61 Mass. App. Ct. 144 | Mass. App. Ct. | 2004
Lead Opinion
After a jury-waived trial in the Superior Court, the defendant was convicted of breaking and entering in the daytime and possession of burglarious tools.
1. Sufficiency of the evidence. Because the convictions at issue relate to two separate incidents, a break-in at the Metropolitan District Commission (MDC) field office in Oakham State Park and a motor vehicle stop in Douglas State Park in which tools for use in a burglary were found, the incidents and the sufficiency of the evidence supporting each conviction will be discussed seriatim.
a. Oakham incident. In connection with the Oakham incident, the defendant was charged with breaking and entering in the daytime and two counts of malicious destruction of property, the first count alleging damage to radios and the second alleging damage to doors and cabinets. At the conclusion of the trial, the judge denied the defendant’s motion for required findings of not guilty and entered findings of guilt. The two convictions for
On appeal, the defendant argues that the evidence was insufficient to show that a camcorder recovered from his home on December 13, 1999, was the same one stolen from the MDC office in Oakham (on or about December 5, 1999) and that, because the evidence was insufficient to “prove that [he] stole the camera, it . . . cannot logically follow that he was the person who broke and entered the MDC facility the weekend it was stolen.”
We address initially and resolve that part of the defendant’s argument that asserts that the evidence was insufficient to show the camcorder found at his home was the same one taken during the break-in. Steven Drawbridge, a supervisor at the MDC office in Oakham, was asked during direct examination whether he had “identified [the camcorder in the possession of the police] as your camcorder that was in that room prior to December 5?” He responded, “Yes.” Based on this testimony, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the camcorder taken from the defendant’s home was, indeed, the same camcorder that had been stolen during the break-in at Oakham. See and compare Commonwealth v. James, 424 Mass. 770, 784-785 (1997).
The question then is whether, taken as a whole, there was sufficient evidence to prove that it was the defendant who committed the breaking and entering at Oakham State Park. Of course, a critical link to the defendant’s involvement in the Oak-ham affair is his possession of the recently stolen camcorder. That possession, in turn, yields inferences recognized in law that the defendant knew the camcorder was stolen and that he was involved in the theft in which it was taken: “[T]he defendant’s mere possession of recently stolen property may be relied upon by the jury as evidence that he had stolen it.” Commonwealth v. Latney, 44 Mass. App. Ct. 423, 425 (1998).
Although the dissent seeks to exile to the back stage the defendant’s act of possessing, and his knowledge that he was possessing, a thing recently stolen from Oakham, these pivotal pieces of evidence and the inferences that flow from and the circumstantial background surrounding such possession do not stand in such solitude. Rather, the defendant’s possession of the stolen camcorder is just one part of, and intricately interwoven into, the full evidentiary setting presented at the joint trial, which included both the Oakham break-in and the evidence of the defendant’s possession of burglarious tools in connection with an attempt to break-in at the MDC field office at Douglas State Park. “[U]nexplained possession of . . . [the] property [here, the stolen camcorder] tended to implicate the defendant in the taking and ‘was competent, not [exclusively] on the ground, as the defendant supposes, of its being proof of possession of stolen property, but upon the broader and more general principle of being a material and relevant fact to the point in is
The dissent’s attempt to distinguish the Latney case and the precedents on which it relied is unavailing. Rather, in our opinion, this case, like Latney, is one in which there is a “continuous chain of circumstantial evidence strongly connecting the defendant directly to the crimes charged.” Commonwealth v. Latney, 44 Mass. App. Ct. at 426.
As we have noted, the defendant was indicted and tried jointly for two sets of crimes.
When the full trial evidence concerning both State park burglarious affairs is welded to the defendant’s possession of, and knowledge of, the stolen camcorder, there is, we conclude, sufficiently strong circumstantial evidence, with reasonable inferences, to prove that the defendant was a perpetrator of the Oakham break-in. In this evidentiary calculus, to be borne in mind is that, “[i]n reviewing the denial of a motion for a required finding of not guilty, we consider whether the evidence, in the light most favorable to the Commonwealth, is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and, whether the evidence and the inferenees permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt.” Commonwealth v. Donovan, 395 Mass. 20, 25 (1985) (quotation marks and citations omitted). Moreover, in these determinations, it is settled that “[c]onvictions may rest entirely or mainly on circumstantial evidence . . . .” Commonwealth v. Walter, 10 Mass. App. Ct. 255, 257 (1980). The motion for a required finding of not guilty on the indictment for breaking and entering the Oakham facility was properly denied.
b. Douglas State Park incident. The defendant also argues
The evidence showed that anyone entering Douglas State Park would have seen signs that indicated the park closed at 8:00 p.m. The evidence further showed that, despite this warning, the defendant and Michael Dreslinski had entered the park in a pickup truck and, by about 1:00 a.m., had parked by a fence, near the area leading to the boat ramp, in the rear of the park, and left the vehicle. Police officers checking the area looked inside the truck and saw a police duty belt, a radio, a badge, and a flashlight. They then began to search the woods in the immediate area looking for the occupants of the truck. Apparently seeing the lights from police cruisers, the defendant
When the police looked into the vehicle after stopping it, they saw several items in the truck that had not been there when they had first looked inside the vehicle. Those items included two screwdrivers, two sets of black gloves, and a black ski mask on the front seat.
In sum, the evidence was sufficient to show that Dreslinski
2. Motion to suppress. On appeal, the defendant argues that the motion judge erred in denying his pretrial motion to suppress. According to the defendant, the police did not have sufficient information to stop the vehicle in which he was traveling, to order him to exit that vehicle, or to search the vehicle. In each instance the defendant is incorrect.
a. The stop. Contrary to the defendant’s claim on appeal, the testimony at the motion hearing showed that there were signs at the gates leading to the boat ramp area, where the truck was parked, stating that the park closed at 8:00 p.m., and, in fact, the truck was parked near such a sign. Since the police observed the truck at 1 a.m., they had at a minimum a reasonable suspicion — if not probable cause — to believe that the occupants of the vehicle were trespassing on park property.
b. The exit order. As soon as the truck stopped, the police ordered the occupants out of the vehicle, pat frisked them, handcuffed them, and placed each of the two suspects in separate cruisers. Given Officer Glynn’s earlier observation of a police duty belt on the front seat of the truck, the motion judge properly could conclude that it was “reasonable for the officers to be fearful that a gun was somehow associated with [that] belt,” and that, therefore, the police were “justified in ordering the [suspects] to exit their vehicle” so that they could conduct a search based on their safety concerns.
c. The search. Finally, the defendant argues, somewhat confusingly, that the search of the truck was improper because it was conducted without probable cause. Because, as the motion judge found, the police were justified in conducting a search for safety, an examination of the interior of the vehicle for weapons was proper as part of such a search. See, e.g., Commonwealth v. Jimenez, 438 Mass. 213, 230 (2002).
When the police looked into the interior of the vehicle and discovered that the items Officer Glynn had seen in the truck earlier while it was parked, namely, the portable radio and the handcuffs, were missing, Officer Glynn, after ensuring that Miranda warnings had been given to each suspect, asked each one where the items were. Although the defendant disputes the judge’s findings as to precisely how Officer Glynn was directed
The judge found that “the defendants consented to the search by informing the police of the location of the items” and that, therefore, the “seizure of the items from the compartment was lawful.” There was no error. Because Dreslinski, after having been advised of his Miranda warnings, directed Officer Glynn to the hidden compartment on the passenger side of the vehicle, the judge’s conclusion that Dreslinski’s communication served as consent to search the compartment was proper. The defendant argues that this conclusion is flawed because consent to search was never explicitly obtained. The defendant fails to recognize, however, that Dreslinski’s consent to search may be inferred from his communication with Glynn. Whether he showed Glynn the compartment or told her about it, his conduct constituted consent because it directed her to the location under the dashboard in which the contraband was located. See Commonwealth v. Voisine, 414 Mass. 772, 783 (1993) (fact that a person communicated her consent by pointing in the direction of the bedroom where the defendant was hiding, rather than by speaking, is of no effect); Commonwealth v. Berry, 420 Mass. 95, 104 (1995) (consent may be inferred from person’s conduct). Deciding as we do, it is not necessary to discuss whether the search was justified as one incident to a valid arrest, see Commonwealth v. Blevines, 438 Mass. 604, 608 (2003), and G. L. c. 276, § 1, because the police had probable cause to arrest the
On the indictments for breaking and entering in the daytime and for possession of burglarious tools, the judgments are affirmed. On the indictment charging malicious destruction of property, to wit: radios, at Oakham on December 5, 1999, the finding of guilt is set aside and judgment is to enter for the defendant.
So ordered.
The defendant was also convicted of attempting to commit a crime and two counts of the lesser included offense of malicious destruction of property of a value of less than $250. Those convictions were placed on file. An indictment for larceny was dismissed before trial at the request of the Commonwealth.
There is no live dispute that the time lapse between the theft and possession (ten days, at most) satisfies the requirement that the property be
The evidentiary principle applied in Dellamano and Latney is long standing. See, e.g., Commonwealth v. Grace, 265 Mass. 119 (1928), in which the court stated:
“The judge instructed the jury in substance that if the personal property of one person is found in the possession of another and the latter offers = no explanation as to his possession thereof, there is a presumption that he stole it, but that the presumption is one of fact and not of law. This instruction was correct. It is settled that the possession of stolen property by one soon after the theft, if no explanation or an unsatisfactory account of it is given, is presumptive evidence of guilt.”
Id. at 123-124, citing Commonwealth v. McGorty, 114 Mass. 299 (1873); Commonwealth v. Deegan, 138 Mass. 182 (1884); Commonwealth v. Williams, 161 Mass. 442 (1894); Commonwealth v. Taylor, 210 Mass. 443 (1912). The dissent seeks to submerge these long established principles under what the dissent describes as the piling of inferences upon inferences. Here, if there be any pilings, they are embedded in firm legal ground and solidly constructed, as noted in Dellamano, from “the circumstances as a whole” and, as so massed, provide a sufficiently strong evidentiary structure to withstand a motian for a required finding of not guilty.
These six indictments were returned on the same day, under the same docket number.
As previously noted, the convictions for malicious destruction of property were placed on file. Generally, such convictions are not before us for review on appeal. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). We note that the elements of malicious destruction differ significantly from those for breaking and entering. See generally Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 3-8 (2001). Hence, while the defendant’s possession of the stolen camcorder, with other circumstantial evidence, is sufficient to establish the elements of breaking and entry as to Oakham, that does not resolve, and is not outcome determinative with respect to, the malicious destruction offenses at Oakham. Contrast Commonwealth v. Doe, 8 Mass. App. Ct. 297, 298 n.l (1979) (issues largely common to all the indictments). Therefore, we do not consider whether the evidence was sufficient to support a conviction on indictment number 00-0367-3, for malicious destruction of property, to wit: doors and cabinets.
However, on indictment number 00-0367-2, for malicious destruction of radios at Oakham, absolutely no evidence of damaged radios from the Oakham site was introduced at trial. Although, “[o]rdinarily, we do not consider appeals from indictments placed on file, . . . in the interest of efficiency and in a suitable case we may choose to do so. See Commonwealth v. Bianco, 388
The defendant also requests that we order the Superior Court docket to be corrected to reflect that on indictment number 00-0367-3, for malicious destruction of property, to wit: doors and cabinets, the defendant was convicted of the lesser included offense of damage to property of a value of less than $250. The defendant’s request to correct the docket and other records on this offense may be made in the Superior Court.
In addition, the police, unable to locate the items they had seen upon their first inspection of the truck, spoke to the suspects and, as a result of that conversation, discovered a small compartment in the vehicle; in the compartment were a radio, with its identifying marks obscured by scratches, and handcuffs and a badge.
Following questioning of Dreslinski at the police station, the police returned to the park and found a prybar under a rock in the beach area.
When the defendant was arrested, he was charged with, among other crimes, trespassing and impersonating a police officer. See G. L. c. 21, § 6C.
Although the information pertaining to the owner’s criminal record turned out later to be incorrect in part, the police at the scene were warranted in acting on the information provided to them at the time by their department. See Commonwealth v. Fuller, 30 Mass. App. Ct. 927, 929 (1991).
The judge also based his conclusion in part on his finding that the occupants of the truck “did not respond immediately to Officer Glynn when she illuminated their truck with the spotlight from her cruiser as they drove away from the park.”
The judge found that Dreslinski “showed the officer a hidden compartment on the passenger side of the truck . . . .” Glynn’s testimony suggested that Dreslinski merely told her where the compartment was, rather than showing it to her. The difference is immaterial, as the result under either scenario supports the inference that Dreslinski consented to the search. See discussion infra.
The evidence that the radio was marked “Erving State Forest” was not presented at trial.
Dissenting Opinion
(dissenting in part, with whom Mason, J., joins). Although I agree that the evidence at trial was sufficient to show that the camcorder found in the defendant’s possession was the camcorder taken from the Metropolitan District Commission building in Oakham State Park, and although possession of recently stolen property can be relied on as evidence that the possessor stole the property, see Commonwealth v. Grace, 265 Mass. 119, 124 (1928); Commonwealth v. Latney, 44 Mass. App. Ct. 423, 425 (1998), here the lack of any other evidence linking the defendant to the Oakham site renders that inference insufficient under the Latimore standard to establish beyond a reasonable doubt that the defendant was guilty of the breaking and entering of that building. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). For the same reason, the evidence is insufficient to establish guilt on the two indictments charging malicious destruction of property at that site.
In Commonwealth v. Latney, 44 Mass. App. Ct. at 425, other evidence in addition to the possession of stolen property (the defendant was captured near the burgled house, the stolen beer
Although the two indictments for malicious destruction of property were placed on file and ordinarily would not be considered on appeal, the error complained of here affects these charges. I would, therefore, set aside the guilty findings and enter judgment for the defendant on both indictments for malicious destruction of property as well as on the indictment for breaking and entering. I agree with the majority that on the indictment charging maliclous destruction of radios at the Oakham facility the guilty finding should be set aside and judgment entered for the defendant because no evidence of damaged radios was presented at trial, i.e., no evidence at all was presented at trial on that charge.
The supervisor at the Oakham facility testified that the “door [to that building], the area around the doorknob and where the locking device was damaged. It looked like — I couldn’t tell if it was an axe or a hammer, some object like that. . . was used to smash at it until the door eventually opened.” When stopped in the State park in Douglas, the defendant and Dreslinski were
