COMMONWEALTH v. RIOS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendants, William Rios and Julio Mota, were tried jointly in the Superior Court for an armed robbery of a Western Union store in Chelsea.³ Following a five-day trial, a jury convicted Rios of armed robbery, G. L. c. 265, § 17; and Mota of two counts of armed robbery while masked, G. L. c. 265, § 17; one count of witness intimidation, G. L. c. 268, § 13B; and one count of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. Concluding that the verdicts were supported by sufficient evidence and discerning no reversible error in the arguments of counsel or the sentencing, we affirm.

1. Background. a. The armed robbery. Just before 5:00 p.m. on April 25, 2016, Chelsea Police Officer Robert Leon was conducting field training while looking for a man wanted under an outstanding warrant. Officer Leon noticed three men sitting together on a retaining wall, close to the Western Union office. Officer Leon's attention was drawn to these men on the wall, later identified as Nogueira, Mota, and Rios, because they were all wearing clothes similar to the reported attire of the individual sought under the warrant, and he believed that this would be a good opportunity for training his partner in making field observations of clothing. Minutes later, at about 5:10 p.m., Nogueira and Mota entered the Western Union store, while Rios stood by outside.

Mota and Nogueira, wearing dark hooded sweatshirts (with the hoods up) and dark glasses, approached the store's clerk. Nogueira donned a mask shortly after entering the store. The clerk (the only employee present) worked within a closed-off area, behind a glass partition and a locked door, inaccessible to customers. When she inquired what they wanted, Nogueira pulled out a gun, pointed it at the clerk, and ordered her to open the locked door to her work area.⁴ Mota, armed with a gun, stood by the locked door, waiting to gain entry. Soon thereafter, a customer entered the store.⁵ Mota and Nogueira grabbed hold of the customer. One of the men struck the customer in the head and threatened to kill him if the clerk did not open the door. At this point, the clerk opened the door to her work space.

The armed robbers pushed the customer inside the clerk's space, separated him from the clerk, and ordered the customer to kneel on the floor with his hands on his head. Nogueira repeatedly struck the clerk with his gun and hand, while Mota stood by pointing a gun at her. Nogueira placed a black Husky tool bag on an office chair, and ordered the clerk to put all the money from the store's cash register in the bag. She complied. Both men ordered her to show them the safe. She informed them that the store did not have a safe and instead emptied out the cash that was stored in a small box and put it inside the Husky bag.

Once the clerk turned over the cash from the store, both armed robbers demanded that she hand them the store's telephone. The clerk testified that “they kept insisting the phone, the phone, because we don't want you to call the police.” She retrieved a portable phone from a desk and said, “[T]ake this.” She put the store telephone inside the bag. The customer gave up his cellular telephone to the men.⁶ Mota used his gun to strike the customer on the head. Minutes later, Chelsea police arrived at the store.

b. Flight and arrest. Rios, Mota, and Nogueira fled together from the store. As it happened, they ran directly toward a Chelsea police officer, who was working a detail less than a city block from the Western Union store. After being informed of a disturbance near the Western Union store, the detail officer saw three men running. He noticed that two men wore black sweatshirts and radioed for backup.

To follow the route taken by the three men, the detail officer walked into a parking lot near where he was working his detail assignment. He observed the same three men trying to scale the lot's rear fencing. “Two came over and one was hung up on the top.” The two who made it over the fence, Rios and Mota, then ran toward the detail officer and ultimately tried to hide in a carport. The third man, Nogueira, who failed to scale the fence, fell back and ran off toward a nearby cross street.

The detail officer approached Rios and Mota. He observed the Husky tool bag on the ground close to the men, who were crouched down. As the officer closed in on them, Rios grabbed the bag, and the officer saw that it held cash. The officer managed to grab hold of Rios's sweatshirt but Rios broke free and ran away, as did Mota. The two men scaled the fence behind the carport, and another officer apprehended Rios, who had fallen.

Prompted by the detail officer's alerts, Officer Leon and his partner quickly returned to the scene and observed a man (Rios) in the grasp of another officer. In this same area, Officer Leon noticed a black bag on the ground, close to where Rios was handcuffed.

Officer Leon also observed a second man (Mota) running through a side yard of a home; this second suspect matched the description that the detail officer had just reported. Officer Leon gave chase. Within minutes, police found Mota hiding on a third-floor porch of a multi-family home and arrested him.⁷ Nogueira was arrested a short time later in the same general area.

The store's surveillance cameras, positioned in different locations, recorded the armed robbery from the moment Nogueira and Mota entered the premises until they ran from the store with the stolen cash and phones.⁸ Police recovered the Husky bag, which contained approximately $5,000 in cash, the store telephone, the customer's cellular phone, and a “property bag” bearing the label “Michael Nogueira.”

2. Rios's appeal. a. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, “we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

Here, “[t]o find the defendant [Rios] guilty of ․ armed robbery [on a joint venture theory], proof was required that at least one of the alleged coventurers was armed with a dangerous weapon; either applied actual force or violence to [the clerk's] body, or by words or gestures put [her] in fear; took money or property; and did so with the intent (or sharing the intent) to steal it.” Commonwealth v. Williams, 475 Mass. 705, 710 (2016). Rios asserts that the Commonwealth's evidence failed to prove that he knowingly participated in this criminal joint venture to commit armed robbery. We disagree.⁹

When viewed in a light most favorable to the Commonwealth, the evidence and reasonable inferences established, at minimum, that (1) Rios was sitting with his coventurers, Mota and Nogueira, on a retaining wall, in close proximity to the Western Union store, minutes before the robbery commenced; (2) an eyewitness observed two men inside the Western Union store and a third man, Rios, who was “with” them but standing outside the store, acting as a lookout; (3) immediately after the robbery, all three coventurers, including Rios, ran from the store; (4) Rios held the Husky tool bag containing the stolen loot and continued to hold the bag until he was ultimately apprehended and arrested by police; (5) all three men stayed together during their attempt to flee from the store and the police until they reached the parking lot where only Mota and Rios managed to scale the eight-foot fence; and (6) Mota and Rios hid together in the lot's carport area, keeping the Husky bag close at hand. This evidence permitted a reasonable jury to find that Rios knowingly participated, with his accomplices, Mota and Nogueira, in the armed robbery.

The Commonwealth was required to prove, beyond a reasonable doubt, that Rios knew that at least one of his coventurers was armed. See Commonwealth v. Buth, 480 Mass. 113, 116 (2018); Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 489 (2013). Such knowledge may be inferred from circumstantial evidence, including proof of the defendant's own actions. Commonwealth v. Claudio, 418 Mass. 103, 118 (1994).

“Knowledge that a fellow joint venturer is armed may be inferred when, from the circumstances of the crime, a victim's resistance is reasonably to be anticipated such that the participants in the crime would have recognized the need for some means by which to overcome that resistance.” Commonwealth v. Netto, 438 Mass. 686, 702-703 (2003). This principle is apt here, as a participant in this robbery would expect one of his coventurers to be armed to overcome anticipated resistance from a store employee or customer, particularly as the robbery occurred on a weekday (Monday), at 5:10 p.m., on a busy city street and involved forced entry into an otherwise inaccessible interior store space where the clerk handled cash transactions.¹⁰

Furthermore, we conclude that there was sufficient evidence that Rios shared the intent of his coventurers to commit the armed robbery. “[A]n anticipatory compact is not necessary for joint venture liability, as long as ‘at the climactic moments the parties consciously acted together in carrying out the criminal endeavor.’ ” Commonwealth v. Allison, 434 Mass. 670, 676 (2001), quoting Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 513 (1987). See Commonwealth v. McCray, 93 Mass. App. Ct. 835, 843 (2018).

This was not a case of “mere association” between Rios and his two coventurers. The circumstantial evidence suggests strongly that all three shared a common purpose and intent, particularly where there was ample evidence from which the jury could reasonably find that Rios was sitting together with Mota and Nogueira moments before the robbery, standing outside the store during the commission of the robbery, then holding the Husky bag with the spoils moments after the robbery. The coventurers' tacit plan and shared intent can be inferred from their course of conduct. The jury could reasonably find more here than mere suspicion or acquiescence on the part of Rios; they could find informed cooperation. See Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012); Commonwealth v. Melanson, 53 Mass. App. Ct. 576, 580-581 (2002).

An accused may be convicted as a coventurer so long “as the jury [find] [that the defendant] had actually associated [himself or herself] with the criminal venture and assisted in making it a success.” Commonwealth v. Brown, 477 Mass. 805, 813 (2017), quoting Commonwealth v. Silanskas, 433 Mass. 678, 690 n.13 (2001). The jury reasonably found that Rios knowingly participated in the armed robbery of the store, with the requisite shared intent to bring about its success.

b. Closing remarks. In her closing argument, the prosecutor stated, “They ran together. They hid together. They planned together, and they executed together. And here, ladies and gentlemen, they are together before you. I would ask you, find them guilty. Find them guilty of what happened, what they did on April 25th of 2016.” Rios objected on the basis that Rios's presence with Mota at the defense table was not something that the jury ought to consider at all. The judge, without ruling on the objection,¹¹ asked Rios's counsel how the court ought to address the objected-to remark by the prosecutor. Counsel replied that “the fact that [Rios and Mota are] sitting here together, [the jury] should not assume anything because [they're] sitting here together.” The judge implicitly concurred, adding the observation, with reference to his final charge, that “I think I do tell the jurors [in the final jury charge] that they're to treat each defendant separately and their analysis should be independent as to each defendant.” Rios made no further objection nor did he ask for any additional curative instruction responsive to the prosecutor's closing remarks.

Rios's failure to renew an objection (if any) after the judge gave a curative instruction renders the issue waived. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005); Commonwealth v. Burns, 49 Mass. App. Ct. 677, 683 & n.9 (2000). Accordingly, we review whether the prosecutor's remarks caused a substantial risk of a miscarriage of justice.

No such risk occurred here. The prosecutor's erroneous remarks were brief, a fleeting reference amidst a lengthy closing argument. The judge's instructions addressed the issue,¹² mitigating any possible prejudice. See Commonwealth v. Andrade, 468 Mass. 543, 552 (2014). Finally, the jury acquitted Rios of armed robbery of the customer and of the greater offense of masked armed robbery of the clerk. As the videotape suggested that Nogueira donned his mask after entering the store and that the customer's entry was a fortuity, the verdict showed that the jury carefully considered what was within the scope of the coventurers' original plans. Accordingly, this partial acquittal “suggests that [the jury] were not in fact swayed by the prosecutor's excesses.” Commonwealth v. Lassiter, 80 Mass. App. Ct. 125, 132 (2011).¹³

c. Sentence. We review a sentence to determine only if it is illegal or unconstitutional. Commonwealth v. White, 48 Mass. App. Ct. 658, 664-665 (2000), S.C., 436 Mass. 340 (2002). A trial judge has “considerable latitude to fashion an appropriate ․ sentence,” and, in doing so, may take into consideration, among other factors, “a defendant's character, behavior, background, and amenability to rehabilitation.” Commonwealth v. Mills, 436 Mass. 387, 399-400 (2002). There was nothing illogical in the judge's reliance upon the defendant's lengthy criminal record and the fact that he ended up with the proceeds of the robbery to determine that the defendant's role in planning the robbery was likely substantial. At no point did the judge state that he was punishing Rios for other crimes or to compensate for earlier lenient sentences, and Rios's attempt to tease a secret intention to do so from the record is unpersuasive. In the absence of persuasive evidence of the consideration of improper factors, we will not disturb Rios's sentence, which is within the maximum statutory sentence and within the sentencing guidelines. See G. L. c. 265, § 17.

3. Mota's appeal. a. Sufficiency of the evidence of witness intimidation. To convict of witness intimidation, the Commonwealth was required to prove “that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceedings; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding.” Commonwealth v. Fragata, 480 Mass. 121, 122 (2018).

The clerk testified, “[T]hey kept insisting the phone, the phone, because we don't want you to call the police.” Although Mota argues that “they” referred only to Nogueira, we must take the evidence in the light most favorable to the Commonwealth and accept that the jury, viewing the witness's testimony in person, could have concluded that “they” in this context referred to both Mota and Nogueira. See Oberle, 476 Mass. at 547.¹⁴ Viewing the evidence in this light, the jury could reasonably find that Mota, by demanding the clerk give up the store telephone, by means of threats of violence against her, and by stating plainly his reason for doing so (“because we don't want you to call the police”), had willfully intended to frustrate the clerk's ability to report the robbery to police. Accordingly, the judge properly denied the motion for a required finding of not guilty.

b. Sufficiency of the evidence of identity. “[T]he evidence of a defendant's guilt may be ․ entirely circumstantial ․ Any weaknesses in ․ identification [evidence] were for the jury to weigh, and did not constitute grounds for a required finding of not guilty.” Commonwealth v. Lao, 443 Mass. 770, 779-780 (2005). As was the case in Commonwealth v. Raedy, 68 Mass. App. Ct. 440 (2007), Mota relies on the fact that no eyewitness to the robbery testified to seeing Mota's face as he committed the charged crimes. No direct, contemporaneous evidence, however, was required. See id. at 444.

Here, the circumstantial evidence of Mota's identity was substantial. Police observed Mota on the wall, close to the Western Union store, minutes before the armed robbery began. Police then observed Mota's running from the store with Rios and Nogueira. Furthermore, Mota was apprehended wearing dark clothing and a hooded sweatshirt as had been described by the two victims and as the jurors themselves observed in the store's surveillance video. From this circumstantial evidence, the jury could reasonably find that Mota was one of the men in the store. See Commonwealth v. Jones, 477 Mass. 307, 316-317 (2017); Commonwealth v. Brennan, 74 Mass. App. Ct. 44, 47-48 (2009). Accordingly, the judge properly denied Mota's motion for a required finding of not guilty.

c. Co-counsel's remarks. In his opening statement, Rios's counsel stated that his client had not been accused of putting on a mask, or holding a gun, or doing “anything, any of the brutal acts that [the jury would see] in the [store] video.” During his closing argument, Rios's counsel returned to this theme, commenting that this was a “brutal crime committed by two other people whose relationship to Mr. Rios, who knows what it was. There has been no testimony, no evidence.” At no time did Rios's counsel refer directly to Mota, by name or otherwise. In context, defense counsel's remarks were candid (and, frankly, inarguable) observations as to the tape-recorded brutality of the two armed robbers inside the store, a fact that Rios's counsel had referenced more than once in an effort to cast blame away from his own client, who did not enter the store during these moments. We can discern no substantial risk of a miscarriage of justice. See Commonwealth v. Vallejo, 455 Mass. 72, 81-82 (2009).

Judgments affirmed.

FOOTNOTES

3.   A third man, Michael Nogueira, pleaded guilty prior to trial.

4.   Nogueira's statements during the armed robbery were admissible, having been made during and in furtherance of the joint venture. See Commonwealth v. Wardsworth, 482 Mass. 454, 459-460 (2019).

5.   When the customer approached the store, he observed a third man, with the other two, who remained outside the store.

6.   Later that evening, after officers had arrested the defendants (and Nogueira), the customer identified a cellular phone found by police inside the Husky bag as his.

7.   Police officers noticed that Mota was sweating “profusely.” When asked by police why this was so, Mota replied that he had been “jogging.” Mota was wearing a black hooded sweatshirt and black pants and work-type boots.

8.   The cameras did not capture an image of Rios.

9.   “Knowing participation in a criminal offense ‘may take any of several forms’ and includes providing ‘aid or assistance in committing the crime.’ ” Commonwealth v. Brown, 477 Mass. 805, 812-813 (2017), quoting Commonwealth v. Zanetti, 454 Mass. 449, 470 (2009). “A defendant may be convicted as a coventurer when he or she is not present at the scene of a crime ‘so long as the jury [find] [that the defendant] had actually associated [himself or herself] with the criminal venture and assisted in making it a success.’ ” Brown, supra at 813, quoting Commonwealth v. Silanskas, 433 Mass. 678, 690 n.13 (2001).

10.   Nothing turns on the fact that the “guns” that Mota and Nogueira used were in fact replica guns, which fired pellets. The victims believed that these items were actual guns, and the police did as well until a close inspection was undertaken. “[A] replica or fake weapon is a dangerous weapon if the victim would, in all the surrounding circumstances, reasonably believe that the object was a real weapon.” Commonwealth v. Powell, 433 Mass. 399, 402 (2001).

11.   Rios asserts that the judge overruled his objection, but no such ruling appears in the record.

12.   In a final charge to the jury, the judge instructed, “Now the Commonwealth has charged both defendants with two counts of the crime of masked armed robbery, and in addition has charged the defendant Mota with the crimes of assault and battery by means of a dangerous weapon and intimidation of a witness. In your deliberations you should treat each defendant separately, determining whether the Commonwealth has proved its case against each individual defendant on any or all of the charges.” Immediately following this particular instruction, the judge cautioned the jury: “And you should determine the facts based solely on a fair consideration of the evidence.”

13.   Even if we were to treat Rios's claim as preserved, we would conclude that the error did not materially affect the jury's verdict.

14.   For reasons that are not evident, the jury were not instructed on joint venture for this crime.