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SJC-12086
SJC-12087

              COMMONWEALTH vs. JOHN F. SQUIRES, THIRD.
                 COMMONWEALTH vs. STEVEN E. ANGIER.



            Norfolk.    October 5, 2016. - March 27, 2017.

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


Possession of Burglarious Instruments.    Death.   Practice,
     Criminal, Death of party.



     Complaints received and sworn to in the Dedham Division of
the District Court Department on February 4, 2013.

     The cases were tried before James H. McGuiness, Jr., J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Kathleen J. Hill for Steven E. Angier.
     Carolyn L. Hely, Assistant District Attorney (Michael P.J.
McGee, Assistant District Attorney, also present) for the
Commonwealth.
     Patrick A. Michaud for John F. Squires, III.




     1
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                    2


     HINES, J.   After a joint2 jury trial in District Court, the

defendants, John F. Squires, III, and Steven E. Angier, were

convicted of walking on a railroad track, G. L. c. 160, § 218,

and possession of burglarious instruments, G. L. c. 266, § 49.3

The complaints arose from Norwood police officers' discovery of

the defendants walking on the Massachusetts Bay Transportation

Authority (MBTA) commuter rail train tracks near the Norwood

central train station.   After the officers searched the

defendants and found tools, gloves, and two walkie-talkies tuned

to the same channel, the defendants were arrested for walking on

train tracks and possession of burglarious instruments.     Squires

moved for required findings of not guilty at the close of the

Commonwealth's case, and both defendants so moved at the close

of all evidence; the motions were denied.4   The judge sentenced

each defendant to a term of imprisonment in a house of

correction for two and one-half years and imposed on each

     2
       The defendants' motions to sever on the day of trial were
denied as untimely.
     3
       The defendants do not challenge their convictions of
walking on a railroad track. The Commonwealth dismissed one
count of conspiracy for each defendant.
     4
       Squires's docket includes entries denoting his counsel's
oral motions for required findings of not guilty at both the
close of the Commonwealth's case and at the close of all
evidence. However, there are no such entries in Angier's
docket. The transcript reflects an inaudible sidebar conference
at the close of the Commonwealth's case and that, at the close
of all evidence, Squires's counsel again moved for required
findings of not guilty, while Angier's counsel also so moved.
                                                                     3


defendant a fine of one hundred dollars.5   The defendants

separately appealed, claiming, among other things, that the

Commonwealth failed to present sufficient evidence to sustain

the convictions of possession of burglarious implements.       The

Appeals Court affirmed in separate unpublished opinions,

Commonwealth v. Squires, 89 Mass. App. Ct. 1102 (2016);

Commonwealth v. Angier, 88 Mass. App. Ct. 1117 (2015).    We

allowed the defendants' applications for further appellate

review.

     After the cases were entered in this court, but before oral

argument, Angier's counsel filed a suggestion of death and moved

to vacate his convictions.   The Commonwealth opposed the motion,

arguing that under Commonwealth v. De La Zerda, 416 Mass. 247,

250-251 (1993), the order allowing Angier's application for

further appellate review should be vacated.   Because of the

unique circumstances of this case, we address Angier's appeal on

the merits and conclude that the Commonwealth failed to present

sufficient evidence to sustain the convictions.   Therefore, we

reverse and vacate the convictions.

     Background.   Taken in the light most favorable to the

Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979), the jury could have found the following facts.     On the

     5
      Angier's sentence was ordered to be served consecutively
with the sentence he was currently serving in a house of
correction.
                                                                     4


evening of February 3, 2013, at or about 11 P.M., Norwood police

Officer Derrick Wennerstrand, who was working as a plainclothes

officer and driving an unmarked vehicle, was observing vehicle

traffic in the area of a shopping plaza.    The businesses located

in the plaza were closed.    He noticed a dark-colored sedan enter

the parking lot and its two male occupants, the defendants,

alight from the vehicle.    Officer Wennerstrand radioed for

backup as the defendants walked through an alley into a rear

parking lot.   Another officer arrived shortly thereafter, and

the officers followed the footprints the defendants left in the

fresh snow toward the MBTA commuter railroad tracks.    The

officers were able to follow the two sets of footprints through

a small wooded area that led to the train tracks.    As the

officers approached the railroad tracks about five minutes

later, they saw the defendants ahead, walking on the tracks

heading south, away from the train station.

    Officer Wennerstrand noted that there were buildings on

either side of the train tracks, but he did not observe the

defendants veer off the tracks at any time.    The defendants were

approximately seventy-five yards away from the officers before

they reversed their direction and headed back toward the

officers.   Officer Wennerstrand said, "Norwood police" and

"Stop," but the defendants kept walking toward the officers, as

if they were attempting to walk past the officers.    Officer
                                                                      5


Wennerstrand again identified himself as Norwood police, holding

up his arms, and ordered the defendants to stop; the defendants

complied with the second order.

    Officer Wennerstrand first spoke with Squires, and then

with Angier.   Squires, who was wearing black work gloves, told

Officer Wennerstrand that the men were "just out for a stroll."

Officer Wennerstrand was suspicious; it was past 11 P.M. and the

temperature was below freezing that night.     Officer Wennerstrand

searched Squires and found a walkie-talkie tuned to a particular

channel in the pocket of Squires's jacket.     Squires was placed

in restraints and ordered to sit on the ground.

    Officer Wennerstrand next addressed Angier, who was wearing

a green and black backpack.     As Angier removed the backpack and

placed it on the ground as ordered by Officer Wennerstrand, the

officer heard a metal "clang" sound.    Angier stated that he had

work tools in his backpack.     The officers searched the backpack

and discovered a blue crowbar, a large screwdriver bar, a pair

of black gloves, and a small red flashlight.    A search of

Angier's person revealed a second walkie-talkie, tuned to the

same channel as the walkie-talkie found on Squires.     Angier was

also placed in restraints.    The police subsequently searched

Squires's vehicle and discovered a third set of black gloves and

a small, yellow sledgehammer.     The officers placed both

defendants under arrest.
                                                                        6


    The defendants were transported to the Norwood police

station, where Officer Dillon Haldiman inventoried the items in

the backpack and discovered what he described as a map.       The map

depicted an "L"-shaped space with the words "Going in"

handwritten on the bottom next to an arrow pointing to markings

that could represent an entrance.    More arrows were drawn

leading to an area marked with five "X" marks.    After a jury

trial, the defendants were convicted of walking on railroad

tracks and possession of burglarious instruments.

    On further appellate review, the defendants argue that (1)

the judge erroneously denied their motions for directed verdicts

where the Commonwealth failed to present sufficient evidence

that the defendants intended to use the tools in their

possession to break into a particular "statutory place" to steal

money or other property or to commit some other crime; (2) the

judge erroneously instructed the jury on possession of

burglarious instruments, which improperly lowered the burden of

proof; and (3) the prosecutor engaged in improper vouching

during the closing argument, which created a substantial risk of

a miscarriage of justice.

    Discussion.   1.   Effect of Angier's death on the order

granting further appellate review.    As a threshold matter, we

first address the effect of Angier's death on the order granting

his application for further appellate review.    After we allowed
                                                                    7


the defendants' applications for further appellate review, but

before oral argument occurred, Angier's counsel filed a

suggestion of death for Angier.    Subsequently, Angier's counsel

filed a motion to vacate judgment and remand to the District

Court to abate the prosecution, citing Commonwealth v. Latour,

397 Mass. 1007 (1986).   The Commonwealth opposed the motion,

citing De La Zerda, 416 Mass. at 251, for the proposition that

when a defendant dies while his or her case is on collateral or

further appellate review, the order allowing the defendant's

application for further appellate review is vacated, leaving the

judgment of the Appeals Court intact.    However, because of the

unique circumstances here, we depart from De La Zerda and

address both defendants' arguments on the merits.

    In De La Zerda, 416 Mass. at 248, we noted that "[w]hen a

defendant dies while his conviction is on direct review, it is

our practice to vacate the judgment and remand the case with a

direction to dismiss the complaint or indictment, thus abating

the entire prosecution."   However, when a defendant dies after

an application for further appellate review has been granted,

but not argued, the practice has been to vacate the order

granting further appellate review, rather than abate the

proceeding.   Id. at 250-251.   The United States Supreme Court

employs a similar practice, vacating the order granting

certiorari and dismissing the petition for certiorari.    See,
                                                                     8


e.g., United States v. Mosely, 525 U.S. 120 (1998) (per curiam).

Nevertheless, in De La Zerda, we noted that another important

policy interest to consider was "the interests of justice,"

which require a different outcome here (citation omitted).     See

De La Zerda, supra at 251.

     Here, Angier and Squires were tried in a joint trial, but

filed separate appeals in the Appeals Court.   Despite their

separate appeals, Squires, pursuant to Mass. R. App. P. 16 (j),

365 Mass. 860 (1974), incorporated by reference the arguments

made by Angier, making no additional or different arguments of

his own, and requested that his appeal be joined with Angier's.6

Squires, 89 Mass. App. Ct. 1102.   Similarly, Squires

incorporated by reference Angier's arguments in his application

for further appellate review, as well as in his brief to this

court.   As a result, Angier was the only defendant to present

substantive appellate argument to this court, and thus we

address Angier's arguments on the merits despite his death.

Fairness dictates that Angier, even posthumously, should have

the same outcome as Squires, especially where the defendants'

legal arguments and factual circumstances are identical.    In

this narrow circumstance, it is in the interests of justice to



     6
       The appeals were docketed separately but referred to the
same panel for decision. Commonwealth v. Squires, 89 Mass. App.
Ct. 1102 (2016).
                                                                    9


depart from De La Zerda and address both defendants' appeals on

the merits.

    2.   Sufficiency of the evidence.   The defendants argue that

the judge erred in denying their motions for required findings

of not guilty where the Commonwealth failed to provide

sufficient evidence to sustain the convictions because it failed

to establish that (1) the defendants possessed the ordinary work

tools found in Angier's backpack with the intent to break into a

statutory place, and (2) the defendants had the intent to steal

money or other property from, or to commit some other crime in,

such statutory place.    We agree.

    We review a claim of sufficiency of the evidence under the

familiar Latimore standard, viewing the evidence in the light

most favorable to the Commonwealth and ask whether the evidence

and inferences reasonably drawn therefrom were "sufficient to

persuade a rational jury beyond a reasonable doubt of the

existence of every element of the crime charged."   Commonwealth

v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007)

and 460 Mass. 12 (2011), quoting Commonwealth v. Campbell, 378

Mass. 680, 686 (1979).    In order to sustain a conviction of

possession of burglarious instruments, the Commonwealth must

prove, beyond a reasonable doubt, that the defendants possessed

    "an engine, machine, tool or implement adapted and designed
    for cutting through, forcing or breaking open a building,
    room, vault, safe or other depository, in order to steal
                                                                     10


    therefrom money or other property, or to commit any other
    crime, knowing the same to be adapted and designed for the
    purpose aforesaid, with intent to use or employ or allow
    the same to be used or employed for such purpose."

G. L. c. 266, § 49.

    Where, as here, the tools or instruments possessed by the

defendants are not by their nature burglarious, the Commonwealth

must establish proof of the defendants' intent to use the tools

or instruments for burglarious purposes.   In Commonwealth v.

Jones, 355 Mass. 170 (1969), this court noted that although a

screwdriver and a kitchen knife were not inherently burglarious

instruments, the items could be "used for an entry to force a

sash or a door or to slip a lock."   Id. at 176.   The fact that

the instruments were found on the defendants at the scene of a

burglary was dispositive in proving the defendants' intent to

use such items for burglarious purposes.   See id. at 176-177.

In Commonwealth v. Dellinger, 10 Mass. App. Ct. 549 (1980),

S.C., 383 Mass. 780 (1981), the Appeals Court stated more

succinctly the principle as it applies to facts analogous to

this case.   "A burglarious intention can doubtless be inferred

from mere possession of tools uniquely or very highly adapted to

burglarious purposes . . . but an intention to use ordinary

tools for unlawful purposes must appear clearly from the

circumstances in which they are found."    Id. at 561.   Following

that rule, the Appeals Court concluded that the defendants'
                                                                  11


motions for direct verdicts were improperly denied where the

Commonwealth failed to present evidence that the defendants

intended to use ordinary tools found in their possession for

unlawful purposes, even where there was evidence that the

defendants were following and "casing" a United Parcel Service

truck.7   Id. at 555, 561.   The court noted that "because the

evidence did not warrant a finding that the [suspected]

hijacking was to be executed that day, the inference that those

were the tools to be used in the hijacking is much attenuated."

Id. at 561.    Therefore, even where defendants are discovered

with ordinary tools under suspicious circumstances, the

Commonwealth must offer evidence establishing something more

than mere suspicion -- proof beyond a reasonable doubt -- that

the defendants intended to use the tools for burglarious

purposes.     Compare Jones, supra, and Commonwealth v. Porter, 70

Mass. App. Ct. 901, 902 (2007) (burglarious intent where wire

cutters were found in between storm door and front door of home

and defendant was apprehended at scene of attempted burglary),

with Dellinger, supra.




     7
       Following the Appeals Court's decision in Commonwealth v.
Dellinger, 10 Mass. App. Ct. 549 (1980), this court granted the
parties' applications for further appellate review and decided
the case on a different ground, expressly declining to address
the issue of burglarious intent. See Commonwealth v. Dellinger,
383 Mass. 780, 784 (1981).
                                                                    12


    Here, the Commonwealth argues that the defendants'

burglarious intent was readily inferable from the location where

the police found the defendants, the late hour at which the

defendants were discovered, the below-freezing temperatures that

night, and the possession of the map.    We do not doubt that the

discovery of the defendants on the railroad tracks late at night

in freezing weather was suspicious conduct that warranted the

threshold inquiry by the police.    See Commonwealth v. Watson,

430 Mass. 725, 729 (2000).   But this suspicious conduct, without

more, did not prove an intent to use the tools in their

possession for a burglarious purpose.

    The discovery of the defendants walking on the railroad

tracks was not necessarily probative of an intent to use the

tools for burglarious purposes.    Although Officer Wennerstrand

testified that there were businesses and buildings on either

side of the railroad tracks, there was no evidence that the

defendants veered off of the railroad tracks to attempt to break

into any business, building, or depository.    Moreover, the fact

that the defendants parked in a shopping plaza parking lot is no

more probative of intent than their presence on the railroad

tracks.   The Commonwealth presented no evidence to prove that

the defendants intended to use the ordinary tools in their

possession to break into any such "place" as specified in § 49.

It is insufficient to merely show possession of ordinary tools
                                                                     13


in proximity to a statutory place to establish burglarious

intent.

    As to the map, the Commonwealth did not connect it to any

particular or nearby building, room, vault, safe, or other

depository, as contemplated by the statute.     See G. L. c. 266,

§ 49.     See also Commonwealth v. Hogan, 41 Mass. App. Ct. 73, 74

(1996), quoting Black's Law Dictionary (6th ed. 1990) (defining

"depository" as "[t]he place where a deposit is placed and kept

. . . where something is deposited or stored as for safekeeping

or convenience").    Although the map depicted an "L"-shaped space

with the words "Going in" handwritten on it, there was no

evidence that the defendants intended to use the map and the

tools to break into a place named in § 49 with the intent to

steal money or property therefrom or to commit some other crime.

See Hogan, supra.     To be sure, the Commonwealth does not have to

present evidence of the exact statutorily named place that the

defendants intended to "steal therefrom money or other property,

or . . . commit any other crime," G. L. c. 266, § 49, but it

must establish the defendants' intent to steal from such a place

beyond a reasonable doubt.    See Commonwealth v. Tivnon, 8 Gray

375, 380 (1857).

    To infer intent from facts that establish nothing more than

possession of the items found on the defendants would require a

level of speculation that was properly rejected by the Appeals
                                                                    14


Court in Dellinger, 10 Mass. App. Ct. at 561.     "[I]f, upon all

the evidence, the question of guilt of the defendant[s] is left

up to conjecture or surmise and has no solid foundation in

established facts, a verdict of guilty cannot stand."

Commonwealth v. Fancy, 349 Mass. 196, 200 (1965), quoting

Commonwealth v. O'Brien, 305 Mass. 393, 401 (1940).

    Conclusion.    For the reasons stated above, the Commonwealth

failed to establish proof beyond a reasonable doubt of all of

the elements of possession of burglarious instruments, and thus

the evidence was insufficient to sustain the defendants'

convictions.   See Lao, 443 Mass. at 779.   Because of our

conclusion, we need not address the defendants' other claims of

error on the merits.   With respect to the defendants'

convictions of possession of burglarious instruments, the

judgments are reversed, the verdicts are set aside, and

judgments shall be entered for the defendants.

                                    So ordered.
     GAZIANO, J. (dissenting, with whom Botsford and Lowy, JJ.,

join).   These cases turn on the question whether the defendants

possessed work tools with the intent to break into a building,

in violation of G. L. c. 266, § 49.   The court believes that the

evidence, although suspicious enough to warrant a threshold

inquiry, is insufficient to sustain a conviction for possession

of burglarious instruments.   In my view, the Commonwealth

established the defendants' intent to use these tools to break

into one of the buildings on either side of the railroad tracks.

Accordingly, I dissent.

     The facts of the case, considered in the light most

favorable to the Commonwealth, support a finding that the

defendants intended to break into a nearby building on the night

of their arrest.   The police discovered the defendants, late at

night, in the freezing cold, walking down railroad tracks that

ran between two rows of commercial buildings.   The defendants

were in possession of a long "screwdriver/pry bar" and a

crowbar, work tools suitable for breaking into a building.1   They

also carried implements that could be utilized to aid in a

burglary (a flashlight and work gloves), and walkie-talkie

radios tuned to the same channel, presumably to alert one

another of potential witnesses.   One of the defendants offered


     1
       The defendants left a sledgehammer behind in the back seat
of their vehicle.
                                                                    2


the police officers the implausible explanation that they were

"just out for a stroll."

     In most cases, evidence of an individual's intent is not

ascertainable, but must be inferred from surrounding facts and

circumstances.    Commonwealth v. Lewis, 465 Mass. 119, 125

(2013).    The fact finder in this case did not have to look very

far for evidence of the defendants' intent to break into a

building.    The police found a hand-drawn map in Angier's

backpack.2   It depicts an "L"-shaped structure with multiple

rooms, an arrow pointing to an entrance labeled "Going in," and

multiple arrows leading to an area denoted by a series of "X"

marks.    The map also includes a set of parallel lines

corresponding to the railroad tracks.

     The court concludes that the evidence was insufficient for

two reasons.    First, there was no evidence that the defendants

had veered off the railroad tracks, to the right or left, toward

any of the commercial buildings.    Second, the Commonwealth

failed to connect the map to any "particular or nearby"

building.    I disagree.

     The crime of possession of burglarious instruments is

"complete when the tools [are] procured with a design to use

them for a burglarious purpose."    Commonwealth v. Faust, 81

Mass. App. Ct. 498, 500 (2012), quoting Commonwealth v. Tivnon,

     2
         A copy of the map appears in the Appendix.
                                                                     3


8 Gray 375, 380 (1857).   Although an attempt to break into a

particular building would be evidence of the defendants' state

of mind, it is not necessary to sustain a conviction.   See

Commonwealth v. Rousseau, 61 Mass. App. Ct. 144, 150-151 (2004)

(evidence sufficient where defendants were found at 1 A.M. in

closed State park that contained at least one building, while in

possession of two screwdrivers, two sets of gloves, one ski

mask, one radio, and one flashlight, although there was no

evidence that defendants had attempted to break into any State

park building).

    I also would hold, for the reasons stated above, that the

hand-drawn map supports an inference that the defendants

intended to break into a building.   The court recognizes that

the Commonwealth is not required to prove the precise place that

the defendants intended to burglarize.   A commonsense view of

the evidence, in accordance with the Latimore standard, leads to

the conclusion that the crudely drawn map depicts a building,

and the defendants intended to enter that structure at a certain

location (i.e., the point marked "Going in") and to follow the

path designated by the arrows to the "X" marks.   See

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).      Fact

finders are not "required to divorce themselves of common sense,

but rather should apply to facts which they find proven such

reasonable inferences as are justified in light of their
                                                                 4


experience as to the natural inclinations of human beings."

(citation omitted).   Commonwealth v. Arias, 29 Mass. App. Ct.

613, 618 (1990).

    For these reasons, I respectfully dissent.
            5


Appendix.
