1. XXXXXXX, ss: SUPERIOR COURT DEPARTMENT
NO: 13-XXXXX-001
COMMONWEALTH
v.
JUNAID M
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
The Supreme Judicial Court set forth the standard for reviewing the validity of a grand
jury indictment in Commonwealth v. McCarthy, 385 Mass. 160, 163 (l982). The Court held that
the grand jury’s failure to hear any evidence of criminal activity by a defendant justified
dismissal of the indictment, and that “at the very least” the grand jury must hear evidence
establishing the identity of the accused, and probable cause to arrest him. Id. Although this
standard of sufficient evidence for an indictment is considerably less than that required for a
guilty finding, Commonwealth v. O’Dell, 392 Mass. 445 (l984), the Court must nonetheless
determine whether the indictments are supported by “reasonably trustworthy information . . .
sufficient to warrant a prudent man in believing that the defendant had committed or was
committing an offense.” Id. at 450. The grand jury must be presented with evidence of each
element of the crime. Commonwealth v. Moran, 453 Mass. 880, 884 (2009).
FACTS
The grand jury heard evidence on June 21, 2013. Officer Steven Pierce testified that at
approximately 2:39 p.m. on March 26, 2013, police were dispatched to the Harbor One Bank on
68 Legion Parkway in Brockton, Massachusetts. A robbery was reported, a description of the
offender was given, and it was reported that the offender ran out of the back door of the bank.
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2. Officer Pierce and officer Minnock arrived on the scene and interviewed the teller that the
individual got the money from. (GJ, p.3-4).
Officer Pierce further testified that when he spoke to the teller, she said that the male
offender “approached her” and “asked for all the money in the first two rows of her drawer”.
(GJ, p.4). He asked for no “bait money”, and she subsequently gave him the money. Id. The
teller told an officer that she was afraid the offender had a weapon. (GJ, p. 5) However, officer
Pierce then testified that when another officer spoke to the teller, the teller said that as the
offender approached her and was conversing with her, “he had his hand under his shirt and was
making motions…” Id. Also, he did not mention anything about a weapon to her. Id.
ARGUMENT
I. THERE WAS INSUFFICIENT EVIDENCE BEFORE THE GRAND JURY TO
INDICT JUNAID M WITH ARMED ROBBERY BECAUSE HAVING HIS HAND
UNDER HIS SHIRT AND MAKING “MOTIONS” DOES NOT GIVE RISE TO
THE INFERENCE THAT HE WAS ARMED
A. ARMED WITH A DANGEROUS WEAPON
The grand jury did not hear sufficient evidence that the offender was armed because there
was no direct evidence of a weapon and the offender did not clearly communicate to the victim
that he was armed, given that he merely had his hand under his shirt and was making “motions”
with his hand.
The grand jury must hear “reasonably trustworthy information . . . sufficient to warrant a
prudent man in believing that the defendant had committed or was committing an offense.”
O’Dell, 392 Mass. at 450. The grand jury must also hear sufficient evidence on all the elements
of the crime. Moran, 453 Mass. at 884.
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3. “Whoever, being armed with a dangerous weapon, assaults another and robs…” is guilty
of armed robbery. G. L. c. 265 § 17 (2008). Generally, in order to find that the offender was
armed with a dangerous weapon, direct evidence of a dangerous weapon or an object that
appears reasonably capable of inflicting harm, which the offender uses to intimidate or
incapacitate the victim, is required. See Commonwealth v. Johnson, 27 Mass. App. Ct. 746, 748
(1989). See also Commonwealth v. Smith, 60 Mass. App. Ct. 204 (2003) (holding that the
inference of a dangerous weapon is appropriate when the victim saw the defendant concealing
something in his sweatshirt and then felt a blow from a rigid object which knocked him to the
ground and left a mark on his forehead).
However, threatening words used in conjunction with conduct by the offender can give
rise to the inference that the offender has a dangerous weapon. Commonwealth v. Jackson, 419
Mass. 716, 724 (1994). See also Commonwealth v. Simpson, 54 Mass. App. Ct. 477 (2002)
(holding that an inference can be made that the defendant was armed when she held her hand out
of sight of the store clerk and stated that she had a gun).
Also, threatening words and observation of an object or bulge under the clothes of the
offender that appears to be a dangerous object can give rise to the inference that the offender has
a dangerous weapon. Commonwealth v. Colon, 52 Mass. App. Ct. 725, 728 (2001) (holding that
when an offender puts his hand in his pocket and the victim sees a shiny object in the pocket, the
offender was armed). See also Commonwealth v. Powell, 433 Mass. 399 (2001) (holding that the
inference of a dangerous weapon is valid when the defendant says he has a gun and the victim
sees an object hidden under the defendant’s jacket). Observation of such an object must
reasonably place the victim in fear that the object is dangerous, and the offender must have
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4. intended to provoke the fear in order to facilitate the robbery. Commonwealth v. Tarrant, 367
Mass. 411, 417 (1975).
In Commonwealth v. Delgado, 367 Mass. 432 (1975), the defendant was in the process of
robbing a store with several other men, when he said: “Hold him or I’m going to shoot him.” Id.
at 434. He made this statement while his confederate was holding a knife to the store manager’s
throat. Id. There was no direct evidence that the defendant had a gun. Id. at 436. The store
manager did not see a gun and no gun was found when the defendant was apprehended. Id. The
court held that the jury could have inferred that the defendant was armed for the purpose of G. L.
c. 265 § 17. Id. at 437. The court reasoned that two types of words are included in the statement
“Hold him or I’m going to shoot him.” Id. at 436. The two types are informational and
threatening words. Id. While they are threatening in nature, they also clearly inform the victim
that the defendant has a gun and will use it if necessary, impliedly informing the victim that the
defendant in fact has a gun. Id. These words clearly communicate to the victim that the defendant
had a gun, and the victim’s reliance on the defendant’s words were reasonable. Id. at 437.
In Commonwealth v. Howard, 386 Mass. 607 (1982), the defendant approached the
victim and said “…don’t try anything foolish or I’ll pull the trigger.” Id. at 607. The defendant
was then arrested at the scene of the crime. Id. at 609. The victim never saw a gun and the police
did not find a gun on the defendant or in the vicinity of the crime. Id. The court held that the
defendant was not armed for the purpose of G. L. c. 265 § 17. Id. at 608. The court reasoned that
there was no evidence for the jury to infer that the defendant was armed, because no gun was
found on the defendant or in the vicinity of the offense. Id. at 609. The court distinguished
Delgado because, in that case, the defendant was not arrested at the scene, and had an
opportunity to dispose of the gun, so that an inference that the defendant had a gun when
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5. perpetrating the crime was reasonable. Id. The court stressed that armed robbery is not robbery
while apparently armed. Id. at 610-611. There must be an object which presents “an objective
threat of danger to a person of reasonable and average sensibility.” Id. at 611, quoting Tarrant,
367 Mass. at 416.
The court in Howard also noted the rationale for making armed robbery an aggravated
form of robbery. Id. The rationale is that when a dangerous weapon is used, the risk of harm that
accompanies the use of a deadly weapon increases. Id. This harm is twofold. First, and
obviously, the offender is more likely to harm someone when he has a dangerous weapon.
Second, the victim and people near the crime are more likely to use deadly force to counteract
the crime, thereby increasing the risk of harm to everyone involved. This second risk extends to
the victim, others near the crime, and even the offender himself.
In Jackson, 419 Mass. 716, the defendant and two other men were robbing an apartment.
Id. at 723. When one of the victims got up from where the defendant told him to sit, the
defendant put his hand in his pocket, motioned it toward the victim, and said “I’ll blow you
away.” Id. The court held that the jury could infer that the defendant was armed with a dangerous
weapon for the purposes of G. L. c. 265 § 17. Id. at 724-725. The court reasoned that an
individual is considered armed with a dangerous weapon, when the individual clearly
communicates to the victim that they are armed with a dangerous weapon with his words and
conduct, and that conduct places the victim “in reasonable apprehension that force may be used.”
Id. at 724.
There was no evidence before the grand jury that would allow an inference that the
offender was armed because there was no direct evidence of a weapon and the offender did not
clearly communicate to the victim that he was armed when he had his hand under his shirt and
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6. was making “motions”. In this case, unlike Johnson, 27 Mass. App. Ct. 746, there is no direct
evidence that the offender was armed. The victim did not see either a weapon or an object or
bulge under the offender’s shirt. In the absence of direct evidence of a dangerous weapon, the
court looks to the words and conduct of the offender. See Delgado, 367 Mass. 432. The court
looks to see if the offender clearly communicated to the victim or others that he is armed. For the
court, a verbal communication to the victim is just a culpable as actually being armed, because
the victim must accept the offender’s word that he is armed under the circumstances of a
robbery. Id. at 437. The clearer the communication is, the more likely the victim is to receive the
communication successfully, and believe that the offender actually is armed.
The rationale for making armed robbery an aggravated form of robbery is furthered by
requiring the offender to clearly communicate to the victim or others that he is armed because the
clearer the communication is, the more likely the second risk of harm is to occur because the
victim is more likely to receive the communication and believe that the offender is armed. The
second risk of harm involved with an armed robbery is that the victim or others near the crime
will use deadly force to combat the robbery. The only way these individuals know that the
offender is armed is if they have direct evidence of a weapon, or the offender clearly
communicates to them that he has a weapon. Therefore, a clear communication by the offender
that he is armed is required in the absence of direct evidence of a deadly weapon.
In this case, unlike Delgado and Jackson, where the defendants clearly communicated
verbally that they were armed to the victims, there were no words spoken by the offender that
communicated to the victim that he had a dangerous weapon. The only evidence of a potential
communication introduced to the grand jury was that the defendant had his hand under his shirt
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7. and was making “motions” with his hand. Merely having your hand under your shirt cannot
clearly communicate that you are armed.
The grand jury could not infer that the offender was armed from testimony that the
offender was making “motions” with his hand while it was under his shirt, because this is an
ambiguous description of what the offender was doing. A clearer communication is required to
find that the defendant was armed. For example, if the testimony was that the offender was
pointing his hand to make it look like a gun and motioning toward the victim, like Jackson, then
the inference, arguably, could be made. But that is not the evidence here. The grand jury only
heard that the offender was making “motions” with his hand under his shirt. This did not clearly
communicate to the victim that the offender was armed.
The victim did say that she was afraid that the offender had a gun. However, this should
not be given much weight because the fear that someone is armed permeates all robberies. If the
fear of the victim is to be given much weight, all robberies could be turned into armed robberies
simply due to the fact that the victim was afraid the offender was armed. There must be objective
facts that clearly communicate to the victim that the offender is armed. The fear is relevant only
when it is reasonable, and it is not reasonable in this case because there is not enough objective
facts to indicate that the offender clearly communicated that he was armed to the victim.
The court typically requires words to the effect that the offender is armed and conduct
that is consistent with the statement. This clearly communicates to the victim that he is armed.
Having your hand under your shirt and making “motions” is an ambiguous act that does not
clearly communicate much to the victim at all. Furthermore, the offender did not verbally
communicate to the victim in this case that he was armed in this case, which distinguishes it from
Delgado. Therefore, the offender was not armed for the purposes of G. L. c. 265 § 17.
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8. In conclusion, the grand jury did not hear sufficient evidence to conclude that the
offender was armed because there was no direct evidence of a weapon and the offender did not
clearly communicate to the victim that he was armed, given that the offender merely had his
hand under his shirt and was making “motions” with his hand. Therefore, the indictment under
G. L. c. 265 § 17 should be dismissed.
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