, § 17), we see no relevant distinction. See also Commonwealth v. Boiselle, 16 Mass.App.Ct. 393, 399, 451 N.E.2d 1178 (1983), where a robber armed himself after taking the property but while still in the store. The court in Boiselle noted that the "potential for injury does not depend on the precise moment at which the defendant becomes armed, as long as he becomes armed at a point directly related to the commission and completion of the robbery." Id. at 400, 451 N.E.2d 1178. See also Commonwealth v. Smith 21 Mass.App.Ct. 619, 624, 489 N.E.2d 203 (1986), indicating that a factfinder may look at such an episode "as a continuum and reject as a manufactured abstraction" the idea that the assault occurred after the taking was completed. Cf. Commonwealth v. Jones, 362 Mass. at 89-90, 283 N.E.2d 840. ²

The defendant's claim that the taking was not "from the person" is also without merit. While the statute speaks of a taking from the victim's "person," the offense is understood "to include the common law conception of taking in a victim's 'presence' ... and ... cover[s] cases where the victim could have prevented the taking, had he not been intimidated." Commonwealth v. Stewart, 365 Mass. at 108, 309 N.E.2d 470. See also ...