Heard: October 5, 2016.
received and sworn to in the Dedham Division of the District
Court Department on February 4, 2013.
cases were tried before James H. McGuiness, Jr., J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Kathleen J. Hill for Steven E. Angier.
Carolyn L. Hely, Assistant District Attorney (Michael P.J.
McGee, Assistant District Attorney, also present) for the
Patrick A. Michaud for John F. Squires, III.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ. 
joint jury trial in District Court, the
defendants, John F. Squires, III, and Steven E. Angier, were
convicted of walking on a railroad track, G. L. c. 160,
§ 218, and possession of burglarious instruments, G. L.
c. 266, § 49.The complaints arose from Norwood police
officers' discovery of the defendants walking on the
Massachusetts Bay Transportation Authority (MBTA) commuter
rail train tracks near the Norwood central train station.
After the officers searched the defendants and found tools,
gloves, and two walkie-talkies tuned to the same channel, the
defendants were arrested for walking on train tracks and
possession of burglarious instruments. Squires moved for
required findings of not guilty at the close of the
Commonwealth's case, and both defendants so moved at the
close of all evidence; the motions were denied. The judge
sentenced each defendant to a term of imprisonment in a house
of correction for two and one-half years and imposed on each
defendant a fine of one hundred dollars. The defendants
separately appealed, claiming, among other things, that the
Commonwealth failed to present sufficient evidence to sustain
the convictions of possession of burglarious implements. The
Appeals Court affirmed in separate unpublished opinions,
Commonwealth v. Squires, 89 Mass.App.Ct.
1102 (2016); Commonwealth v.
Angier, 88 Mass.App.Ct. 1117 (2015). We allowed the
defendants' applications for further appellate review.
the cases were entered in this court, but before oral
argument, Angier's counsel filed a suggestion of death
and moved to vacate his convictions. The Commonwealth opposed
the motion, arguing that under Commonwealth
v. De La Zerda, 416 Mass. 247, 250-251
(1993), the order allowing Angier's application for
further appellate review should be vacated. Because of the
unique circumstances of this case, we address Angier's
appeal on the merits and conclude that the Commonwealth
failed to present sufficient evidence to sustain the
convictions. Therefore, we reverse and vacate the
in the light most favorable to the Commonwealth,
Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), the jury could have found the
following facts. On the evening of February 3, 2013, at or
about 11 P.M., Norwood police Officer Derrick Wennerstrand,
who was working as a plainclothes officer and driving an
unmarked vehicle, was observing vehicle traffic in the area
of a shopping plaza. The businesses located in the plaza were
closed. He noticed a dark-colored sedan enter the parking lot
and its two male occupants, the defendants, alight from the
vehicle. Officer Wennerstrand radioed for backup as the
defendants walked through an alley into a rear parking lot.
Another officer arrived shortly thereafter, and the officers
followed the footprints the defendants left in the fresh snow
toward the MBTA commuter railroad tracks. The officers were
able to follow the two sets of footprints through a small
wooded area that led to the train tracks. As the officers
approached the railroad tracks about five minutes later, they
saw the defendants ahead, walking on the tracks heading
south, away from the train station.
Wennerstrand noted that there were buildings on either side
of the train tracks, but he did not observe the defendants
veer off the tracks at any time. The defendants were
approximately seventy-five yards away from the officers
before they reversed their direction and headed back toward
the officers. Officer Wennerstrand said, "Norwood
police" and "Stop, " but the defendants kept
walking toward the officers, as if they were attempting to
walk past the officers. Officer Wennerstrand again identified
himself as Norwood police, holding up his arms, and ordered
the defendants to stop; the defendants complied with the
Wennerstrand first spoke with Squires, and then with Angier.
Squires, who was wearing black work gloves, told Officer
Wennerstrand that the men were "just out for a
stroll." Officer Wennerstrand was suspicious; it was
past 11 £.M. and the temperature was below freezing
that night. Officer Wennerstrand searched Squires and found a
walkie-talkie tuned to a particular channel in the pocket of
Squires's jacket. Squires was placed in restraints and
ordered to sit on the ground.
Wennerstrand next addressed Angier, who was wearing a green
and black backpack. As Angier removed the backpack and placed
it on the ground as ordered by Officer Wennerstrand, the
officer heard a metal "clang" sound. Angier stated
that he had work tools in his backpack. The officers searched
the backpack and discovered a blue crowbar, a large
screwdriver bar, a pair of black gloves, and a small red
flashlight. A search of Angier's person revealed a second
walkie-talkie, tuned to the same channel as the walkie-talkie
found on Squires. Angier was also placed in restraints. The
police subsequently ...