Commonwealth v. Rogers

• Decision Date: 08 April 2011
• Docket Number: SJC–10278.
• Citation: Commonwealth v. Rogers, 459 Mass. 249, 945 N.E.2d 295 (Mass. 2011)
• Parties: COMMONWEALTHv.Daniel ROGERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 249

945 N.E.2d 295

COMMONWEALTH

v.Daniel ROGERS.

SJC–10278.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 10, 2010.Decided April 8, 2011.

Peter B. Krupp, Boston, for the defendant.Elisabeth Kosterlitz Martino, Assistant District Attorney(Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹COWIN, J.

The defendant was convicted of the murder in the first-degree of Cristian Giambrone on the theory of felony-murder with armed robbery as the predicate felony.The defendant was also convicted of assault and battery with a dangerous weapon, to wit, a knife, arising from his attack on Henry Young.²The case is before us on the defendant's direct appeal from these two convictions.He claims that, because any force or threats occurred only after the alleged robbery, the judge instructed improperly on armed robbery and that instruction was critical because, absent the armed robbery, there could be no conviction of felony-murder.The defendant asserts in addition that the judge should not have instructed that store employees may use reasonably necessary force to detain a shoplifter; she should have instructed on the lesser included offense of shoplifting; and she stated improperly that the Commonwealth had proved that the killing was unlawful.The defendant maintains also that the judge violated his right to a public trial by closing the court room to the public (except for the defendant's mother); and that the judge committed several other errors at trial.

We reject the defendant's arguments and, after review of the entire record, conclude that there is no reason to exercise our extraordinary power pursuant to G.L. c. 278, § 33E, to reduce the murder verdict or to grant him a new trial.We affirm the defendant's convictions.³

1.Background.A jury could have found the following facts.The defendant and two friends, Tashia Sneed and Quinnace Horton, admittedly “professional” shoplifters, habitually shoplifted merchandise from small stores, selling it to support their drug habits.On February 16, 2004, the defendant and the two others were engaged in shoplifting at the CVS store on Longwood Avenue in Boston.When the defendant was detected stealing toothpaste, he ran from the store, chased by Cristian Giambrone, a CVS clerk.Henry Young and Showky Lara, two other CVS employees, became aware of the situation and joined the chase.Two or three employees wore blue CVS uniform shirts with the CVS logo on the front.Giambrone was the first to catch up to the defendant and “flung” him against a wall.The employees struggled with the defendant as toothpaste fell from his coat.Lara told the defendant that they were taking him back to the CVS store because he had been shoplifting.The defendant refused to go and reached into his pocket, “flick[ed]” something and stabbed Young and then Giambrone.The latter died from his injuries.

The defense at trial was lack of identification of the defendant as the stabber.In the event the defendant were the stabber, he claimed self-defense.In addition, the defendant attacked the quality of the police investigation.

2.Armed robbery instruction.As stated, armed robbery was the predicate felony for the defendant's conviction of felony-murder.The defendant maintains that the judge's instruction on armed robbery (reprinted in the margin)⁴ was flawed because it permitted the jury to convict the defendant if they found that he stabbed the two victims solely in an effort to escape and that, before the stabbing occurred, he had abandoned his attempt to steal the toothpaste.To avoid such a possibility, the defendant requested an instruction, the content of which is reprinted in the margin.⁵The judge did not give the requested instruction and, after she completed her charge, the defendant objected to the omission of this instruction.We review to determine whether there was error, and, if so, whether the error prejudiced the defendant.Commonwealth v. Flebotte,417 Mass. 348, 353, 630 N.E.2d 265(1994).

The judge's instruction was proper.It conveyed to the jury that a conviction of armed robbery must be based on a conclusion that the defendant was armed with a dangerous weapon during his taking of the property or his escape from the scene.⁶SeeG.L. c. 265, § 17(“Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property which may be the subject of larceny shall be punished by imprisonment ...”).The defendant, however, seeks to parse the crime of armed robbery by dividing it into discrete segments.He claims that when he stabbed the victims he had “abandoned” his intent to steal the property; thus, because the stabbing was separated from the taking of the property and that taking lacked the element of force, the taking never became an armed robbery.This argument fails because, as the judge stated in the final paragraph of the above-quoted instruction, the force necessary for robbery may be used either to accomplish the taking of the property or to effect the escape.

Our decision in Commonwealth v. Mavredakis,430 Mass. 848, 854–855, 725 N.E.2d 169(2000), illustrates that the crime is not to be segmented as the defendant would have us do.In the Mavredakis case, the defendant and his joint venturers broke into an empty restaurant and removed the contents of the safe.When the manager returned, the defendants hid and then shot him.The defendant argued that the crime was one of breaking and entering only and that the victim was shot in the course of that crime.He contended that no force was used until after the intruders completed the taking of the property and thus no armed robbery had occurred.We concluded, contrary to the defendant's contention, that “what began as a breaking and entering and a larceny was converted into an armed robbery once the victim arrived on the scene.”Id. at 855, 725 N.E.2d 169.

Other cases have similarly refused to adopt the defendant's approach.In Commonwealth v. Rajotte,23 Mass.App.Ct. 93, 499 N.E.2d 312(1986), discussed with approval inCommonwealth v. Mavredakis, supra at 854–855, 725 N.E.2d 169, the defendant's theft was interrupted by a restaurant employee.After being convicted of armed robbery, the defendant argued on appeal, much as the defendant does here, that the taking was “not effected by force or threat of force” and thus was only a larceny and not a robbery.He contended that the intimidation occurred only after he was caught by the employee.Rejecting the defendant's theory, the Appeals Court held that the larceny was converted into a robbery because the assault was committed on a person with a “protective concern” for the goods taken (akin to that of the victims in the present case) who had interfered with the completion of the theft (similarly to the victims here).Id. at 94–96, 499 N.E.2d 312.SeeCommonwealth v. Sheppard,404 Mass. 774, 778, 537 N.E.2d 583(1989)(“Even if the jury believed that the defendant pushed [the victim] immediately after the defendant actually took the [property], the jury were free to draw the reasonable inference that the defendant used the force to facilitate the larceny”);Commonwealth v. Smith,21 Mass.App.Ct. 619, 624, 489 N.E.2d 203(1986), S.C.,400 Mass. 1002, 508 N.E.2d 598(1987)(fact finder may look at episode “as a continuum and reject as a manufactured abstraction” idea that assault occurred after taking was completed).Cf.Commonwealth v. Goldstein,54 Mass.App.Ct. 863, 867–870, 768 N.E.2d 595(2002).Our appellate courts have refused to segment the crime of armed robbery; we continue to refuse to do so.⁷

The defendant maintains, however, that “if Rogers armed himself after abandoning, or attempting to abandon, the toothpaste and without a continuing intent to effectuate the taking, he has not committed an armed robbery.”Even if there were evidence of abandonment, there is no evidence that the defendant armed himself after such abandonment.When the defendant pulled a knife from his clothing he was engaged in a struggle with three men who had chased him directly from the CVS store.The three employees had followed him from the store until they caught him a short distance from it.There is no evidence that the defendant armed himself between his taking of the goods and his physical confrontation with the employees.

Moreover, the concept of abandonment is not applicable here.“Abandonment” is a term associated with joint venture and requires that there be “at least an appreciable interval between the alleged termination and [the commission of the crime], a detachment from the enterprise before the [crime] has become so probable that it cannot reasonably be stayed.”Commonwealth v. Miranda,458 Mass. 100, 118, 934 N.E.2d 222(2010), quotingCommonwealth v. Cook,419 Mass. 192, 202, 644 N.E.2d 203(1994).

The defendant argues that he was abandoning the toothpaste, but there was no evidence of abandonment.The defendant was simply caught in the act of stealing the toothpaste and seeking to make his escape.The evidence indicates that the goods were falling from his clothing.There was no evidence that he was actively throwing anything from his person.Even if his actions could theoretically be viewed as abandonment, there must be “an appreciable interval between the alleged termination and the fatal [act.]”Commonwealth v. Dellelo,349 Mass. 525, 529–530, 209 N.E.2d 303(1965).In that case, we were discussing the time necessary between a robbery and a killing for the robbery to have ended and therefore to be separate from the killing.We said that

“[w]hether the ... crime was completely over ... [is] marked by what is done, rather than what is thought....An attempted robbery is not ended merely because one or both of the robbers cease to desire to proceed, has in mind only a purpose...