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Commonwealth v. Aldana

Supreme Judicial Court of Massachusetts, Worcester

September 19, 2017


          Heard: March 7, 2017.

         Indictments found and returned in the Superior Court Department on December 20, 2013. A pretrial motion to suppress evidence was heard by Daniel M. Wrenn, J., and the cases were heard by Richard T. Tucker, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Ethan C. Stiles for the defendant.

          Joseph A. Simmons, Assistant District Attorney, for the Commonwealth.

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

          LENK, J.

         In the course of arresting the defendant at his apartment on a default warrant, Worcester police officers saw in his kitchen three bags containing unknown powders. One of the bags was labeled "aluminum powder, " another "red iron oxide, " and one bag was not labeled. An unidentified red-brown powder was spilled on the counter and the kitchen window sill, and smudged on the wall around the window. Concerned about the appearance of the bags of powder, given the other circumstances in the apartment, one of the officers undertook an Internet search for information on the labeled substances. On the basis of information derived from that search, a detective requested assistance from the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the State police, and the local fire department. Representatives of these agencies arrived, seized the bags of powder, and removed them from the apartment.

         The defendant thereafter was indicted on two charges of possession of the ingredients to make an incendiary device or substance with the intent to do so, in violation of G. L. c. 266, § 102 (a.), and a single charge of possession of an incendiary device or substance, in violation of G. L. c. 266, § 102 (c) .

         After a jury-waived trial in the Superior Court, the defendant was convicted of both charges under G. L. c. 266, § 102 (a.), and acquitted of the charge under G. L. c. 266, § 102 (c) .[2] In this appeal, the defendant argues that the ingredients seized and observations made by police during the search of his apartment should have been suppressed, and that the evidence at trial was in any event insufficient to support his convictions. In the alternative, the defendant contends that his convictions are duplicative and that one must be vacated.

         To convict the defendant of a violation of G. L. c. 266, § 102 (a.), the Commonwealth was required to prove beyond a reasonable doubt that the defendant had in his possession or control, without lawful authority to do so, a "substance . . . which, alone or in combination, could be used to make a destructive or incendiary device or substance" and that he intended to "make a destructive or incendiary device or substance." To prove that what the defendant intended to make was a violation of the statute, the Commonwealth was required to establish that the device or substance was "designed or adapted to cause physical harm to persons or property by means of fire, explosion, deflagration or detonation and consisting of [a] substance capable of being ignited, whether or not contrived to ignite or explode automatically." G. L. c. 266, § 101.

         We conclude that the evidence introduced at trial was not sufficient to establish that the defendant was without lawful authority to possess the powders themselves or the incendiary substance, thermite, that the Commonwealth asserted he intended to make. Since the evidence at trial was insufficient to establish at least one critical element of the Commonwealth's case, the defendant's convictions cannot stand. Accordingly, the matter must be remanded to the Superior Court for entry of required findings of not guilty.

         1. Background.

         After a hearing on the defendant's motion to suppress, a Superior Court judge denied the motion in a written decision containing comprehensive findings of fact. The defendant thereafter was tried, jury-waived, by a different Superior Court judge. All of the individuals who had testified at the hearing on the motion to suppress -- officers involved in the arrest and the building manager -- testified to essentially the same facts at trial. In addition, testimony was introduced from another member of the Worcester police department, members of the State police bomb squad, a chemist and a State police evidence technician, two Worcester fire department lieutenants, and a defense expert in chemistry. In announcing his verdicts, the trial judge issued limited oral findings of fact and a brief explanation of his reasoning. We recite the facts the trial judge could have found, reserving some facts for later discussion.

         a. Evidence at trial.

         On October 15, 2013, officers of the Worcester police departments went to the defendant's apartment to arrest him on a default warrant for a charge of disorderly conduct. Detective Sergeant Mark Richardson of the Worcester police department, and other Worcester police officers, entered the building and went to the door of the defendant's apartment. Richardson knocked on the door and announced the police presence several times without receiving a response. After the officers heard movement inside the apartment and the sounds of breaking glass, Richardson ordered one of them to force entry into the apartment.[3]

         The defendant was arrested almost immediately upon the police entry. Through the kitchen doorway, officers could see an open kitchen cabinet and drawers standing open. The officers saw two foil bags of powder, and one unlabeled plastic bag containing a reddish-brown powder, on the counter and in the open kitchen cabinet. One foil bag was labeled "aluminum powder" and the other was labeled "red iron oxide." The officers did not recognize the names, and were not familiar with the appearance of the powders. One of the officers conducted an Internet search on his cellular telephone and reported to Richardson that, when mixed together, red iron oxide powder and aluminum powder produce thermite, a substance Richardson believed posed a significant public safety concern.

         Thereafter, Richardson contacted ATF, the State police, and the Worcester fire department; at some point, he conducted a "sweep" of the apartment. State police Trooper Eric Gahagan, a bomb squad technician, arrived and examined the three bags of powders. Based on the appearance of the substance, he suspected that the unlabeled bag contained thermite. He took three samples from each of the three bags of powder and placed them in glass vials. Gahagan also performed a "sweep" of the apartment for signs of other possibly dangerous materials, and any means for lighting Thermite, and found none. He then took the samples back to the State police crime laboratory for testing. The remaining powders were placed in a plastic bin and transported to a Department of Public Works site to be destroyed by burning. Gahagan and an ATF agent mixed the three bags of powder together, at the site, and lit them remotely using a robot with an ignited road flare. The mixture burned for approximately five minutes before it consumed all of the aluminum and burned itself out.

         A State police chemist testified regarding the steps he took to determine whether the powders seized from the defendant's apartment were, indeed, thermite. First, he examined samples of each of the three powders under a microscope and confirmed that they were aluminum, red iron oxide, and a mixture of aluminum and red iron oxide. He then attempted to ignite the mixture with a Bunsen burner and was not able to do so; he did not attempt to ignite it with tools that burn at higher temperatures, such as a road flare or a magnesium strip.

         The technical evidence concerning the properties of the various powders seized and their testing was essentially undisputed. Experts for both the Commonwealth and the defendant testified that thermite can be created by combining red iron oxide and aluminum powder, and that specific ratios are necessary for it to burn. Neither iron oxide nor aluminum powder is ignitable individually. The experts agreed that the only reason to combine red iron oxide and aluminum powder is to create a thermite mixture that can be ignited. When ignited, thermite burns at very high temperatures, at approximately 4, 000 degrees Fahrenheit. Thermite is not explosive, will not ignite spontaneously, and, because of the high temperature at which it burns, cannot be ignited with an ordinary flame, such as a match or a Bunsen burner. To reach the high temperatures necessary to ignite thermite requires heat sources such as road flares, firework sparklers, or magnesium strips.[4]

         Thermite is used in military operations to dispose of old equipment or to disable it in the field so that it does not fall into enemy hands, and in civilian operations for metal salvage. Thermite also is used for cutting metal, including steel; for welding or filling in damaged portions of railroad tracks; for spot welding; for cutting through locks to open doors and safes; and, because it is not extinguished by water, in underwater welding.[5]

         The sole evidence as to the licensing and permitting requirements applicable to thermite was introduced through Lieutenant Robert Mansfield of the Worcester fire department. Mansfield testified that he was responsible for fire hazard identification, inspection, and suppression in Worcester. Through his testimony, the Commonwealth introduced, and sought judicial notice of, §§ 9, 12, and 13 of G. L. c. 148, the State fire prevention act, and 527 Code Mass. Regs. §§ 13.00 (2012), a regulation in effect at the time of the defendant's arrest, [6]governing storage, use, and permitting of explosives, based on § 13 of the statute.[7] Mansfield explained that G. L. c. 148, § 9, [8] authorizes the fire department to require and issue permits to store and use certain explosive and inflammable substances and that G. L. c. 148, § 12, [9] requires licenses for the use and storage of, inter alia, fireworks and firecrackers. G. L. c. 148, § 13, [10] governs the storage, manufacture, and sale of explosives. The regulations concerning the manufacture, sale, and storage of explosives, implementing the provisions of G. L. c. 148, § 13, were then contained in 527 Code Mass. Regs. §§ 13.00.

         Mansfield testified that the fire department's authority to regulate the storage of thermite was derived from 527 Code Mass. Regs. §§ 13.00.[11] Although that regulation did not mention thermite directly, he stated that thermite fell within its requirements because it explicitly incorporated 27 C.F.R. § 55.23, a Federal regulation setting forth a list of explosive materials.[12] To possess thermite in his apartment, the defendant would have been required to have both a license from the State, after passing an explosives handling course, and a permit from the city of Worcester. Mansfield had examined the city's records and found no indication that the defendant had a permit to possess thermite; he stated also that he would never issue such a permit to anyone living in a multiunit residential building. He did not explain which of the statutory or regulatory definitions pertaining to "explosive, " see G. L. c. 266, § 101 (defining "[e]xplosive" as "any element, compound or mixture that is manufactured, designed or used to produce an explosion"), were applicable to thermite.

         Mansfield testified on cross-examination, without reference to any applicable statute or regulation, that possession of aluminum powder or red iron oxide would require a permit if it were above "a certain amount" because they are an "inhalation hazard."[13] No permit was required for possession of aluminum oxide. He also agreed that, under G. L. c. 148, § 13, certain quantities of explosives could be held without a permit or a license.

         b. Trial proceedings.

         At the close of the Commonwealth's case, the judge denied the defendant's motion for required findings of not guilty. At the close of all the evidence, the judge found the defendant guilty of two counts of possession of the ingredients necessary to make a destructive or incendiary device or substance without lawful authority and with the intent to make such a device or substance, in violation of G. L. c. 266, § 102 (a.) . The ...

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