The accused man along with a co-accused was convicted of robbery in the first degree. He and his co-accused had been charged with aiding and abetting the actual perpetrator; and the sole evidence linking the accused to the robbery was his own admissions. The evidence was insufficient to establish the accused man’s guilt of robbery as a principal.
The accused man’s admissions established only that he had given a gun to his co-accused who, in the accused man’s presence, then turned it over to their actual perpetrator man, whom they knew was going to use it in a robbery; and that after the robbery, and an ensuing homicide in which a police officer was killed, the accused cut his actual perpetrator’s hair in an effort to help him evade capture. It is indisputable that the accused was never present during the actual commission of the robbery and it is not claimed that he ever shared in the robbery proceeds.
Clearly, the accused did intentionally render assistance to the actual perpetrator. However, to be criminally liable for the robbery itself, he must also be shown to have shared the same specific intent or mental culpability as the actual perpetrator, and this was not done. The transfer of the weapon to the actual perpetrator, without more, is at best equivocal; and the subsequent cutting of the actual perpetrator’s hair is of little or no probative value, since it was the intervening killing of a police officer and not the robbery which obviously gave rise to the extensive manhunt. In other words, while the accused may be guilty of other crimes, such as criminal facilitation and hindering prosecution, the circumstantial evidence was not at all inconsistent with his innocence of the crime of robbery itself.
If the court is not dismissing the indictment, it would reverse and order a new trial, in the interests of justice, because of the trial court’s refusal to charge criminal facilitation in the second degree as a lesser included crime.
In another gun crime proceeding, the testimony of the accused man’s accomplice which implicated the accused in the murder of a man, the robbery on him and others of his family members, and the burglary of his home, was sufficiently corroborated by the testimony of several other of the witnesses to permit the jury to conclude that the accomplice was telling the truth. Viewing the evidence in the light most favorable to the complainant, it was legally sufficient to establish the accused man’s guilt of the crimes charged. Moreover, upon the exercise of factual review power, the evidence established the accused man’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence.
The hearing court erred in failing to suppress the photograph of the accused holding a gun which fired the type of ammunition used in the murder and robbery, as the warrantless search performed by the police upon the car in which the accused was captured was neither an inventory search nor a search incident to arrest, and the police had no reason to believe that the search would produce fruits or evidence of a crime which was in danger of being destroyed. However, any error in failing to suppress the evidence was harmless beyond a reasonable doubt as the evidence supplied by the witnesses placing the accused in the victim’s home and as a participant in the crime was overwhelming. Under the circumstances of the case, the use by the prosecutor of the accused man’s nickname was not improper.
As the accused took the witness stand without having received the Sandoval ruling he had previously requested concerning the prosecutor’s desire to question him on his illegal entry into this country, there was no error in the prosecutor’s cross-examination of the accused on this matter. The accused was afforded meaningful representation, and his sentence was not improper. The issue raise by the accused is to be without merit
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