Commonwealth v. Branch

Citations: 42 Mass. App. Ct. 181; 674 N.E.2d 1345; 1997 Mass. App. LEXIS 25Docket: No. 96-P-549

Court: Massachusetts Appeals Court; January 31, 1997; Massachusetts; State Appellate Court

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Kevin Branch was tried in Suffolk Superior Court on multiple indictments, including armed assault with intent to murder, assault and battery with a dangerous weapon, and two firearms-related offenses. After the Commonwealth presented its case, Branch moved for a not guilty finding, which was denied, and he subsequently rested. The jury convicted him on all counts. The Commonwealth's case was based on both direct responsibility and the theory of a joint venture. Branch's appeal argues that the judge erred by not allowing the jury to consider whether he had withdrawn from the joint venture.

Testimony revealed that on August 4, 1994, Lorenzo Jones met Rasheed Fountain, who was later joined by Branch. The three men traveled in Jones's rental car after Fountain indicated he needed to retrieve money from his house. After a brief stop, as they drove, Fountain pulled a gun on Jones and demanded his jewelry. Branch allegedly encouraged Fountain to shoot Jones. After an argument, both Branch and Fountain exited the car, and as Jones attempted to drive away, Fountain fired multiple shots at the vehicle, hitting it and injuring Jones. Following the shooting, Branch and Fountain were seen fleeing the scene with Branch holding a gun. Law enforcement officers intervened shortly after the shots were fired, and Branch was identified at the scene.

Ventullo pursued two men on foot after hearing gunshots. Another individual, Yancey, attempted to intercept them on Lawrence Avenue but found they were not there. He continued to Intervale Avenue, where he was picked up by a security vehicle. Ventullo observed the men fleeing up Greenheys Street and identified one as the defendant, who was shorter, leaner, had an Afro hairstyle, and was dressed in black. Ventullo followed them through a field, backyards, and over fences, during which the defendant discarded his gun. The chase ended in Ceylon Street park, where security officers apprehended the men. Ventullo assisted in frisking one suspect, Fountain, but no weapon was found on him. The Boston police later arrested both men, and a search led to the discovery of a rusted .38 caliber handgun linked to shots fired at Jones’s car.

The judge denied the defendant's motion for a required finding of not guilty, a decision the defendant did not contest. Instead, the defendant claimed the judge erred by not giving a jury instruction on his alleged withdrawal from the crime before its completion. The defense argued that the defendant was moving away from the car when Fountain fired. However, the Commonwealth contended that the crime was complete when the initial assault occurred within the car, with the shots serving as evidence of intent. The court referenced precedents to clarify that for withdrawal to be valid, there must be a significant interval allowing for abandonment before the crime became inevitable, which was not present in this case. The defendant's actions were interpreted as fleeing rather than withdrawing from the enterprise, and he did not communicate any intent to detach from the scheme. Thus, his claim of withdrawal was deemed unfounded.

The judge had no obligation to provide a specific instruction because the evidence did not create a reasonable doubt regarding the defendant's involvement in a joint venture, which would have required the Commonwealth to prove abandonment beyond a reasonable doubt. Relevant case law, including Commonwealth v. Fickett, Commonwealth v. Cook, and Commonwealth v. Joyce, supports this conclusion. The court affirmed the judgments, sentencing the defendant to seven years at Cedar Junction for armed assault with intent to murder, a concurrent one to three years for firearm possession, and five years of probation following release for assault and battery with a dangerous weapon. The conviction for possession of ammunition was placed on file. The excerpt notes that joint venture liability can arise without prior planning or agreement, emphasizing that mutual action at critical moments suffices to establish responsibility for each other's criminal acts, as supported by Commonwealth v. Fidler and other cited cases.