COMMONWEALTH v. GRAYS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted by a jury of assault with intent to rob. The defendant was not present in the victim's apartment where the assault occurred, but he was tried on a theory of joint venture because he participated in planning the intended robbery, and he also acted as a lookout during the assault. On appeal the defendant argues, among other things, (1) that there was insufficient evidence to convict the defendant of the assault perpetrated by others, (2) that there were various errors in the judge's jury instructions on the joint venture theory and the elements of the crime, and (3) that during jury voir dire the judge improperly asked questions focused on the jurors' ability to follow the law of joint venture. We affirm.

Background.² On December 18, 2013, the defendant made a plan to rob the victim at the victim's apartment in a multifamily building on Second Street in Lowell. The defendant made this plan together with four other coventurers: Jonathan Rivera, Tarrane Tillis, Donte Okowuga, and Roberto Lopez-Ortiz. The defendant and the coventurers did this planning while they all were together at various locations on December 18. Pursuant to this plan, the defendant first went to another apartment in the victim's building, from which he acted as a lookout. Thereafter the other four coventurers came to the building, ran upstairs to the victim's apartment, broke in, and held the victim at gunpoint. The defendant did not go upstairs to the victim's apartment. Somehow the victim escaped and ran into the hall of the building screaming, after which the coventurers abandoned the attempt at robbery. Three of the four coventurers who had entered the victim's apartment fled. The fourth remained behind, and ultimately shot and killed the victim before fleeing.

Two of the coventurers, Rivera and Okowuga, testified at trial. So too did the defendant's then-girlfriend, who had been present with the defendant during some of the planning discussions, and also present with the defendant at the victim's building in Lowell. Rivera testified that during the planning meetings the defendant initially proposed a robbery in Boston, and that the defendant told the coventurers that they would need guns. Thereafter one of the coventurers went to his car and retrieved a bag of guns, which he brought back to the group while the defendant was present.

Rivera testified that subsequently, the coventurers changed the plan, and instead decided to rob the victim, who was a drug dealer in Lowell. The defendant and his girlfriend went to the victim's building in advance of the others, to scope it out. The girlfriend testified that prior to the assault she and the defendant went to an apartment downstairs from the victim in the victim's building, that the defendant watched the hallway from the doorway of the apartment, and that during this time the defendant was in telephone communication with coventurer Tillis, who was somewhere nearby with the other coventurers. The defendant first warned Tillis and the other coventurers not to come, but then later called to tell them, “[t]he coast is clear.” Once the other four coventurers arrived and went upstairs, the defendant and his girlfriend left the building.

The defendant was convicted of assault with intent to rob. This appeal followed.

Discussion. 1. Sufficiency of the evidence. The defendant first argues that there was insufficient evidence to convict him of assault with intent to rob, because the defendant was not present during the assault and there was insufficient evidence that he intended the assault to occur. This argument need not detain us long. To begin, there is no question that there was sufficient evidence to convict the other four coventurers of assault; they broke into the victim's apartment, drew guns, and attempted to physically confine the victim while they robbed him. See, e.g., Commonwealth v. Henson, 357 Mass. 686, 692-693 (1970) (drawing and pointing revolver loaded with blanks constitutes assault).

The defendant is also criminally responsible for that assault, as a coventurer, if he shared the intent that the assault occur, and knowingly participated in it. Commonwealth v. Zanetti, 454 Mass. 449, 466-467 (2009). Here, the evidence was plainly sufficient for the jury to so find. As to shared intent that an assault occur, the defendant advised the coventurers that they needed guns, and he was present when one of the coventurers thereafter retrieved the bag of guns and brought it into the room. The brandishing of guns during a robbery is an assault, see Commonwealth v. Powell, 433 Mass. 399, 401-402 (2001), and the evidence was sufficient for the jury to infer that the defendant intended the guns to be used for that purpose. And as to knowing participation, the defendant acted as a lookout and advised the coventurers on when the crime should be committed.³ See Commonwealth v. Benitez, 464 Mass. 686, 690 (2013) (evidence that defendant proposed crime to coventurer, gave him gun, and acted as lookout “more than sufficient” to show knowing participation). Under the circumstances, the prosecution did not have to show that the defendant actually discussed using the guns in the Lowell robbery (as opposed to using them in Boston), or that the defendant actually saw the guns in the bag that his fellow coventurer had brought to the group; the jury could readily infer the defendant's knowledge and shared intent from the above facts. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (when reviewing sufficiency of evidence, “[t]he question is whether, after 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” [quotation and citation omitted] ).

2. Jury instructions. The defendant also argues that a new trial is required because the jury instructions were flawed. The defendant advances several criticisms of the instructions; of these, the only criticism that was preserved by objection at trial was that the instruction on joint venture should have been given separately from the instruction on the substantive offense of assault with intent to rob.⁴

As to the objection that was raised at trial, there was no error in the instruction. The Supreme Judicial Court has stated more than once that it is appropriate for judges in joint venture cases to “incorporate the concept of accessory liability within their instructions on substantive offenses.” Commonwealth v. Brown, 477 Mass. 805, 817 (2017), citing Zanetti, 454 Mass. at 468 n.22. Here the trial judge incorporated the joint venture instruction with the instruction on assault with intent to rob; under Zanetti, the fact that the joint venture instruction was incorporated cannot be faulted.

With respect to the defendant's other criticisms of the instructions, we discern no substantial risk of a miscarriage of justice. The jury were instructed separately, and properly, on the concept of joint venture. And as to the instructions on the elements of the substantive offense, even if those instructions could have been clearer there was no objection to the specific instructions given, and no argument about how they might be improved. Reading the instructions as a whole, see Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002), we are satisfied that the jury were adequately instructed on the necessary elements of assault with intent to rob, including the element of specific intent. We are also satisfied that the jury were adequately instructed that to be found guilty as a joint venturer, the defendant had to (1) knowingly participate in that crime, and (2) share the intent that each of the elements of the crime -- including assault and intent to rob -- be committed. We accordingly find no substantial risk of a miscarriage of justice here. See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).⁵

The defendant's additional arguments are also without merit. Under the circumstances it was not error for the judge to ask prospective jurors whether, if seated, they could follow the law of joint venture. During the jury selection process the judge merely restated the law as to how one can be guilty as a joint venturer, and asked prospective jurors whether there was anything about “the nature of [a joint venture] allegation” “that would make it difficult for you to be fair and impartial in deciding this case.” The defendant argues that this questioning somehow diminished the Commonwealth's burden of proof, but the Supreme Judicial Court approved very similar questioning of a jury venire in Brown, 477 Mass. at 821-822, noting that “the judge had discretion to ask the venire a question regarding their ability to follow her legal instructions.” Here, as in Brown, the jury were properly instructed on the Commonwealth's burden to prove each element of the crime, and the elements of joint venture, beyond a reasonable doubt. There was no error.⁶

Judgment affirmed.

FOOTNOTES

2.   The facts are taken from those adduced at trial, considered in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

3.   The defendant argues that he was not notified that the Commonwealth intended to rely on his actions as a lookout -- in addition to his actions as a planner -- to prove knowing participation. This argument was not preserved in the trial court, and is accordingly waived. It is in any event without merit; the defendant cites no authority suggesting that the Commonwealth must specify in advance what precise actions it is relying upon to establish knowing participation.

4.   Defense counsel stated: “I'm going to make an objection to that. I think the joint venture instruction is a separate instruction.”

5.   We have considered the defendant's other objections to the instructions, including his complaints about the preliminary instructions to the jury venire and to the petit jury. They are without merit.

6.   We have carefully considered each of the arguments presented in the defendant's brief. To the extent that any particular claim has not been addressed specifically herein, we have found it to be without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).