Heard: April 5, 2017.
of Burglarious Instruments. Constitutional Law,
Identification. Due Process of Law, Identification.
Identification. Practice, Criminal, Required finding, Motion
to suppress, Argument by prosecutor.
received and sworn to in the Fall River Division of the
District Court Department on March 27, 2014. A pretrial
motion to suppress evidence was heard by Kevin J. Finnerty,
J., and the case was tried before him.
K. Oreste for the defendant.
P. Kidd, Assistant District Attorney, for the Commonwealth.
Present: Milkey, Sullivan, & Desmond, JJ.
defendant, Javier Rivera, appeals from his conviction of
possession of a burglarious instrument, in violation of G. L.
c. 266, § 49. The defendant contends that (1) the
evidence was insufficient to show that he possessed a
burglarious instrument with intent to commit a crime, (2) the
showup procedure was unnecessarily suggestive, and (3) the
prosecutor argued facts not in evidence in his closing
argument. We affirm.
the evidence in the light most favorable to the Commonwealth,
see Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), a reasonable jury could find that
on the night of March 27, 2014, at around 1:45 A.M., a
witness saw two men across the street from his home. The
street was otherwise deserted. The men were standing in front of
a convenience store, wearing dark clothing. While one of the
men was banging on the door with a bar or a crowbar, the
other was standing facing the street and looking in both
directions. Periodically, both men walked away to check the
street. Eventually, they left and the witness called the
police. When an officer arrived, he noticed that the door to
the convenience store had been pried open at the bottom, and
there was a softball-sized hole in the door. Another officer,
who also arrived at the scene, drove around the immediate
area with the car windows open searching for two men who fit
the witness's description. After driving for
approximately ten minutes he saw two men in dark clothing
about one-half mile from the store. The officer also heard
"somebody drop some kind of metallic object, like a hard
object fell on the ground" near the two
officer called for backup, drove past the men, parked his
car, and walked back towards them. He engaged them in
conversation. They were cooperative, and told the officer
that they were walking to St. Anne's hospital, which was
nearby. Other officers arrived and began to search the area;
the defendant seemed nervous while speaking to these
officers. A screwdriver was found in a public area some
twenty to thirty feet back from where the defendant and his
companion stood talking to the officer, in the location where
the officer said he heard a metal object fall. A subsequent
search of the defendant revealed a six-inch flashlight.
men were then driven to the convenience store. During a
showup procedure, which occurred some fifteen to twenty
minutes after the witness first saw two men, the witness told
police that the defendants' clothing was
"definitely" the clothing the witness saw the men
wearing, and that they were wearing the "exact same
clothing." However, the witness also said that he could
not say exactly what they were wearing, and that he did not
see their faces. The police officers submitted photographs
from which the jury were asked to infer that the screwdriver
matched some of the pry marks left on the door.
review the denial of a motion for a required finding of not
guilty to determine whether the evidence, viewed in the light
most favorable to the Commonwealth, 'was sufficient to
persuade a rational jury beyond a reasonable doubt of the
existence of every element of the crime[s]
charged.'" Commonwealth v.
Gomes, 475 Mass. 775, 781 (2016), quoting from
Commonwealth v. Lao, 443 Mass.
770, 779 (2005).
Commonwealth's theory at trial was that the defendant and
his codefendant participated in a joint venture to break into
the convenience store using a bar or crowbar or the
screwdriver, or both. "A joint venture is established by
proof that two or more individuals 'knowingly
participated in the commission of the crime charged . . .
with the intent required for that offense.'"
Commonwealth v. Winquist, 474
Mass. 517, 521 (2016), quoting from Commonwealth
v. Bright, 463 Mass. 421, 435
(2012). We review the evidence in the light most
favorable to the Commonwealth, mindful that a joint venture
"may be proved by circumstantial evidence."
Commonwealth v. Braley, 449 Mass.
316, 320 (2007) .
is no question that the Commonwealth proved that two men
tried to break into the convenience store using a tool in the
early morning hours. Contrast Commonwealth v.
Squires, 476 Mass. 703, 710-711 (2017). The question
before the jury was whether the Commonwealth had proven
beyond a reasonable doubt that the two men stopped on the
street were the two men in question. The generic description
of dark clothing was, alone, insufficient to prove that the
defendant was one of the culprits beyond a reasonable doubt.
Cf. Commonwealth v. Cheek, 413
Mass. 492, 496 (1992); Commonwealth v.
Warren, 475 Mass. 530, 535-536 (2016);
Commonwealth v. Meneus, 476 Mass.
231, 237 (2017). Given the vagueness of the description,
neither the amount of time that had passed, the distance from
the scene, nor the lateness of the hour add appreciably to
the calculus on their own or in combination, without more.
Cf. Warren, supra; Meneus,
screwdriver is the evidence upon which the jury also must
rely to link the defendant to the store. The jury were
permitted to infer from the photographs that the screwdriver
fit the marks on the door. The remaining question was whether
the screwdriver could be linked to the men. This presents an
admittedly close question, but we conclude that the jury were
permitted to draw that inference.
officer testified that he heard somebody drop a metallic
object, and that the sound came from where the two men were
walking. It was 1:45 A.M., cold, and the officer saw no one
else on the street. The officer drove past, turned around,
and spoke to the men some twenty-five to thirty feet from
where he heard the metallic sound. Responding officers found
the screwdriver twenty-five to thirty feet away from where
the defendant was standing with the officer, in just the
place the officer said he heard something fall.
this evidence the jury were permitted to infer that one of
the two men dropped the screwdriver. The defendant argues
that the evidence was insufficient because the officer did
not see either man dispose of the screwdriver. There was no
objection to the officer's testimony that he heard
"somebody drop some kind of metallic object." The
testimony was therefore admitted for all purposes, and the
jury were entitled to give it whatever probative weight they
deemed appropriate. See Abraham v. Woburn, 383 Mass.
724, 726 n.l (1981); Commonwealth v.
Mercado, 456 Mass. 198, 208 n.21 (2010). See generally Mass.
G. Evid. § 103(a) (1) (2017) .
of possessing and then disposing of the screwdriver suffices
to prove that "the defendant knowingly participated in
the commission of the crime charged . . . with the intent
required for that offense." Commonwealth
v. Garcia, 470 Mass. 24, 30-31 (2014),
quoting from Commonwealth v.
Norris, 462 Mass. 131, 138-139 (2012). Contrast
Commonwealth v. Romero, 464 Mass.
648, 659 n.9 (2013). The jury could infer that one of the men
dropped the screwdriver in order to cover up their
participation in the attempted break-in. See
Commonwealth v. Ronayne, 8
Mass.App.Ct. 421, 424-425 (1979) . This inference, coupled
with the fact that the jury were permitted to find that the
screwdriver fit the pry marks found on the door,
similarity in the clothing, and the defendant's proximity
to the scene, were sufficient to sustain the
Commonwealth's burden beyond a reasonable
defendant contends that the out of court showup resulted in
an identification that should have been suppressed, and that
there was not good reason to conduct it. See
Commonwealth v. Crayton, 470 Mass.
228, 236 (2014). The defendant carries the burden of proof to
show "that the showup was so unnecessarily suggestive
and conducive to irreparable mistaken identification as to
deny [him] due process of law." Commonwealth
v. Amaral, 81 Mass.App.Ct. 143, 148 (2012),
quoting from Commonwealth v.
Martin, 447 Mass. 274, 280 (2006). "If the
identification passes muster under this test, then it is for
the jury to decide what weight to give to the
to the good reason examination are the nature of the crime
involved and corresponding concerns for public safety; the
need for efficient police investigation in the immediate
aftermath of a crime; and the usefulness of prompt
confirmation of the accuracy of investigatory information,
which, if in error, will release the police quickly to follow
another track." Commonwealth v.
Austin, 421 Mass. 357, 362 (1995). The officers had
good reason to conduct a show up in the immediate aftermath
of the crime, when the witness's memory was fresh and
unclouded, and the police still had the opportunity to pursue
other avenues if the witness did not identify the men or
addition, the witness identified the clothing, not the men.
We agree with the motion judge that the witness's
statement was not the result of an unnecessarily suggestive
showup procedure. See Commonwealth v.
Powell, 72 Mass.App.Ct. 22, 26 (2008). "To the
extent that the witness's identification was of those
articles as opposed to the defendant, there was an absence of
the 'extreme' circumstances required to render such
indirect proof of the defendant's guilt fundamentally
unfair." Ibid. See generally Amaral,
supra at 149. Furthermore, "[t]rial counsel had
the opportunity to bring out the weaknesses of the
witness's identification on cross-examination."
Powell, supra at 26. "Any degree of
suggestiveness went to the weight of the identification, not
its admissibility." Ibid.
defendant contends that the prosecutor referred to facts not
in evidence during the closing argument by claiming that the
defendant had a crow bar, which he disposed of when he fled
the scene. There was no objection at trial. We review these
claims for error, and if there was error, for a substantial
risk of a miscarriage of justice. See Commonwealth
v. Randolph, 438 Mass. 290, 297 (2002) .
was no error in the prosecutor's reference to the crow
bar during closing arguments. The witness testified at trial
that he saw a man "hitting the door with ... a pipe or a
crow bar." The prosecutor's statements were
supported by the record and he could therefore argue
"the evidence and the fair inferences which can be drawn
from the evidence." Commonwealth v. Braley, 449
Mass. 316, 329 (2007), quoting from Commonwealth v.
Hoffer, 375 Mass. 369, 378 (1978). That the men disposed
of the bar or crowbar was a ...