Commonwealth v. Palmer
| Citation | 59 Mass. App. Ct. 415 |
| Decision Date | 25 September 2003 |
| Docket Number | No. 02-P-784.,02-P-784. |
| Parties | COMMONWEALTH v. Jason M. PALMER. |
| Court | Appeals Court of Massachusetts |
Robbery. Evidence, Fingerprints, Business record, Joint enterprise, Joint venturer. Joint Enterprise. Practice, Criminal, Instructions to jury.
Indictments found and returned in the Superior Court Department on March 16, 2000.
The cases were tried before James P. Donohue, J.
David B. Mark for the defendant.
Harry D. Quick, III, Assistant District Attorney, for the Commonwealth.
Present: Beck, Kass, & Doerfer, JJ.
The defendant was convicted by a jury of armed robbery while masked, G.L. c. 265, § 17, and related crimes.[1] The evidence described a robbery of a BJ's Wholesale Club (BJ's) in Leominster, by two individuals armed with handguns and wearing masks. They were aided by a third man who was in communication with the first two by means of a walkie-talkie. The defendant challenges the sufficiency of the evidence, which included the defendant's fingerprints on a vehicle used to escape from the scene and certain business records showing the recent sale of walkie-talkies to a person giving the name and address of the defendant. He also claims the jury charge omitted sufficient references to the requirement that a joint venturer must have knowledge that the perpetrators inside the store were armed. We affirm.
1. Facts. We set forth the evidence favorable to the Commonwealth in some detail in order to review the reasonableness of the inferences which the jury were asked to make to identify the defendant as a perpetrator of the crimes charged. At least three persons were involved in a masked armed robbery of BJ's in Leominster on July 8, 1999. As he was performing his closing duties at the store around 9:00 P. M.,[2] Jeremy Larouche, the store closing manager, was confronted by two men wearing dark hooded sweatshirts, dark pants, dark gloves, and "Darth Maul" masks. He noticed the taller of the two had a silver revolver and later saw that the shorter man had a very small black or dark blue semiautomatic hand gun. The taller man seemed, to Larouche, to be in charge. The smaller man had a Hispanic accent. The taller of the two was between five feet ten inches and six feet tall. Some blond hair was sticking out where his hood reached the mask. He appeared to Larouche to be thin, about 180 pounds. The other man was around five feet eight or nine inches tall and had a "dumpy" build.
The taller man yelled at Larouche, threw him to the floor, and handcuffed him. When asked by the taller man if anyone else was in the store, Larouche told him a female employee was still present. One of them left, apprehended the other employee, Cheryl Buono, and brought her back where she was thrown on top of Larouche. Her hands were tied tightly behind her back with tie wrap. The assailants then asked who was the manager and Larouche told them he was. They uncuffed him, pulled him up, and re-cuffed him with his hands in front. They then took his keys and demanded to be taken to the safe. As they were walking toward the location of the safe, the shorter man went down an aisle and came back with two large, wheeled duffle bags. Buono was left on the floor and threatened with death if she screamed.
Larouche was then pulled into an aisle and relieved of his wallet. The taller man removed Larouche's license and told him they wanted to know his identity so they could get him if he "fucked them." The taller man also started talking via a two-way radio to a third man, asking him if it was all clear and whether any alarms were going off. The radio had the Radio Shack brand name on it. In the course of events, Larouche heard several transmissions in which the third man inquired whether there were any problems and how things were going.
The two assailants then led Larouche to the office where the cash was kept. They knew which door to go to even though there were several doors marked "employees only." The assailants directed Larouche to punch in a code to open the door and disarm the alarm. They pointed to the cash room within the office and identified the unlabeled alarm key pad without any guidance from Larouche.
They ordered Larouche to open the safe, which contained cash, gift certificates, and checks totaling over $51,000. The assailants put everything into the large duffle bags. Upon inquiry, Larouche told them that a cabinet in the cash room contained jewelry. They put the jewelry, worth about $27,000, into the duffle bags as well. They took Larouche's keys, including his truck keys, and the taller man said to the shorter one: "Let's go get the tapes." The shorter man then led Larouche to a door marked "employees only." This was the security room containing a video surveillance system and surveillance tapes. The shorter man demanded the tapes for "today and yesterday."
The two assailants threw the loaded duffle bags onto a carriage and ordered Larouche to push it to the rear of the store. As they approached the back of the store, there was a heated conversation with the third man on the radio about what door to use to leave the building. The third man said the only vehicle in the area was a red truck. Larouche told them it was his. They made Larouche pick out his truck key from among the keys taken from him in the cash room and said they were going to take his truck. At the back door, they made him disable the alarm, threatening to kill him and Buono if the alarms went off. The shorter man then bound Larouche with cable wire that was kept in the tire area. He stood guard over Larouche while the taller one took the carriage with the duffle bags outside. Shortly thereafter, the shorter man joined the taller one outside, leaving Larouche and Buono tied up inside the store.
Another employee, Ronda Paris, had left the store at 9:30 P.M. and was waiting for a ride from her son. She was sitting at the entrance to the tire bay under a light reading a book. At about 9:50 P. M., as the taller assailant walked by on his way to Larouche's truck with the carriage and the duffle bags, he told her to get into a corner and not to look at him or he would shoot her. She saw he had a shiny object which she perceived to be a gun. After she turned around, she heard another person come to the passenger side of the truck, bang on the door, and ask to be let in. She also heard the sound of something being thrown into the bed of the truck and heard the driver say he had to "go around back and pick up my friend." There is a dirt roadway that goes to the back of the store.
Paris's son then arrived and she instructed him to call the police from a nearby hotel while she went back into the store to help free the two captives. Larouche called 911 and the police arrived within a minute. Larouche saw a brown car that looked like an old Oldsmobile or Pontiac moving slowly in the area of the business establishment next door and then take off quickly. As the police were approaching BJ's, they did not see the red truck on any of the roads in the vicinity of the store.
At 12:47 A. M., the police recovered the truck at the rear of a business a short distance from BJ's. It was parked at a loading dock in a corner in such a position that it could not be observed from the road. This location was about a two-minute drive from the back of BJ's. All businesses were closed when the truck was found.
The vehicle was a red Nissan pickup truck with bucket seats and an extended cab with a sliding window leading to the open bed. The window was equipped with a catch lock that Larouche kept locked. He had washed the truck within the week before the robbery and although he had parked it in the store parking lot and in other public places from time to time during that week, only he and his stepfather had access to and use of the truck, and his stepfather had not used it recently. Larouche did not know the defendant or know of any reason for the defendant to be in or around his truck at any time.
Several gloves were found in the truck that were similar to those worn by the assailants. A pair of Radio Shack walkie-talkies, model number 1804, were found in the truck. A custodian of the records of Radio Shack produced records showing that a Radio Shack walkie-talkie, model 1804, was sold on June 30, 1999, to a person who gave the name of Jason Palmer and an address of 3 Old Pickard Lane in Littleton. Another walkie-talkie, model 1803, was sold on June 28, 1999, to a person also giving his name as Jason Palmer and address of "3 Old Pickard Ln." The Radio Shack witness testified that the model 1803 walkie-talkie could communicate with the model 1804 found in the truck. In both cases, the purchaser gave a telephone number associated with the defendant. There was evidence the defendant had lived at 3 Old Pickard Lane in Littleton.
The defendant's fingerprints were found on the interior and exterior of the truck. One lift showed his fingers pointing downwards on the passenger door at the base of the passenger window frame. Another showed a fingerprint on the latch located in the interior of the truck by which the window opening into the bed of the truck could be made secure.
Telephone records were introduced in evidence showing several calls were made in June and July, 1999, from BJ's to a telephone located at the address of the defendant's girlfriend. Evidence was also introduced showing two brothers named Sizemore worked at BJ's and had been seen associating with the defendant at that address.
2. Fingerprint evidence. Relying on Commonwealth v. Fazzino, 27 Mass.App.Ct. 485, 487 (1989), the defendant argues the only identification evidence was his fingerprints at the crime scene and there was insufficient evidence reasonably to exclude the hypothesis that those prints were placed on the truck at a time other than during the crime.[3] He points to the fact that there was a three-hour time interval between the commission of the crime and the...
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