Com. v. Royce

• Decision Date: 31 July 1985
• Parties: COMMONWEALTH v. Louis ROYCE et al. 1
• Court: Appeals Court of Massachusetts

Page 198

479 N.E.2d 198

20 Mass.App.Ct. 221

COMMONWEALTH v. Louis ROYCE et al. ¹

Appeals Court of Massachusetts Suffolk.

Argued Feb. 14, 1985.

Decided June 14, 1985.

Further Appellate Review Denied July 31, 1985.

Walter T. Healy, Boston, for Stephen Rossetti.

John Salsberg, Boston, for Joseph A. Sousa.

Kevin J. O'Dea, Boston, for Louis Royce.

Robin A. Pearl, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, DREBEN and WARNER, JJ.

WARNER, Justice.

The defendants were convicted of conspiracy to assault and to rob employees of Brink's, Inc. Their appeals raise a common claim of prosecutorial misconduct and other discrete issues.

1. Royce's motions for a required finding of not guilty. At the close of the Commonwealth's evidence and again at the close of all of the evidence, Royce's motions for a required finding of not guilty were denied. On appeal, Royce argues that it was error to deny the motion presented at the close of the Commonwealth's case; he does not argue that the Commonwealth's case deteriorated from that time to the close of all of the evidence. See Commonwealth v. Kelley, 370 Mass. 147, 150 and n. 1, 346 N.E.2d 368 (1976). In reviewing the denial of the motion "we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

Royce argues that, since the Commonwealth did not offer evidence that he participated in the final preparatory stages of the robbery or in its commission, it was established that he withdrew from the conspiracy. Reviewing the evidence in the light most favorable to the Commonwealth, a jury could have found that Royce suggested the idea of the robbery to the other defendants, participated in its planning, and negotiated with the other defendants a ten percent take of the proceeds of the robbery, but that he did not actively participate in the robbery because of an injured leg. This evidence was sufficient to establish a conspiracy, as it showed the formation of an agreement between Royce and the others to seek, by concerted action, the accomplishment of a criminal act. The crime of conspiracy is complete with the formation of the unlawful agreement. See Commonwealth v. Cerveny, 387 Mass. 280, 288, 439 N.E.2d 754 (1982); Commonwealth v. Benjamin, 3 Mass.App. 604, 618 and n. 27, 339 N.E.2d 211 (1975); Commonwealth v. Cook, 10 Mass.App. 668, 670-671, 411 N.E.2d 1326 (1980); Commonwealth v. Corridori, 11 Mass.App. 469, 476, 417 N.E.2d 969 (1981). The defendant's lack of participation in the final preparatory stages and the commission of the robbery did not require a directed verdict as, even had his absence signified his disassociation from the venture, "withdrawal from a conspiracy has not been shown to have any effect upon the commission of the common law offense of conspiracy to commit a crime under Massachusetts law." Commonwealth v. Nighelli, 13 Mass.App. 590, 596-597, 435 N.E.2d 1058 (1982). See Commonwealth v. Dellinger, 10 Mass.App. 549, 556, 409 N.E.2d 1337 (1980), S.C. 383 Mass. 780, 422 N.E.2d 1346 (1981); Nolan, Criminal Law § 452, at 289 (1976).

2. Rossetti's motion to suppress. Rossetti challenges the denial of his motion to suppress evidence of instrumentalities of the robbery found in a locker, a key to which was found in a search of his apartment, asserting error both in the motion judge's subsidiary findings of fact and in his determination that Rossetti lacked a legitimate expectation of privacy in the locker. ²

"The determination of the weight and credibility of the testimony [on a motion to suppress] is the function and responsibility of the judge who saw and heard the witnesses ... [W]here subsidiary findings of fact have been made ... they will be accepted by this court, and we do not substitute our judgment ... absent clear error." Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980), and cases cited. See Commonwealth v. King, 389 Mass. 233, 234 n. 1, 449 N.E.2d 1217 (1983). There is no merit in Rossetti's contention that there was clear error in the motion judge's decision not to credit Rossetti's testimony and that of the superintendent of the building in which the locker was located. The judge totally rejected Rossetti's testimony based on his "demeanor on the stand" and the "wildly inconsistent nature" of his testimony, ³ and that of the superintendent, assessing him as a "nervous and insincere" witness. Instead, the judge accepted the testimony of the State police officer who searched the locker and the affidavit of the superintendent, made contemporaneously with the search, which corroborated the police officer's testimony and differed from the superintendent's testimony "in virtually all significant respects."

There was no error in the judge's determination that Rossetti had no legitimate expectation of privacy in the locker. "A person cannot claim to have been the victim of a search violative of the Fourth Amendment [and art. 14 of the Declaration of Rights of the Constitution of the Commonwealth] unless he had a legitimate expectation of privacy in the particular circumstances." Sullivan v. District Court of Hampshire, 384 Mass. 736, 741-742, 429 N.E.2d 335 (1981). United States v. Salvucci, 448 U.S. 83, 92-93, 100 S.Ct. 2547, 2553-2554, 65 L.Ed.2d 619 (1980). Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980). Commonwealth v. Ford, 394 Mass. 421, 423-424, 476 N.E.2d 560 (1985), S.C. 17 Mass.App. 505, 459 N.E.2d 1242 (1984). "The burden is on the defendant to 'establish not only that he had a real, subjective expectation of privacy ..., but that this expectation, viewed objectively, was reasonable.' " United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982), quoting from United States v. Goshorn, 628 F.2d 697, 700 (1st Cir.1980). "[A] legitimate expectation of privacy means more than a subjective expectation of keeping incriminating evidence hidden." United States v. Hershenow, supra. The judge's findings that the locker was located in the defendant's grandparents' apartment building, and that it was opened by the police with a key found in the defendant's apartment, were not inconsistent with his conclusion that the defendant had no authority to use the locker or to exclude others from access to it. See Rawlings v. Kentucky, supra, 448 U.S. at 105, 100 S.Ct. at 2561.

3. Prosecutorial misconduct in closing argument. On the last day of trial, a Friday afternoon, the prosecutor in closing argument referred to the defendants as "career criminals." This characterization prompted an objection from Royce's defense counsel, who suggested that the judge "make an instruction to the jury on Monday morning" regarding the reference. On Monday morning the judge, conferring with counsel, stated "I think counsel will agree that what they wanted me to do is to tell the jury to disregard that remark. It was inadvertent and there was no such evidence in this case. Does everybody agree with that?"

All counsel answered in the affirmative, and the judge accordingly instructed the jury:

"Before we begin, after consulting with counsel, I want to say to you that there were some inadvertent misstatements, we are all agreed, misstatements made by the prosecutor in this case in his closing argument, which I have been asked by everybody to correct.

"In the first place, we think there was reference in argument to the defendants, Mr. Royce, Mr. Sousa, and Mr. Rossetti of being criminals. There is no such evidence in this case, and that is an inadvertent statement."

On appeal, counsel for all defendants argue that this curative instruction was insufficient.

Defense counsels' affirmations of the judge's proposed action, suggested by counsel for Royce, and their failure to make an objection at the close of the curative instruction, indicate to us that the misstatement had been corrected to all counsels' satisfaction. Commonwealth v. Grammo, 8 Mass.App. 447, 457, 395 N.E.2d 476 (1979). We therefore limit our review to a determination whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). See Commonwealth v. Gaeten, 15 Mass.App. 524, 526, 446 N.E.2d 1102 (1983). "In analyzing whether an improper remark is prejudicial or presents a risk of a miscarriage of justice, the remark must be considered in the context of the prosecutor's entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial." Commonwealth v. Fitzgerald, 376 Mass. 402, 416, 381 N.E.2d 123 (1978).

The scope of closing argument is limited to a summation of the evidence and all fair inferences from the evidence. Commonwealth v. Burke, 373 Mass. 569, 575, 369 N.E.2d 451 (1977). Moreover, the government is not entitled in closing argument to attack the character of a defendant if it has not been placed in issue at trial. Id. at 575, 369 N.E.2d 451. There is no doubt that the prosecutor's reference to the defendants as "career criminals" was beyond the evidence and prejudicial. However, we think that the prejudicial effect of this isolated remark was sufficiently cured by the judge's specific curative instruction that no evidence in the case supported the prosecutor's inadvertent statement, and by the judge's final instructions in which he told the jury that counsel "may misstate unintentionally the evidence," that arguments of counsel were not evidence and that it was the jurors' recollection of the evidence which controlled. See Commonwealth v. Stone, 366 Mass. 506, 511, 320 N.E.2d 888 (1974). The prosecutor's argument as a whole was fair, and he too stressed that the...