Commonwealth v. Smith

726 N.E.2d 985, 49 Mass. App. Ct. 127, 2000 Mass. App. LEXIS 278
CourtMassachusetts Appeals Court
DecidedApril 14, 2000
DocketNo. 98-P-1500
StatusPublished
Cited by2 cases

This text of 726 N.E.2d 985 (Commonwealth v. Smith) 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. Smith, 726 N.E.2d 985, 49 Mass. App. Ct. 127, 2000 Mass. App. LEXIS 278 (Mass. Ct. App. 2000).

Opinion

Greenberg, J.

A judge in the Superior Court found the defendant guilty of being an accessory before the fact to two counts of armed robbery. A subsequent motion for a new trial, see Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), was denied by the same trial judge without an evidentiary hearing. The defendant appeals from the judgments and from the order denying his motion for a new trial.

Represented by new counsel in his direct appeal, the defendant argues that the evidence was insufficient to convict him of the two armed robbery charges. We conclude that the [128]*128evidence was sufficient to warrant a rational trier of fact in finding beyond a reasonable doubt that the defendant was an accomplice in the robberies of the sort described in Commonwealth v. Andrews, 34 Mass. App. Ct. 324, 330-331 (1993). See Commonwealth v. Ortiz, 424 Mass. 853, 856 (1997).

In appealing from the denial of his motion for a new trial without an evidentiary hearing, the defendant asserts that the motion should have been granted and that, at minimum, he should have been afforded an evidentiary hearing. Upon reviewing trial counsel’s alleged shortcomings, we are satisfied that counsel’s performance was not in any way “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Commonwealth v. Reid, 400 Mass. 534, 537 (1987). Accordingly, we affirm both the defendant’s convictions and the order denying his motion for a new trial.

1. Facts. The government’s case contained the following evidence.1 On October 7, 1996, five teenagers, including Roger Stevens, Jr., and Frank,2 broke into the home of Alex and Diane McGrory of Housatonic and made off with nearly $20,000. Stevens stayed outside acting as a “look-out” while Frank went inside and took cash from a safe. They split the money and left Housatonic.

Right after the McGrory break-in, the pair went to the Railroad Street apartment of Nicole Austin in Great Barrington to purchase marijuana with some of the money. Frank had $6,000 in cash, and Stevens had $1,200. They met the defendant who shared the apartment with-Austin. According to Stevens’s testimony, the defendant arranged to procure a pound of marijuana from someone named “Malik.” The three of them left tire apartment to use a pay telephone to contact him in Hudson, New York, just over the State fine. The defendant made the call and kept Stevens and Frank out of earshot. Then he announced that Malik, who was actually Cedric Fulton, was en route with the marijuana.

About three quarters of an hour later, the three of them stood outside the Railroad Street apartment where Austin and the defendant shared rooms. Fulton, accompanied by his girlfriend, Jennifer Dallas, drove up in a car. Fulton stopped in front of the [129]*129building. Stevens and Frank were buzzed through the front door of the apartment building by Austin, they went inside and drank some liquor they had purchased. For a brief time, the defendant and Fulton remained outside. Then Fulton went in the back entrance of the building and met Stevens and Frank inside the kitchen. They flashed some cash to let Fulton know that they were serious buyers. Fulton carried a glossy blue gift bag in his hand when he entered the apartment. He placed the bag on the kitchen table, took out a pair of boxer shorts, and then pulled out a small black and brown revolver. Holding the barrel to Stevens’s head, he demanded “all” of their money. Stevens and Frank did not argue. They each handed Fulton their share of the proceeds from the burglary. Fulton left the apartment and joined the defendant, who had remained inside the car with Dallas. They drove back to Hudson, New York, without a word spoken about Fulton’s shakedown of Stevens and Frank. During a later consensual search of the apartment, police found a blue bag and boxer-style underwear on the kitchen floor. No weapon was ever recovered.

At the defendant’s trial, most of these facts as related by Stevens and Frank that gave rise to the charges against the defendant were not in dispute. Instead, trial counsel’s theory, as shown by his cross-examination of the government’s witnesses, was that Fulton acted alone and never disclosed his intention to rob Stevens and Frank to the defendant. Dallas’s testimony, however, undermined the defendant’s position. Dallas testified that Fulton had no gun in his possession en route to Great Barrington. She added that, when Fulton stepped out of the car on Railroad Street, he did not carry any bag or objects. She also stated that, during the two months of their relationship, she had never seen Fulton in possession of a weapon. A police officer’s testimony at trial concerning the discovery of the blue bag and boxer shorts inside the apartment suggests that those items were left behind by Fulton because they belonged to the defendant and not to him. Additionally, there was testimony that both Stevens and Frank, on separate occasions, had seen the defendant in possession of a gun similar to the one used by Fulton, in the kitchen of the apartment. As such, the identification of the gun as belonging to the defendant was supported by strong circumstantial evidence. That the defendant spent time alone with Fulton just before and after the robbery supports the inference that the defendant participated in the criminal [130]*130enterprise. We first consider the issue raised by the defendant on his direct appeal.

2. Sufficiency of the evidence. The defendant maintains that the trial judge erred in denying his motion for required findings of not guilty on the basis of insufficiency of the evidence. We need not dwell at length on this argument. The government’s evidence, viewed in the light most favorable to it, was sufficient for a rational fact finder to determine that the defendant was an accessory before the fact to the armed robberies of Stevens and Frank. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). There is no question that the defendant was present both before and after the robberies, as we have outlined above. The government also presented sufficient evidence from which the finder of fact could infer that the defendant actually supplied Fulton with the gun used in connection with the crimes. The judge did not err in denying the motion.

3. Ineffective assistance of counsel. The defendant alleges that his trial counsel provided him with ineffective assistance by failing to call Fulton as a defense witness. The defendant also claims that the trial judge erred in denying the motion for a new trial on this basis without conducting an evidentiary hearing. We will consider these issues together.

In support of his motion for a new trial, the defendant submitted four affidavits, including one from Cedric Fulton. In Fulton’s affidavit he avers that, just before the trial began, the defendant’s trial counsel spoke to Fulton in the defendant’s presence inside the holding cell at the Pittsfield Superior Court. Fulton told trial counsel that he alone decided to rob Frank and Stevens. He hatched the plan as reprisal for their failure to pay for marijuana previously “sold” to them. He also told trial counsel that the gun, a .38-caliber chrome pistol which he used to commit the robberies, was one that he had borrowed. Last, he indicated that the defendant was kept in the dark about his plan because of his friendship with Stevens and Frank.

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Related

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759 N.E.2d 1203 (Massachusetts Appeals Court, 2001)
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152 F. Supp. 2d 67 (D. Massachusetts, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
726 N.E.2d 985, 49 Mass. App. Ct. 127, 2000 Mass. App. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-smith-massappct-2000.