Commonwealth v. Fuentes

702 N.E.2d 814, 45 Mass. App. Ct. 934, 1998 Mass. App. LEXIS 1271
CourtMassachusetts Appeals Court
DecidedDecember 2, 1998
DocketNo. 96-P-1781
StatusPublished
Cited by9 cases

This text of 702 N.E.2d 814 (Commonwealth v. Fuentes) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Fuentes, 702 N.E.2d 814, 45 Mass. App. Ct. 934, 1998 Mass. App. LEXIS 1271 (Mass. Ct. App. 1998).

Opinion

The defendant was convicted by a Superior Court jury of arson of a dwelling, on a theory of joint venture.1 On appeal, the defendant contends that the trial judge should have granted his motion for a required finding of not guilty, and that the defendant’s postarrest statements should have been suppressed.

The jury could have found the following facts beyond a reasonable doubt. The defendant was walking past an apartment building when he encountered five other men with whom he was acquainted. One of these men was carrying a large screwdriver or crowbar, another was carrying a gas can, and another was carrying matches. One of the men told the defendant to watch out for police. The defendant stayed at the rear of the building, and was observed by a witness inside the same building who was looking out her bedroom window. The witness, who was previously acquainted with the defendant, testified that she saw the defendant’s head “moving around.”

From a different window, the witness saw four of the other defendants breaking into the building. Approximately five minutes later, she saw the four run out of the building, screaming. The witness then saw flames and smoke. Four days after the fire, the witness’s mother was confronted by the defendant, who told her that he knew she was the one that “snitched” on him, and that he was going to do something to her that she would regret.

Motion for required finding. In reviewing the denial of a motion for a required finding of not guilty, an appellate court must determine whether, [935]*935“upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Andrews, 427 Mass. 434, 440 (1998), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (emphasis in original). “We may consider circumstantial evidence of guilt together with inferences drawn therefrom that appear reasonable and not overly remote.” Commonwealth v. Andrews, 427 Mass. at 440.

“The test [for joint venture] is whether [the] defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.” Commonwealth v. Morse, 42 Mass. App. Ct. 936, 937 (1997), quoting from Commonwealth v. Longo, 402 Mass. 482, 486 (1988).

In the present case, the Commonwealth based its theory of joint venture on a contention that the defendant served as a lookout for five other individuals who actually started the fire. The defendant admits to having been present at the fire, and to having seen the other defendants carrying various arson-related implements. However, the defendant argues that there is no evidence of agreement between the defendant and the other perpetrators.

“[A] person who acts as a lookout while others are engaged in a criminal enterprise can be convicted on a joint enterprise theory.” Commonwealth v. Ward, ante 901, 902 (1998), quoting from Commonwealth v. James, 30 Mass. App. Ct. 490, 499 n.10 (1991). See Commonwealth v. Pope, 15 Mass. App. Ct. 505, 510-511 (1983) (“the defendant by prearrangement was stationed in a position where he might render ... aid and encouragement, as a lookout. . . or as a decoy . . . or as an ally in making escape or in meeting any eventuality” [internal quotations omitted]).

Moreover, joint venture liability may arise without prior planning or agreement. It is “enough that at the climactic moments the parties consciously acted together in carrying out the criminal endeavor, each thereby becoming responsible for the acts of the others. An element of mutual assent at those moments no doubt there is, but there need not have been an anticipatory compact.” Commonwealth v. Branch, 42 Mass. App. Ct. 181, 184 n.3 (1997), quoting from Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 513 (1987).

However, in order for the Commonwealth to withstand a motion for a required finding of not guilty, it cannot rely on evidence that merely places the defendant at the scene of the crime and shows him to be in association with the principals. Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986). Rather, the Commonwealth must present additional evidence which implicates the defendant in the crime. Ibid.

Such additional evidence exists in the present case. Here, beyond that evidence to which the defendant admits, there was the testimony of the witness who saw the defendant’s head “moving around,” apparently in the manner of a lookout. It is true that this evidence, standing alone, might not have been enough to warrant a finding of guilty. See Commonwealth v. Ward, 45 Mass. App. Ct. at 902. See also Commonwealth v. Saez, 21 Mass. App. Ct. at 412.

However, there is additional evidence of intent and agreement. For example, the other perpetrators had called out to the defendant, and asked him to serve [936]*936as a lookout. The defendant heard this request, remained at the scene, and was subsequently observed moving his head around. Thus, this case is unlike Saez, where the court found that, in the absence of additional evidence of guilt, the “defendant’s conduct equally suggests nothing more than that he probably realized that he was a witness to a crime.” Saez, 21 Mass. App. Ct. at 412.

Moreover, four days after the crime, the defendant threatened the mother of the witness who had spoken to the police. “[E]vidence regarding threats or intimidation of key witnesses for the prosecution is admissible to demonstrate consciousness of guilt.” Commonwealth v. Miles, 420 Mass. 67, 75 (1995). Commonwealth v. Scanlon, 412 Mass. 664, 676 (1992). Also, the defendant fled the scene after he saw the fire. Evidence of flight is probative of joint venture responsibility. See Commonwealth v. Andrews, 427 Mass. at 441; Commonwealth v. Amaral, 13 Mass. App. Ct. 238, 243-244 (1982).

Even though it may be a natural reaction for a person to flee when he or she sees a sudden fire in a building, the mere fact that there are two plausible explanations for why a defendant fled a crime scene does not mean that a jury is forbidden from finding that the flight was probative of guilt. See, e.g., Commonwealth v. Toney, 385 Mass. 575, 585 (1982) (judge need not specifically instruct jury on defendant’s explanation of why she fled scene — a general consciousness of guilt instruction is enough). In any event, the jury could have found that the defendant’s admission that he saw the other perpetrators with matches, gasoline and a crowbar nullified any claim he could make as to being surprised and frightened.

In sum, the circumstances of this case, “no one of which alone would be enough to convict the defendant, combine to form a fabric of proof that was sufficient to warrant the jury’s finding beyond a reasonable doubt” that this defendant participated in a joint venture to commit arson. Commonwealth v. Cordle, 404 Mass. 733, 741 (1989), quoting from Commonwealth v. Rojas, 388 Mass. 626, 630 (1983).

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Bluebook (online)
702 N.E.2d 814, 45 Mass. App. Ct. 934, 1998 Mass. App. LEXIS 1271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fuentes-massappct-1998.