Commonwealth v. McKay

Brown, J.

(dissenting). The defendant maintains that the Commonwealth did not prove beyond a reasonable doubt that he was engaged in a joint venture with Kevin Disley. In that context, the only question that requires serious attention is whether the defendant “acted with knowledge of the . . . robbery and an intent to assist in committing the crime.” Commonwealth v. Giang, 402 Mass. 604, 608 (1988). See Commonwealth v. Amaral, 13 Mass. App. Ct. 238, 241-242 (1982).

*610Although the evidence is not overwhelming, I think the jury could infer, beyond a reasonable doubt, that the defendant had advance knowledge of what Disley was going to do,1 and that he stood by ready to assist Disley if necessary by remaining in a tree line above the rear of the residence as a lookout, infer-ably listening for sounds2 while Disley twice entered the house, on one occasion returning with a “bulging” bag, and subsequently departing with Disley. Compare Commonwealth v. Fuentes, 45 Mass. App. Ct. 934, 935-936 (1998). Contrast Commonwealth v. Lombard, 419 Mass. 585, 590 (1995). “[I]f one is, by agreement, in a position to render aid, he is an abettor even if he does not participate in the actual perpetration of the crime . . . .” Commonwealth v. Costa, 407 Mass. 216, 224-225 (1990). See Commonwealth v. Conroy, 333 Mass. 751, 755 (1956); Commonwealth v. Lafayette, 40 Mass. App. Ct. 534, 537 (1996). See also Commonwealth v. Caramanica, 49 Mass. App. Ct. 376, 381 (2000), and cases cited therein. The evidence, and reasonable inferences drawn therefrom, as to participation as a joint venturer, need not be compelling, only permissible. Commonwealth v. Murphy, 31 Mass. App. Ct. 901, 903 (1991). Here, “the jury could believe a part and disbelieve a part of the defendant’s statements without distorting or mutilating any integral portion of the statements.” Commonwealth v. McInerney, 373 Mass. 136, 144 (1977). With this in mind, I conclude that there was sufficient evidence that the defendant actively participated as a lookout to take the case to the jury. See Commonwealth v. Mendes, 46 Mass. App. Ct. 581, 588-589 (1999). See also Commonwealth v. Pringle, 22 Mass. App. Ct. 746, 750 (1986); Commonwealth v. Fuentes, 45 Mass. App. Ct. at 935-936.

Indeed, upon a careful reading, I would characterize the defendant’s recorded statements to the police as redolent of his knowledge of the mischief afoot, recognizing, however, that presence and knowledge, without more, are not enough to establish joint venture liability.

I am hard pressed to fathom any innocent basis for Disley’s inquiry (between entries into the house) to the defendant whether “he heard a dog [or dogs] barking.”