Commonwealth v. Saez

487 N.E.2d 549, 21 Mass. App. Ct. 408, 1986 Mass. App. LEXIS 1367
CourtMassachusetts Appeals Court
DecidedJanuary 13, 1986
StatusPublished
Cited by35 cases

This text of 487 N.E.2d 549 (Commonwealth v. Saez) 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. Saez, 487 N.E.2d 549, 21 Mass. App. Ct. 408, 1986 Mass. App. LEXIS 1367 (Mass. Ct. App. 1986).

Opinions

Smith, J.

The defendant was indicted for the crime of unlawful possession of heroin with intent to distribute. At the conclusion of the Commonwealth’s evidence, the defendant filed a motion for a required finding of not guilty. The motion was denied, and it is the defendant’s sole contention on appeal that the judge’s action in denying the motion constituted error.

We recite the facts that could have been found by the jury. On October 28, 1983, three police officers were conducting a narcotics surveillance on King Street in Worcester. The defendant was observed standing in front of 20 King Street. At approximately 8:00 a.m. the defendant was approached by one Gonzales, who [409]*409was known to the police.1 The two men engaged in conversation in front of the building. About 8:15 a.m., another man arrived in an automobile. He got out of the automobile and approached the pair and engaged Gonzales in conversation. Gonzales gave the man a small red packet in exchange for some money. While this transaction was taking place, the defendant, who was standing within an arm’s length of Gonzales, looked up and down the street. The transaction did not take longer than a minute.

After the man left in his automobile, the defendant and Gonzales talked outside 20 King Street for a few minutes. They then walked up King Street onto King Terrace, where they entered a three-decker apartment building through the rear entrance. After spending a short time in a second floor apartment, they left the building by the same door, walked to the front of the building, and departed in a taxi.

At about 9:15 a.m. , a man and a woman arrived at the King Terrace address by automobile. The woman was known to the police, the man unknown. They left the automobile and entered the same second floor apartment which the defendant and Gonzales had previously entered. Shortly afterward, the defendant and Gonzales returned and reentered the apartment. Approximately a minute later the man and woman left the apartment, got into their car, and drove away.

A few minutes after the man and woman had departed, the defendant and Gonzales left the apartment and came downstairs to the yard. They separated, and the defendant walked up to King Street. He went to the front of the apartment building and looked up and down the street. Gonzales went to the rear of the apartment building and concealed a white bundle in the grass near a dumpster. The bundle was retrieved by the police. It turned out to be tissue paper wrapped around two silver foil packets. Each packet contained nine smaller red packets of white powder. The white powder was heroin.

In reviewing the denial of a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth in order to determine whether that evi[410]*410dence was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979); Commonwealth v. Pope, 15 Mass. App. Ct. 505, 508 (1983). Inferences drawn from the evidence may also be considered, provided that they “are not too remote according to the usual course of events.” Commonwealth s. Latimore, supra at 676. “The inferences . . . need not be necessary or inescapable, as long as they are reasonable, possible, and not unwarranted” because too remote. Commonwealth v. Chinn, 6 Mass. App. Ct. 714, 716 (1978). Commonwealth v. Walter, 10 Mass. App. Ct. 255, 257 (1980).

It was the Commonwealth’s theory at trial that the defendant and Gonzales were engaged in a joint enterprise on the morning of October 28, 1983. In order “[t]o sustain a conviction on the theory of joint enterprise, the defendant must be shown to have shared the mental state required for the crime, and to have assisted the principal intentionally in its commission.” Commonwealth v. Amaral, 13 Mass. App. Ct. 238, 241-242 (1982). Also see Commonwealth v. Soares, 377 Mass. 461, 470 (1979); Commonwealth v. Griffin, 19 Mass. App. Ct. 174, 178 (1985). Mere presence at the scene of the crime and the “failure to take affirmative steps to prevent it do not render a person liable as a participant.” Commonwealth v. Benders, 361 Mass. 704, 708 (1972). Commonwealth v. Pope, supra at 509. Commonwealth v. Griffin, supra at 178. Evidence that an accused associated with persons who committed the crime does not “justify an inference that [he also] participated in [its] commission.” Commonwealth v. Chinn, supra at 717. In order to sustain a conviction, “[t]here must be proof that the defendant somehow participated in committing the offense, by counseling, hiring or otherwise procuring the principal, by agreeing to stand by, at, or near the scene to render aid, assistance or encouragement if it became necessary, or to assist the perpetrator in making an escape from the scene.” Commonwealth v. Amaral, supra at 242. See Commonwealth v. Conroy, 333 Mass. 751, 755 (1956). The Commonwealth contends that the [411]*411defendant participated in the crime as a joint venturer by acting as a lookout while Gonzales had heroin in his possession with the intent to distribute. The defendant argues, however, that his actions did not rise to the level of participation required of a joint venturer and also that the evidence did not show that he had any possessory interest in the heroin.

It is clear that 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. Conroy, supra at 755. Commonwealth v. Pope, supra at 509-511. A reading of the “lookout” cases discloses that 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. Rather, the Commonwealth must present additional evidence which implicates the defendant in the crime. See Commonwealth v. Conroy, supra (defendant gave false statements to police); Commonwealth v. Drew, 4 Mass. App. Ct. 30, 31 (1976) (defendant had knowledge that robberies were to be committed); Commonwealth v. Gallagher, 4 Mass. App. Ct. 661, 663-664 (1976) (same); Commonwealth v. Amaral, supra at 243-244 (defendant fled from scene after crime committed); Commonwealth v. Pope, supra (defendant gave false name to police). Contrast Commonwealth v. Murphy, 1 Mass. App. Ct. 71, 76-77 (1973) (no evidence offered except that defendant was present at crime scene with principal).

As the basis for its contention that the defendant was part of a joint enterprise, the Commonwealth relies on the evidence showing that the defendant looked up and down King Street on two separate occasions. The Commonwealth claims that the jury could infer from those two physical acts that it was the defendant’s job to act as lookout for Gonzales. The problem, however, with the Commonwealth’s argument is that the evidence presented was “notable for its lack of detail” (Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 565 [1980]). That lack is a serious weakness in a case such as this one, where the Commonwealth attempts to prove the defendant’s guilt by [412]

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Bluebook (online)
487 N.E.2d 549, 21 Mass. App. Ct. 408, 1986 Mass. App. LEXIS 1367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-saez-massappct-1986.