Commonwealth v. Rivera, AC 16-P-331

Background

Late-night attempted break-in of a convenience store at ~1:45 A.M.; eyewitness across the street observed two men in dark clothing, one striking the door with a pipe/crowbar while the other acted as lookout; eyewitness could not see faces.
Witness called police; officers found pry damage to the door (including a softball-sized hole) and drove the neighborhood seeking suspects.
About 10–20 minutes later, officers encountered two men in dark clothing ~½ mile away; an officer heard a metallic object fall as he drove past, stopped, and spoke with them; a screwdriver was recovered ~25–30 feet from where the men were spoken to and a small flashlight was found on one man.
A showup was conducted ~15–20 minutes after the incident; the eyewitness told police the suspects were wearing the "exact same clothing" but said he had not seen their faces and could not detail clothing features.
Photographs showing portions of the screwdriver held against pry marks on the door were shown to the jury; no expert testified the screwdriver definitively caused the marks and the screwdriver itself was not introduced.
Defendant was convicted of possession of a burglarious instrument (G. L. c. 266, § 49); he appealed arguing insufficiency of evidence, an unduly suggestive showup, and improper prosecutorial remarks in closing.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Rivera)	Held
Sufficiency of evidence to prove possession with intent	Circumstantial evidence (proximity in time/place, clothing match, officer heard metallic object drop, screwdriver found where heard, screwdriver fits pry marks) supports joint venture and intent	Description was generic; witness didn’t see faces; officer didn’t see either man drop screwdriver; screwdriver not proven to match or to have been used; inferences are stacked	Majority: Evidence sufficient when viewed favorably to Commonwealth; jury could infer defendant was one of two men and intended burglarious use. Dissent: would reverse for insufficiency.
Showup identification admissibility	Immediate showup was reasonable to preserve fresh witness memory; witness identified clothing not faces; any suggestiveness went to weight	Showup (handcuffed suspects, spotlight) was suggestive; witness gave lay-opinion without foundation; identification unreliable	Court: Showup not unnecessarily suggestive; identification of clothing admissible and weaknesses were for cross-examination and jury weight.
Prosecutor's closing argument about crowbar and disposal	Prosecutor may argue fair inferences from testimony that someone hit door with a crowbar/pipe and that defendants left scene (implying disposal)	Prosecutor misstated facts by asserting defendants ran and discarded crowbar without evidence	Court: Statements that men had a crowbar were supported by witness testimony; claiming they ran was error but harmless given jury instructions that closing is not evidence.
Admissibility/weight of alleged "match" between screwdriver and pry marks	Photographs permitted jury to infer the screwdriver fit pry marks; lay assessment allowed	No foundation or expert established a match; photos show only that screwdriver could not be ruled out; prosecutor overstated certainty in closing	Court: Whether a match exists was for the jury as a lay inference; absence of expert did not make the evidence inadmissible—jury could weigh its probative value.

Key Cases Cited

Commonwealth v. Latimore, 378 Mass. 671 (review of sufficiency standard)
Commonwealth v. Gomes, 475 Mass. 775 (standards for required finding / sufficiency review)
Commonwealth v. Squires, 476 Mass. 703 (when tools are burglarious and intent requirement)
Commonwealth v. Crayton, 470 Mass. 228 (showup identification standards)
Commonwealth v. Molina, 454 Mass. 232 (lay opinion and jury's role in assessing matches)
Commonwealth v. Grassie, 476 Mass. 202 (limits on convictions resting on piling inference upon inference)