Commonwealth v. Rivera, 16-P-331

91 Mass.App.Ct. 796

81 N.E.3d 327

COMMONWEALTH

v.Javier RIVERA.

No. 16-P-331

Appeals Court of Massachusetts, Bristol..

April 5, 2017

July 17, 2017

Meghan K. Oreste for the defendant.

Robert P. Kidd, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Sullivan, & Desmond, JJ.

SULLIVAN, J.

The defendant, Javier Rivera, appeals from his conviction of possession of a burglarious instrument, in violation of G. L. c. 266, § 49.¹ 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.

1. Sufficiency. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (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.² The men were standing in front of a convenience store, wearing dark clothing.³ 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 men.⁴

The 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.

The two 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.

"We 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, 61 N.E.3d 441 (2016), quoting from Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005).

The 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, 52 N.E.3d 105 (2016), quoting from Commonwealth v. Bright, 463 Mass. 421, 435, 974 N.E.2d 1092 (2012).⁵ 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, 867 N.E.2d 743 (2007).

There 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.⁶ Contrast Commonwealth v. Squires, 476 Mass. 703, 710-711, 71 N.E.3d 520 (2017). The question before the jury was whether the Commonwealth had proved 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, 597 N.E.2d 1029 (1992) ; Commonwealth v. Warren, 475 Mass. 530, 535-536, 58 N.E.3d 333 (2016) ; Commonwealth v. Meneus, 476 Mass. 231, 237, 66 N.E.3d 1019 (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, supra.

The screwdriver is the evidence upon which the jury also must rely to link the defendant to the store.⁷ 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.

The 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.

From 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.⁸ See Abraham v. Woburn, 383 Mass. 724, 726 n.1, 421 (N.E.2d 1206 1981) ; Commonwealth v. Mercado, 456 Mass. 198, 208 n.21, 922 N.E.2d 140 (2010). See generally Mass. G. Evid. § 103(a)(1) (2017).

The act 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, 18 N.E.3d 654 (2014), quoting from Commonwealth v. Norris, 462 Mass. 131, 138-139, 967 N.E.2d 113 (2012). Contrast Commonwealth v. Romero, 464 Mass. 648, 659 (n.9, 984 N.E.2d 853 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, 395 N.E.2d 350 (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,⁹ the similarity in the clothing, and the defendant's proximity to the scene, were sufficient to sustain the Commonwealth's burden beyond a reasonable doubt.¹⁰

2. Showup. The 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, 21 N.E.3d 157 (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, 960 N.E.2d 902 (2012), quoting from Commonwealth v. Martin, 447 Mass. 274, 280, 850 N.E.2d 555 (2006). "If the identification passes muster under this test, then it is for the jury to decide what weight to give to the identification." Ibid.

"Relevant 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, 657 N.E.2d 458 (1995). The officers had good reason to conduct a showup 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 their clothing.

In 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, 888 N.E.2d 370 (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, 960 N.E.2d 902. Furthermore, "[t]rial counsel had the opportunity to bring out the...