Commonwealth v. Devaughn Johnson.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-91

COMMONWEALTH

vs.

DEVAUGHN JOHNSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Devaughn Johnson, appeals from his

conviction by a Superior Court jury of accessory after the fact

to armed robbery, G. L. c. 274, § 4. He argues that the

evidence was insufficient to prove that he knew that the two

principals had committed an armed robbery, or that he attempted

to aid them in avoiding punishment. He further contends that he

cannot be convicted of being an accessory after armed robbery

because one of the principals, who died before trial, was not

convicted of the armed robbery. We affirm.

Background. On the evening of November 21, 2020, Aspasia

Filiogiannis rented a hotel room in Haverhill, accompanied by

the two principals: her boyfriend David Trongeau and his friend
Kaiden Henderson. A short time later, the defendant arrived at

the hotel room. Henderson, Trongeau, and the defendant left the

hotel in Filiogiannis's silver Toyota Corolla. Henderson was

wearing black pants and a black hooded sweatshirt; Trongeau was

wearing white pants and a white shirt. Filiogiannis understood

that they were going elsewhere in Haverhill to "smoke and get

some weed."

The victim, Jose Vasquez, was living with his parents and

thirteen-year-old sister in a second-floor apartment in

Haverhill. At about 9:24 P.M. on November 21, surveillance

cameras outside the building captured video showing the Toyota

passing available parking spaces alongside the victim's home and

stopping farther down the street. Leaving the Toyota running

and with its lights on, the driver (Henderson) and front seat

passenger (Trongeau) got out and walked quickly to the victim's

home. The back seat passenger remained in the Toyota, as shown

by the light from a cell phone; the jury could infer that it was

the defendant. 1

The victim's sister was sitting at the kitchen table when

there was a knock at the apartment door. She opened it to

1 The defendant would have been recognized by the victim's
family; he had been to their home "a lot" and had eaten a meal
there, and he had a face tattoo of a six-pointed star. In the
defendants' case, Henderson testified that the defendant waited
in the back seat of the Toyota.

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Henderson and Trongeau. The victim escorted them into his

bedroom. A few minutes later, there were crashing sounds and

the victim walked out of his bedroom with blood coming out of

his neck and arms. The victim fell to the kitchen floor, lost

consciousness, and soon died, despite his parents' efforts to

stop the bleeding.

Twenty-four minutes after they had entered the apartment

building, Henderson and Trongeau ran out of it. Henderson had a

multicolor-striped backpack and a duffel bag slung over his

shoulder and his pockets were bulging. Trongeau, carrying a

knife, ran directly behind Henderson. Just before Henderson and

Trongeau reached the Toyota, the defendant opened both of its

front doors. Henderson got behind the wheel, Trongeau got into

the back seat, and the Toyota sped off.

Police arrived at the victim's home. In the victim's

bedroom was a locked safe stained with blood. Inside the safe

were three bundles of cash totaling $2,730, labeled "exotics,"

"edibles," and "biscotti," which was street terminology for

flavors of marijuana. Over ten thousand dollars in cash was

missing from the victim's room. The victim had died of

seventeen stab wounds, including to the neck, chest, and hands.

Meanwhile, about an hour after he had left the hotel, the

defendant entered its lobby alone. He sauntered past the front

desk and, as soon as he was out of sight of the desk clerk,

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quickly walked to a rear door, where he let Henderson and

Trongeau into the hotel. Henderson, Trongeau, and the defendant

went to Filiogiannis's hotel room and banged hard on the door

until she let them in. Trongeau's clothes were covered in

blood, and Henderson's clothes were also bloodstained. They

were carrying the victim's multicolor-striped backpack and

another bag. Trongeau had a cut on the side of his right index

finger.

Two customers met the defendant in the hotel room to buy

exotic marijuana. On the bed was a duffel bag containing "a lot

of weed," from which the defendant obtained the marijuana. When

one of the customers saw that Trongeau had a knife and blood on

his hand, that customer asked what had happened and Henderson

told him to "mind [his] business." When the other customer saw

Trongeau's bloody hand and asked what happened, the defendant

interjected, "mind your fucking business." Trongeau showered,

and he and Henderson put their bloody clothes in bags. 2

Forty-eight minutes after the defendant and Henderson had

returned to the hotel, they left with the two customers. In

exchange for exotic marijuana that the defendant gave them, the

2 In a dumpster in the hotel parking lot, police later found
clothing including Henderson's jeans, stained with blood that
matched the victim's.

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two customers gave the defendant a ride to elsewhere in

Haverhill and Henderson a ride to New Hampshire.

Filiogiannis gave Trongeau a ride to Taunton. During the

drive, Trongeau was upset and crying. He said that he and

Henderson were arguing with the victim, and that he "blacked out

and stabbed [the victim] in the neck." In a dumpster in

Taunton, Trongeau discarded a bloody hotel comforter and the

victim's multicolor-striped backpack. 3

On November 22, the defendant received a jail call from an

inmate. In it the defendant said that on the night before, the

victim had been stabbed to death. When the inmate asked what

happened, the defendant referred to someone as "little bro who I

got popped with" and said, "I'm trying to get some bread for him

right now to skip state." At the mention of cameras outside the

victim's apartment building, the defendant said, "I got an

alibi, I'm at the crib."

On November 23, Trongeau was arrested. That evening, the

defendant received a jail call from a different inmate, who said

that Trongeau was "coming here." The defendant told that inmate

to tell Trongeau "to keep his mouth shut." In another call from

that inmate, the defendant said, "RIP Moon Dog," using the

3 Police later found the backpack at a waste disposal
facility. In it were rolled marijuana cigarettes and a digital
scale.

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victim's nickname. The defendant also said, "Who put me in the

whip?" "Whip" is slang for car.

Interviewed by police on November 25, the defendant said he

spent the night of November 21 at home with his girlfriend. He

admitted he was childhood friends with Trongeau, but denied

knowing Henderson. 4 He said the last time he had been in the

victim's apartment was "months" before.

On December 1, 2020, police arrested Henderson in a hotel

room in Boston. In his possession was a one-way bus ticket to

South Carolina for the following day, bought using a false name.

The defendant was charged with two indictments for

accessory after the fact, one predicated on murder, and the

other on armed robbery. Henderson and Trongeau were charged

with the murder and armed robbery of the victim. Trongeau died

before trial, and the Commonwealth entered a nolle prosequi of

his indictments.

The defendant and Henderson were tried jointly. After the

Commonwealth presented evidence as set forth above, Henderson

testified that the defendants' plan was to buy marijuana from

the victim, and during the transaction Trongeau suddenly stood

up, pulled out a knife, and stabbed the victim in the neck.

4 At trial, Henderson testified that the defendant was a
"good friend" of his. On November 21, the defendant and
Henderson had tried to rent a different hotel room together.

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Henderson testified that the black bag he took from the victim's

bedroom was his own backpack that he had left there previously.

Henderson admitted that during the drive back to the hotel he

and Trongeau were covered in blood, but testified that no one

told the defendant about the armed robbery and stabbing or asked

him to let them into the hotel through the back door.

Henderson was convicted of first-degree felony murder and

armed robbery. The defendant was convicted of accessory after

the fact to armed robbery, and acquitted of accessory after the

fact to murder. The defendant now appeals.

Discussion. Sufficiency of evidence. The defendant argues

that the evidence was insufficient for the jury to convict him

of accessory after the fact to armed robbery.

To prove that the defendant had committed accessory after

the fact to armed robbery, the Commonwealth was required to

establish that the defendant knew that Henderson and Trongeau

had committed armed robbery, after which the defendant

"harbor[ed], conceal[ed], maintain[ed], or assist[ed] the

principal felon[s] . . . or g[ave] such offender[s] any other

aid, . . . with intent that [they would] avoid or escape

detention, arrest, trial or punishment." G. L. c. 274, § 4.

See Commonwealth v. Rivera, 482 Mass. 145, 147-148 (2019). We

consider the facts in the light most favorable to the

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Commonwealth. See Commonwealth v. Baez, 494 Mass. 396, 400

(2024).

The defendant contends that the evidence did not establish

that he knew that Trongeau and Henderson had committed armed

robbery, or that he intended to render them aid to avoid

punishment; his conviction is a legal impossibility because

Trongeau was never convicted as principal; and the evidence of

his conduct included alternate theories that were not supported

by substantial evidence. We consider each argument in turn.

1. Knowledge of armed robbery. The defendant contends

that it would be "speculative" for the jury to infer that the

defendant learned of the armed robbery after Trongeau and

Henderson got into the Toyota. We are not persuaded.

The jury could infer that the defendant knew that Henderson

and Trongeau had committed armed robbery. From his position in

the back seat of the Toyota, the defendant opened both of its

front doors in the seconds while Henderson and Trongeau were

running toward it. Cf. Baxter v. Commonwealth, 489 Mass. 504,

512 (2022) (accessory after fact proven with evidence that after

gunshots nearby, defendant drove shooter away). Henderson was

carrying the multicolor-striped backpack and the other bag,

neither of which he had had when he left the Toyota minutes

before. At the hotel, the defendant sauntered past the front

desk and then speed-walked to the back door to let Henderson and

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Trongeau into the hotel. The defendant arranged to sell

marijuana stolen from the victim, which he obtained from a black

duffel bag that the jury could infer was the bag Henderson had

carried out of the victim's home. Henderson's black clothes

were bloodstained, and Trongeau's white clothes were blood-

soaked and he was carrying a knife. When one of the customers

asked what had happened to Trongeau, the defendant warned the

customer to "mind your fucking business." The defendant's

consciousness of guilt added to proof of his intent: in jail

calls, he said he had an "alibi" and demanded to know who had

"put [him]" in the Toyota, and he falsely told police that he

spent the evening of the murder with his girlfriend and did not

know Henderson.

That was ample evidence proving the defendant's knowledge

of the armed robbery. See Commonwealth v. Watkins, 486 Mass.

801, 807 n.10 (2021) ("Even assuming that [accessory] did not

know about the armed robbery when he initially joined

[principals] in the vehicle, the jury could have inferred that

[accessory] became aware that [principal] had robbed the victim

of his vehicle once [principal] gave [accessory] the pistol and

showed him that the victim was locked in the trunk"). To the

extent that the defendant argues that the evidence did not prove

that he had "pre-existing knowledge" of a plan of Henderson and

Trongeau to rob the victim at knifepoint, the argument is

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unavailing because pre-existing knowledge is not an element of

the crime of accessory after the fact. See Commonwealth v.

Hoshi H., 72 Mass. App. Ct. 18, 21 (2008).

2. Intent to aid in avoiding punishment. The defendant

contends that the evidence was insufficient to prove that he

intended to aid Henderson and Trongeau in avoiding punishment.

The jury could infer that the defendant aided both

principals by opening the Toyota's doors to speed their getaway,

even though he did not drive the getaway car as the defendant

did in Baxter, 489 Mass. at 512. In addition, the defendant

aided Trongeau by telling the marijuana customer to "mind your

fucking business," and aided Henderson by giving the customers

exotic marijuana stolen from the victim in exchange for their

driving Henderson to New Hampshire. The defendant aided

Henderson's attempt to avoid arrest by instructing an inmate to

warn Trongeau to "keep his mouth shut," and, the jury could

infer, by giving Henderson money to buy a one-way bus ticket to

South Carolina to "skip state." There was more than sufficient

evidence to prove the defendant's intent to aid Henderson and

Trongeau in avoiding punishment. See Rivera, 482 Mass. at 151

("we continue to uphold convictions of accessory after the fact

where, for instance, the defendants aided the principals in

fleeing the scene of the crime, where they hid or destroyed

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evidence, or where they assisted in the disposal of stolen

goods").

3. Lack of conviction of principal. The defendant argues

that because the Commonwealth entered a nolle prosequi of the

armed robbery indictment of Trongeau, who died before trial, the

defendant cannot be convicted of being an accessory after that

crime. We are not persuaded.

"To convict someone as an accessory after the fact, it is

necessary to prove beyond a reasonable doubt that the alleged

principal was guilty" (quotation and citations omitted).

Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 248 n.16

(2016). As set forth above, the jury heard ample evidence that

both Henderson and Trongeau committed armed robbery. The judge

instructed that the Commonwealth was required to prove that the

defendant "assisted either . . . Henderson or . . . Trongeau or

both following the commission of . . . armed robbery." We

assume that the jury followed that instruction when they

convicted the defendant of being an accessory after armed

robbery. Moreover, they separately convicted Henderson of armed

robbery. Trongeau's death before trial did not prevent this

defendant's conviction as an accessory after the armed robbery.

4. Alternate theories of defendant's conduct. Finally,

the defendant argues that because the jury heard evidence of his

various acts as an accessory after the fact to armed robbery,

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"the risk existed that the jury found [the defendant] guilty

based on insufficient grounds." 5

The defendant's argument is essentially that there was so

much evidence of different acts he committed in aiding the

principals that the Commonwealth's proof is insufficient because

we cannot know which of the many pieces of proof the jury

believed. The argument is without merit. As set forth above,

the jury heard abundant evidence proving the defendant guilty of

being an accessory after the fact to the armed robbery of the

victim.

Judgment affirmed.

By the Court (Singh, Grant &
Brennan, JJ. 6),

Clerk

Entered: May 7, 2025.

5 The defendant does not argue, and did not request at
trial, that the judge should have instructed that the jury had
to unanimously agree as to which facts proved each element of
accessory after the fact to armed robbery. We do not reach that
issue, except to say that it appears that he would not have been
entitled to such an instruction. See Commonwealth v. Santos,
440 Mass. 281, 285-286 (2003) (unanimity instruction not
required as to factual scenario for armed robbery), overruled on
other grounds by Commonwealth v. Anderson, 461 Mass. 616, cert.
denied, 568 U.S. 946 (2012).

6 The panelists are listed in order of seniority.

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