COMMONWEALTH vs. RICHARD FERGUSON.
Supreme Judicial Court of Massachusetts
July 1, 1981
384 Mass. 13
Worcester. March 3, 1981. — July 1, 1981. Present: HENNESSEY, C.J., BRAUCHER, WILKINS, LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
At the trial of a defendant for commission of an unnatural and lascivious act under
COMPLAINT received and sworn to in the Central Worcester Division of the District Court Department on January 19, 1979.
Upon appeal for trial by a jury of six, the case was tried before Garbose, J.
The Supreme Judicial Court granted a request for direct appellate review.
Claudia C. Conway (Thomas F. Sullivan, Jr., with her) for the defendant.
William E. Loughlin, Assistant District Attorney, for the Commonwealth.
LIACOS, J. The defendant appeals pursuant to
We reverse the defendant‘s conviction on the ground that the Commonwealth‘s evidence was insufficient to support a
1. The Commonwealth‘s evidence. The Commonwealth‘s evidence consisted solely of the testimony of the arresting police officer, Richard M. Sandberg. We summarize that testimony. On the evening of January 18, 1979, Officers Richard Sandberg and Henry R. Gaylord of the Worcester police department, both in plain clothes, observed a woman, known to them by sight, standing on the sidewalk motioning to passing motor vehicles. Shortly after 8:30 P.M. they directed the woman to leave the area. The officers watched the woman as she walked away. They observed the defendant drive up to the curb and, after a brief conversation, the woman got into the defendant‘s car. The two officers followed the defendant‘s car in their cruiser for several blocks, until at approximately nine o‘clock it entered a paved blacktop parking lot, located at 46 Wellington Street, Worcester.
The parking lot was abutted on the north and east by multifloor, multiunit residential dwellings; and on the west partially by a cottage-type house with several apartments. A gasoline station abutted the rear portion of the westerly perimeter of the lot. A building next to the property at 46 Wellington Street had been destroyed by fire. The building along the north perimeter of the lot was well illuminated and separated from the lot by a fence. There were street lights on Wellington Street. Officer Sandberg did not know if the parking lot itself was illuminated. There were six or seven other automobiles in the lot. It was a clear night. The temperature was below zero and the wind was blowing fiercely. The ground was icy in spots.
The defendant drove to the rear of the parking lot and backed into a space behind the gas station area. The officers parked their cruiser on Wellington Street and with unlit
Upon the completion of Officer Sandberg‘s testimony, the Commonwealth rested. The defendant‘s motion for a required finding of not guilty was argued on the issue whether there was sufficient evidence to warrant a finding that the act occurred in a public place. The judge denied the motion. The defendant rested without offering any evidence.
2. Motion for required finding of not guilty. In considering whether the Commonwealth‘s evidence is sufficient to withstand a motion for a required finding of not guilty we must determine whether that evidence, considered in the light most favorable to the Commonwealth, was sufficient to permit a jury reasonably to infer the existence beyond a reasonable doubt of each essential element of the crime charged. Commonwealth v. Rhoades, 379 Mass. 810, 815 (1980), and cases cited.
The only issue raised by the motion for a required finding was whether the evidence warranted a finding that the complained of conduct occurred in a public place. It was not disputed that the conduct complained of in this case was committed by two adults who engaged in a consensual act.
The rationale of
We believe the Commonwealth‘s evidence in this case falls short of the required standard.2 The Commonwealth
The Commonwealth contends that it easily could be inferred that the other cars parked in the lot belonged to people in the three multifamily dwellings adjacent to the lot, and that it is reasonable to infer that one or more of those persons may have had occasion to enter the lot and pass near the defendant‘s car. Alternatively, the Commonwealth posits one could reasonably infer that persons might pass through the lot at nine o‘clock at night on their way to one of the buildings.
However, evidence warranting an inference that the public has theoretical access to a place does not necessarily support a finding that the place is public. In State v. Metje, 269 S.W.2d 128, 131 (Mo. App. 1954), the court aptly observed: “It . . . seems obvious that a place may be public at some times and private at others. . . . In the instant case it is elementary that the burden was upon the state to prove, beyond a reasonable doubt, that the place where the defendant was found was, at that time, ‘public.’ The only evidence presented on this issue was that the spot selected by the defendant was in the cemetery near a driveway which was used by the public. We have concluded that this evidence is not sufficient to prove this essential element of the
The Commonwealth‘s theory of this case requires piling inference upon inference. No evidence was produced showing direct access from the surrounding residential structures to the parking lot, or that the lot was ever used by persons using those buildings, or whether it was a public or private lot. There was no evidence regarding the character or use of the property at 46 Wellington Street; nor was there evidence regarding the size of the parking lot, the relative distance between the defendant‘s car and the other cars in the lot, or of the visibility of the inside of the defendant‘s car from the buildings or other cars. The evidence leaves to speculation the height and construction of the fence in the rear of the parking lot. There was no evidence whether the lot was frequented at night regularly, rarely, or at all. On this record it is purely a matter of conjecture whether the lot was frequently traveled or rarely traveled.
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
HENNESSEY, C.J. (dissenting, with whom Nolan and Lynch, JJ., join). I agree that it is incumbent upon the Commonwealth to prove that the consensual act occurred in a public place. However, this case describes a street incident toward which the majority opinion applies too narrow a view of the term “public place.” I suggest that there can ordinarily be no reasonable expectation of privacy in a case like this where an automobile maneuvers in an urban area. Scagliotti, cited by the majority, does not add strength to the majority opinion, because that case simply held that the public nature of the episode was a question of fact for proof by the prosecution. Indeed, in Scagliotti, despite substantial evidence of efforts toward privacy, this court held that the defendant was not entitled to a directed verdict on the “public place” issue. 373 Mass. at 629. I add that defendants similarly situated, in future cases, may not take much comfort from the instant case, since it seems clear to me that the majority opinion is suggesting that the Commonwealth could have made its case with a few, easily provable, added facts.