Commonwealth v. Santos

672 N.E.2d 562, 41 Mass. App. Ct. 621, 1996 Mass. App. LEXIS 850
CourtMassachusetts Appeals Court
DecidedNovember 15, 1996
DocketNo. 95-P-1117
StatusPublished
Cited by3 cases

This text of 672 N.E.2d 562 (Commonwealth v. Santos) 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. Santos, 672 N.E.2d 562, 41 Mass. App. Ct. 621, 1996 Mass. App. LEXIS 850 (Mass. Ct. App. 1996).

Opinion

Ireland, J.

The defendant was convicted under G. L. c. 265, § 17, for the armed robbery of a bank while masked or disguised and was sentenced to from nine to twelve years in prison.1 Several bank employees had ample opportunity to observe the defendant, although he wore a baseball hat, sunglasses, and a three-inch band-aid upon one cheek during the crime. The defendant contends that those accouterments are insufficient as a matter of law to satisfy the statute’s “masked” element. There is a minimum five-year prison sentence for a first offense of armed robbery “while masked or disguised or while having [one’s] features artificially distorted. . . .” G. L. c. 265, § 17, as amended through St. 1952, c. 406, § l.2 Absent being masked, a defendant may be sentenced under the statute to any term of years in prison, up to and including life.

The defendant urges that his motion for a required finding of not guilty on the masked element of the indictment was wrongfully denied at his trial. We agree and, therefore, remand the matter to the Superior Court for resentencing based upon a conviction for unmasked or simple armed robbery. The remand is necessary because, although the sentence that was imposed falls within the limits of the statute for unmasked or undisguised armed robbery, the judge may well have considered the masked aspect of the verdict when imposing the sentence. Compare Commonwealth v. Eaton, 2 Mass. App. Ct. 113, 119 (1974).

[623]*6231. Motion for required finding of not guilty. The defendant’s motion seeking to have the masked element of the armed robbery charge withdrawn from the jury’s consideration should have been allowed “if the evidence [was] insufficient as a matter of law to sustain a conviction on the charge.” Mass. R.Crim.P. 25(a), 378 Mass. 896 (1979). On appeal from the denial, we determine that the evidence, read in the light most favorable to the Commonwealth, was insufficient for the jury to find the masked element of the offense. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), S.C., 423 Mass. 129 (1996). Commonwealth v. Basch, 386 Mass. 620, 622 (1982).

The terms “masked” and “disguised” in G. L. c. 265, § 17, are given no special or technical definitions and, therefore, carry only their common and everyday meanings, such as those found in any standard dictionary. See Commonwealth v. Flynn, 362 Mass. 455, 478 (1972). See also Darneal v. State, 14 Okla. Crim. 540, 547 (1917). In the Darneal case, the court cited numerous dictionary definitions for one of those terms:

“ ‘[D]isguise’ means . . . [t]o change the guise or appearance of, especially to conceal by an unusual dress; to hide by a counterfeit appearance .... The noun ‘disguise’ means ... [a] dress or exterior put on to conceal or deceive . . . . ” Ibid.

The American Heritage Dictionary of the English Language (3d ed. 1992) defines “disguise” as an effort “[t]o modify the manner or appearance of in order to prevent recognition,” or “[t]o conceal or obscure by . . . false show,” or “[c]lothes or accessories worn to conceal one’s true identity.” Id. at 533. “Mask” is defined as a noun: “[a] covering worn on the face to conceal one’s identity”; or as a verb: “to cover in order to conceal, protect, or disguise . . . [t]o conceal one’s real personality, character, or intentions.” Id. at 1105.

In the final analysis, though, the question “[w]hether. . . a person is disguised within the meaning of the [particular] provision [] of law must depend largely upon the facts of each particular case .... It is impossible ... to give any fixed definition [for the terms masked or disguised] that would apply to all . . . facts and circumstances. . . .” Darneal v. State, 14 Okla. Crim. at 547.

[624]*624We conclude that the defendant was not masked or disguised within the meaning of G. L. c. 265, § 17, and, therefore, that question should not have been put to the jury. The baseball hat and the sunglasses are everyday items of apparel that are commonly worn and which, by themselves, do not suggest or even remotely imply an intention or conscious effort to conceal identity. The robbery occurred in full daylight at about 9 a.m. in the summer, at a time when it would not be unusual for a person to wear a baseball hat and sunglasses. Contrast Commonwealth v. Flynn, 362 Mass, at 459 (defendants wore women’s silk stockings over their faces); Commonwealth v. Cincotta, 379 Mass. 391, 392 & n.2 (1979) (defendant wore a blackening substance on his face and hair, “which accounted] for the indictment under the statute for robbery with features artificially distorted”); Commonwealth v. Amaral, 13 Mass. App. Ct. 238 (1982) (perpetrators wore ski masks).

Further, the band-aid worn by the defendant in this case was not of such size as to disguise or mask the defendant. Contrast Darneal v. State, 14 Okla. Crim. at 547 (defendant had wrapped cloth and rags around a large portion of his face and head). Moreover, no evidence appears in the record that the band-aid masked or concealed any identifying or conspicuous mark or blemish upon the defendant’s cheek. Indeed, the only evidence of any such mark upon the defendant’s face (other than prominent acne or acne scars) was that it was located on the opposite cheek. In short, evidence merely that the defendant wore a band-aid could not have supported a reasonable inference that, in so doing, he intended or attempted to hide a revealing facial feature.

The Supreme Judicial Court had occasion in Commonwealth v. Flynn, 362 Mass, at 478, to examine the “while masked or disguised” language of G. L. c. 265, § 21, and rejected an interpretation that the statute requires that a defendant’s facial features be “so totally cover [ed] or concealed] . . . that the wearer cannot be identified or recognized. The statute applies equally to the inept or bungling masquerader as it does to the skilful one.” Ibid. Similarly, in Darneal v. State, 14 Okla. Crim. at 547, the court held that [625]*625the disguise need not be so perfect as to defeat identification.3 Nevertheless, while not determinative, the fact that several witnesses had little trouble identifying the defendant in spite of the items he wore is of some significance. No evidence appears that the sunglasses worn by the defendant in this case were fitted with unusually large or dark lenses or reflective lenses that would prevent an eyewitness from seeing the defendant’s eyes.

The court in Commonwealth v. Flynn, supra, also pointed approvingly to the trial judge’s charge to the jury: “It is enough if the [face’s] true character is screened or concealed . . . [to] such an extent that recognition of it is materially and substantially obstructed.” Ibid. The evidence in the case before us was insufficient that the baseball hat, sunglasses, or band-aid “materially and substantially obstructed” recognition of the defendant. Other than the defendant’s wearing the items we have described, the Commonwealth produced no evidence from which the jury reasonably could have inferred an attempt on his part to mask, disguise, or artificially distort his features. The defendant’s motion for a required finding of not guilty of being masked while committing the crime should have been allowed.

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Bluebook (online)
672 N.E.2d 562, 41 Mass. App. Ct. 621, 1996 Mass. App. LEXIS 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-santos-massappct-1996.