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Commonwealth v. Squires

Supreme Judicial Court of Massachusetts, Norfolk

March 27, 2017

COMMONWEALTH
v.
JOHN F. SQUIRES, THIRD. COMMONWEALTH
v.
STEVEN E. ANGIER.

          Heard: October 5, 2016.

         Complaints received and sworn to in the Dedham Division of the District Court Department on February 4, 2013.

         The cases were tried before James H. McGuiness, Jr., J.

         After 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 Commonwealth.

          Patrick A. Michaud for John F. Squires, III.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. [1]

          HINES, J.

         After a joint[2] 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.[3]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.[4] 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.[5] 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 The Appeals Court affirmed in separate unpublished opinions, Commonwealth v. Squires, 89 Mass.App.Ct. 1102 (2016); Commonwealth v. Angier, 88 Mass.App.Ct. 1117 (2015).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.

         After 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 convictions.

         Background.

         Taken 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.

         Officer 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 second order.

         Officer 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.

         Officer 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 ...


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