Commonwealth v. Duong

COMMONWEALTH vs HOA SANG DUONG

00-P-199

Massachusetts Court of Appeals

May 18, 2001

October 17, 2001

County: Middlesex.

Present: Greenberg, Gillerman, & Doerfer, JJ.

Joint Enterprise. Evidence, Joint enterprise. Practice, Criminal, Comment by prosecutor, Instructions to jury. Robbery. Receiving Stolen Goods.

Indictments found and returned in the Superior Court Department on November 19, 1998.

The cases were tried before Charles M. Grabau, J.

David Duncan for the defendant.

Sheryl F. Grant, Assistant District Attorney, for the Commonwealth.

GREENBERG, J.

At around 10:00 P.M. on the evening of May 5, 1996, Yushio Uda locked the doors to his Japanese eatery, Roka restaurant, located at 10 Muzzey Street in Lexington. Before closing down for the night he heard what he thought was someone trying to open the front door. At 10:30 P.M. Uda left the premises carrying the money and receipts from the night's business in a blue bag. He proceeded across Muzzey Street to his car, opened the door, and placed the bag on the front passenger seat. He backed out of his space, and then, as he began to drive ahead, three young Asian males jumped in front of his car. Peering through the windshield, he saw one of the men pointing a machine gun at him. The three robbers entered the car and sat in the rear seat. The one brandishing the gun held it to the back of Uda's neck, pushing his head forward, almost touching the windshield. The robber, in English, demanded to know where the money was. Uda pointed to his blue bag in the front passenger's seat. They took the bag and began to search Uda, taking his watch, a necklace, and his wallet, which contained about $1,000 in cash. They demanded that he remove the key from the ignition and threatened to kill him if he failed to give it to them. Uda complied, and the robbers left Uda's car and ran to a white car parked about twenty yards away on Muzzey Street.

As these events were unfolding, Paul Thomas was at his mother's real estate office located at 7 Muzzey Street. Her office was on the second floor of a building which was diagonally across the street from the Roka restaurant, about twenty to thirty feet from Uda's car. At about 10:30 P.M. Thomas saw Uda leave the restaurant and walk toward the lot where he had parked his car. The parking lot was well lit. As Uda was backing out of his parking space, Thomas saw three Asian men run across the street from the restaurant. He noticed that one of the men had a gun pointed at the windshield. Then he observed all three men enter the back seat of Uda's car. He told his mother to call the police as he continued watching. He could see the men point a gun at Uda's head and saw Uda pass some objects to them. After about one and one-half minutes, the men left the car and ran to a white car parked about fifty to seventy-five feet away from Uda's car.¹

Within seconds of receiving the dispatch, Officer George Snell, a Lexington police officer, arrived at the scene. As he approached, he observed four men running to a white Toyota Camry and get into the car, one at each of the car's four doors.² Snell pulled in front of the Toyota, put his lights on and got out of the cruiser. Four men ran from the vehicle. The two on the driver's side ran east on Massachusetts Avenue and the two on the passenger's side ran west on Massachusetts Avenue. Snell observed that the man sitting in the rear driver's side closed the rear driver's side door as he left the vehicle.³ The other three men did not close their doors as they fled the vehicle. Officer Paul Callahan, another Lexington police officer, arrived at the crime scene shortly after Snell. He observed that the rear driver's side door was closed, but all of the other doors were open. Although Snell and Callahan did not put anything in their initial reports about the rear driver's side door being closed, Detective Robert Mercer, the lead investigator that night, recalled Snell and Callahan telling him on the night of the robbery that the rear driver's side door had been closed by one of the fleeing suspects. Mercer also testified that he observed that three of the doors were open but that the rear driver's side door was closed.⁴

After a sweep of the area, police investigators found two Asian men hiding in the bushes about one-fourth of a mile from the robbery scene. Uda and Thomas later positively identified the two men as two of the men involved in the incident. Uda's watch, necklace, and wallet were found on one of the men. A search of the immediate area also yielded a nine-millimeter Uzi machine gun in an alleyway about twenty-five feet from the robbery scene and the blue money bag about twenty-five feet from the Toyota in the direction the robbers ran. The machine gun had a magazine and live rounds, but was later determined to be a nonfunctioning replica.

At around 6:45 A.M. on the morning of May 6, 1996, Callahan was patrolling Massachusetts Avenue in Lexington Center about three or four blocks from where the robbery had taken place. He noticed a young Asian man on the porch of a multi-office building ducking down behind some shrubs. He continued a little further, then turned his car around and approached the young man, the defendant. Callahan told the defendant that he was investigating an incident involving Asian males. He asked the defendant why he was on the porch, and the defendant replied that he was waiting for a friend. Callahan asked why the defendant needed to be on the porch when it was not raining out, and the defendant replied that he had no particular reason. With the defendant's consent, Callahan searched the defendant's backpack and found clothing with department store tags on them. When asked where his friend was, the defendant said he was supposed to meet his friend, who was coming from Charlestown, at 6:30 A.M. to exchange the clothes he had in his bag. The defendant said that his mother had driven him to the Alewife MBTA station in the morning and that he took the bus to get to Lexington to meet his friend. Three bus drivers working the route that would have been taken by the defendant from Alewife on the morning of May 6, 1996, testified at trial that they did not recall having any young Asian male passengers that morning. In addition, during the conversation the defendant produced identification showing that he had an Everett address. As Callahan further questioned the defendant about whether he had taken a bus that morning, the defendant suddenly stopped answering his questions. Callahan then asked where the defendant's friend was and the defendant said he did not understand the question, despite showing no signs of communication problems until that point. The defendant was shivering throughout the entire fifteen to twenty minute conversation. Callahan did not arrest the defendant at that time.

Detective Mercer and Lieutenant Steven Corr investigated the crime scene on the evening of May 5, 1996. During their investigation, they located a fingerprint on the outside of the window behind the driver's side door of the white Toyota Camry, the same door Snell observed one of the suspects close as the suspect fled from the vehicle. Trooper Mary Richie of State police crime scene services analyzed the print and later identified it as matching prints from the defendant's left index finger.

On November 18, 1998, a grand jury indicted the defendant, charging him with armed robbery, conspiracy to commit armed robbery, assault and battery by means of a dangerous weapon, receiving stolen property, and possession of ammunition without a firearm identification card. The defendant was tried by jury on all counts except the conspiracy charge. At the close of the Commonwealth's case, the defendant filed a motion for required findings of not guilty. The motion was denied, and the defendant rested without presenting any evidence. The jury returned a not guilty verdict on the possession of ammunition without a firearm identification card charge and a guilty verdict on all other charges.

On appeal, the defendant argues that (1) the evidence was insufficient to support the verdicts; (2) the prosecutor improperly appealed to racial stereotypes in his closing argument; (3) the trial judge failed to properly instruct the jury that they must find the defendant knew a co-venturer was armed; and (4) his conviction on the count of receiving stolen property is inconsistent with his conviction on the count of armed robbery.

The defendant's strongest argument is that the Commonwealth presented insufficient evidence of his participation in a joint venture, and that his motion for a required finding of not guilty should have been allowed. Criminal liability in a joint enterprise is premised on (1) a defendant's presence at the scene of the crime; (2) with intent to commit the crime charged or with knowledge that another intends to commit the crime charged; and (3) by express or implicit agreement is willing and available to help the other in effecting his criminal purpose. See Commonwealth v. Longo, 402 Mass. 482, 486 (1988); Commonwealth v. O'Neil, 51 Mass. App. Ct. 170, 171-172 (2001). We review the evidence in the light most favorable to the Commonwealth to determine whether it is sufficient as a matter of law to satisfy a reasonable jury of each element of the defendant's participation in the joint venture beyond a reasonable doubt. See Commonwealth v. Martino, 412 Mass. 267, 271-272 (1992); Commonwealth v. Mattos, 49 Mass. App. Ct. 218, 222 (2000). See also Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

1. We begin with the first element of proof for joint venture: the defendant's presence. The defendant states correctly that no eyewitness identified him as present at the crime scene, nor did he possess stolen property when Officer Callahan frisked him shortly after his apprehension. The defendant argues that his fingerprint on the getaway car and his presence in Lexington in the...