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16-P-331                                                Appeals Court

                COMMONWEALTH     vs.   JAVIER RIVERA.


                             No. 16-P-331.

           Bristol.       April 5, 2017. - July 17, 2017.

            Present:    Milkey, Sullivan, & Desmond, JJ.


Possession of Burglarious Instruments. Constitutional Law,
     Identification. Due Process of Law, Identification.
     Identification. Practice, Criminal, Required finding,
     Motion to suppress, Argument by prosecutor.



     Complaint received and sworn to in the Fall River Division
of the District Court Department on March 27, 2014.

     A pretrial motion to suppress evidence was heard by Kevin
J. Finnerty, J., and the case was tried before him.


     Meghan K. Oreste for the defendant.
     Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.


    SULLIVAN, J.      The defendant, Javier Rivera, appeals from

his conviction of possession of a burglarious instrument, in
                                                                      2


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 (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


     1
       The defendant was acquitted of breaking and entering in
the nighttime with the intent to commit a felony. See G. L.
c. 266, § 16.
     2
       A nearby hot dog stand remained open until the early
morning hours, but no witness testified to foot traffic on the
night in question.
     3
       There was no other description of the men's faces, skin
tone, age, race, or identifying characteristics.
                                                                     3


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


     4
       Cars were parked along the street, and his view of the men
was partially obstructed by the cars.
                                                                     4


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 (2016), quoting from

Commonwealth v. Lao, 443 Mass. 770, 779 (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 (2016), quoting from Commonwealth v. Bright, 463 Mass. 421,
                                                                     5


435 (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 (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 (2017).     The question before the jury was

whether the Commonwealth had proven 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 (1992); Commonwealth v. Warren, 475 Mass. 530, 535-536

(2016); Commonwealth v. Meneus, 476 Mass. 231, 237 (2017).


     5
       The Commonwealth must prove beyond a reasonable doubt that
the defendant (1) possessed "an engine, machine, tool or
implement"; (2) "adapted and designed for cutting through,
forcing or breaking open a building"; (3) "in order to steal
therefrom money or property, or to commit any other crime"; (4)
"knowing the same to be adapted and designed for the purpose
aforesaid"; (5) "with intent to use or employ or allow the same
to be used or employed for such purpose." G. L. c. 266, § 49;
Commonwealth v. Squires, 476 Mass. 703, 708 (2017).
     6
       It matters not which man "jimmied" the door and which man
served as lookout. See Commonwealth v. Fuentes, 45 Mass. App.
Ct. 934, 935 (1998), quoting from Commonwealth v. Ward, 45 Mass.
App. Ct. 901, 902 (1998) ("[A] person who acts as a lookout
while others are engaged in a criminal enterprise can be
convicted on a joint enterprise theory.")
                                                                    6


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.



     7
       A screwdriver may be a burglarious tool, depending on its
use, the surrounding circumstances, or both. See Commonwealth
v. Jones, 355 Mass. 170, 176-177 (1969).
                                                                      7


     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 (1981); Commonwealth v.

Mercado, 456 Mass. 198, 208 n.21 (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 (2014), quoting from Commonwealth v. Norris, 462 Mass.

131, 138-139 (2012).   Contrast Commonwealth v. Romero, 464 Mass.

648, 659 n.9 (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 (1979).    This inference, coupled with the

fact that the jury were permitted to find that the screwdriver

     8
       It is unclear how the officer could have "heard" that the
metal object was dropped, not kicked, but this went to the
weight of the evidence.
                                                                   8


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 (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 (2012),

quoting from Commonwealth v. Martin, 447 Mass. 274, 280 (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.

     9
       Whether there was a "match" was a proper subject of lay
opinion, thus permitting the jury to draw its own conclusion.
See Commonwealth v. Molina, 454 Mass. 232, 243-244 (2009). No
further foundation was required. See ibid. Here, the
prosecutor followed the procedure outlined in Molina, and did
not elicit any affirmative testimony from the officer regarding
a "match," leaving the ultimate conclusion to the jury, which
had the photographs and could make an independent assessment.
     10
       The defendant also argues that the evidence of intent to
use the screwdriver for burglarious purposes was insufficient.
The case was argued and submitted to the jury on the theory that
one of the men at the store and the defendant were one and the
same. The element of intent was established. See Squires, 476
Mass. at 710-711.
                                                                        9


       "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 (1995).     The officers

had good reason to conduct a show up 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 (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.   Furthermore,

"[t]rial counsel had the opportunity to bring out the weaknesses

of the witness's identification on cross-examination."        Powell,

supra at 26.    "Any degree of suggestiveness went to the weight

of the identification, not its admissibility."     Ibid.
                                                                     10


    3.   Closing argument.     The defendant contends that the

prosecutor referred to facts not in evidence during the closing

argument by claiming that the defendant had a crow bar, which he

disposed of when he fled the scene.     There was no objection at

trial.   We review these claims for error, and if there was

error, for a substantial risk of a miscarriage of justice.        See

Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

    There was no error in the prosecutor's reference to the

crow bar during closing arguments.    The witness testified at

trial that he saw a man "hitting the door with . . . a pipe or a

crow bar."   The prosecutor's statements were supported by the

record and he could therefore argue "the evidence and the fair

inferences which can be drawn from the evidence."     Commonwealth

v. Braley, 449 Mass. 316, 329 (2007), quoting from Commonwealth

v. Hoffer, 375 Mass. 369, 378 (1978).     That the men disposed of

the bar or crowbar was a fair inference that could be drawn from

the evidence.   See Commonwealth v DeCicco, 44 Mass. App. Ct.

111, 118-119 (1998).

    The prosecutor also argued that the men ran from the scene,

and disposed of the crow bar while they did so.    There was

evidence that the men left the scene, but no evidence that the

men ran from the scene.     It was error for the prosecutor to make

the argument to the jury.     However, there was no substantial

risk of a miscarriage of justice.    During the jury charge, the
                                                                 11


trial judge informed the jury that closing arguments were not

evidence.   Commonwealth v. Johnson, 463 Mass. 95, 114 (2012).

"These instructions, to which we presume the jury adhered, see

Commonwealth v. Amirault, [404 Mass. 221, 240 (1989)],

effectively neutralized any prejudice produced by the

prosecutor's [error]."   Johnson, supra.

                                    Judgment affirmed.
     MILKEY, J. (dissenting).    I agree with many of the majority

opinion's thoughtful conclusions, including its assessment that

whether the Commonwealth's evidence here was sufficient is a

close question.    However, in the final analysis, I disagree that

the evidence, taken together with reasonable inferences drawn

therefrom, could add up to proof of the defendant's guilt beyond

a reasonable doubt.    I therefore respectfully dissent.

     Background.    Viewed in the light most favorable to the

Commonwealth, the trial evidence was as follows.

     At approximately 1:45 in the morning, a Newport, Rhode

Island police officer who lived in Fall River, awoke to the

sound of banging.    He looked out his window to observe two men

in the process of trying to break into a convenience store

across the street from him.    One of the men was striking the

right side of the store's front door (near its latch) using a

tool that the eyewitness described as "a crow bar or pipe or

something."   The other man was acting as lookout.   The

eyewitness could not see the men's faces, and he did not

describe their physical characteristics in any material way.1      He

was able to see the men's clothing, which he described as




     1
       The eyewitness did say that one of the men was "taller"
and the other man "shorter" (something that would be true almost
by definition). There was no evidence admitted about the
defendant's height, or that of the other man charged.
                                                                    2


"dark."    He provided no further detail -- before or during the

trial -- as to what the clothing looked like.

    The eyewitness contacted the Fall River police as soon as

he began observing the incident, although the two men abandoned

their endeavor and walked away before a responding police

officer arrived at the scene.   After learning from the

eyewitness that the men were wearing dark clothing, the officer

put out a bulletin for the two men.   A different officer who had

heard the bulletin drove around the area looking for them.   Some

ten minutes after that, and within twenty minutes of the

incident, that officer spotted the defendant and another man

walking along the street about one-half mile from the

convenience store.   At that point, the men were walking toward

St. Anne's Hospital, which was approximately one hundred yards

away.

    According to the officer, as he passed them in his cruiser,

he "heard somebody drop some kind of a metallic object, like a

hard object fell to the ground."   This prompted him to stop the

men for further inquiry.   The men told the police officer that

they were on their way to the hospital.   A subsequent search of

the area turned up a screwdriver in the location where the

defendant and his companion had been walking when the officer

heard the sound.   A six-inch flashlight was found on one of the

two men.
                                                                     3


     The police then brought the men back to the scene of the

incident for a showup identification procedure.   The eyewitness

was placed in the rear of the cruiser, and the two men, in

handcuffs, were shown to him illuminated by spotlight.2    Because

of the limited nature of what he was able to observe during the

incident, the eyewitness addressed only the similarity of the

suspects' clothing to that of the men he previously had

observed.   Specifically, he testified at trial that "I told [the

police] that the individuals that they had brought out were the

individuals that were -- were wearing the exact same clothing as

the individuals out front of the business."   Over the

defendant's objection, a police officer was asked about what the

eyewitness said at the showup, and he testified that the

eyewitness said, "that's definitely the -- the clothing that the

suspects were wearing."

     Just as the eyewitness provided no information about the

clothing worn by the two men he had observed during the incident

(other than it was "dark"), he provided no description of what

the two suspects shown to him were wearing.   Nor did he offer

any explanation about how he discerned that this was "the exact


     2
       At the motion to suppress hearing, a police officer
described the manner in which the defendant was shown to the
eyewitness as follows: "I illuminated him with the take down
lights and the spotlight on my cruiser." The fact that the
defendant was handcuffed during the showup procedure came out
only at trial.
                                                                      4


same clothing as" those he had observed earlier.     The officer

who had initiated contact with the defendant provided a general

description of what the two suspects were wearing, stating "that

they had like, you know, like hooded sweatshirts on and jackets"

that "were dark colors, if they were black or navy blue, I'm not

certain."   In his summation, the prosecutor characterized the

eyewitness's testimony as stating that the defendant and his

companion's clothing "exactly matched" the clothing that the

eyewitness had seen during the incident.

    An officer described damage that he observed to the front

door of the convenience store.    This included a softball-sized

hole that had been created near the handle to the door (the area

where the eyewitness had seen the men "working" the door).

There were also some stray marks that could be seen elsewhere on

the door.   The jury were shown two close-up photographs of some

of the damage.     Visible in these photographs is a portion of the

screwdriver found near the suspects (the head of the screwdriver

and some of its shaft), which the police had placed so that the

screwdriver's tip could be compared to two of the marks on the

door (as will be discussed in detail below).     Based on what is

shown in the photographs, the prosecutor argued in his summation

that the screwdriver "matches perfectly with those pry marks

[o]n that door."
                                                                       5


    Discussion.     The conviction here was for possession of a

burglarious tool.    "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."

Commonwealth v. Squires, 476 Mass. 703, 708 (2017).    Here, the

Commonwealth sought to prove such intent through demonstrating

that the defendant and his companion were the same two men who

had attempted to break into the convenience store earlier that

night.   As confirmed by the prosecutor's closing argument, the

prime evidence on which the Commonwealth relied to link the

defendant to the crime scene was that the suspects' clothing

"exactly matched" the clothing that the eyewitness had seen

during the attempted break in, and that the screwdriver found

near the defendant "matches perfectly with" the damage to the

door of the store.    For the reasons that follow, the seeming

certitude offered by claims of such "matches" wilts under

scrutiny.   Before turning to whether the inculpatory evidence,

as a whole, could support a guilty verdict beyond a reasonable

doubt, I address the key individual pieces of such evidence.

    1.   Evidence linking the defendant to the crime scene.       a.

Proximity of place and time.    For reasons that the majority

opinion well explains, the fact that, ten to twenty minutes

after the incident at the convenience store, the defendant and
                                                                     6


another were spotted walking along a street one-half mile away

is of negligible evidentiary moment.    See Commonwealth v.

Warren, 475 Mass. 530, 536-538 (2016); Commonwealth v. Meneus,

476 Mass. 231, 237 (2017).   I add only one point.   The fact that

when the defendant and his companion were stopped, the two men

were observed walking toward St. Anne's Hospital, which was a

short distance away, is something that can be considered in

assessing the sufficiency of the evidence.    See Commonwealth v.

Oyewole, 470 Mass. 1015, 1017 (2014) (in assessing the

sufficiency of the evidence, reviewing courts can take into

account uncontested evidence that cuts against a defendant's

guilt).3

     b.    Similarity of clothing.   The defendant maintains that

the eyewitness's statement about the clothing he and his

companion were wearing should have been excluded because it was

the product of an overly suggestive identification procedure.

Although the procedure used here does give me some pause (a

showup during which the men were presented to the eyewitness

wearing handcuffs and put under a spotlight), I agree with the

majority that the use of such a procedure passes muster under


     3
       The issue in Oyewole had to do with the sufficiency of the
proof that that defendant had been notified that his driver's
license had been suspended. In concluding that the evidence of
this was insufficient, the court found it significant that the
defendant was in possession of his license when police stopped
him.
                                                                   7


existing case law.   See Commonwealth v. Crayton, 470 Mass 228,

236 (2014); Commonwealth v. Amaral, 81 Mass. App. Ct. 143, 148

(2012).

     In my view, there are two more fundamental problems with

the eyewitness's testimony.   First, his stated conclusion that

the clothing was "exactly the same" amounts to an improper lay

opinion.   See Commonwealth v. Molina, 454 Mass. 232, 243 (2009)

("Lay witnesses are allowed to testify only to facts that they

observed and may not give an opinion on those facts").   Second,

the eyewitness was allowed to opine that the men were wearing

"the exact same clothing" even though an evidentiary foundation

for such an opinion was never supplied.4   As a result, the jury

heard facially powerful identification evidence without their

being given any means of evaluating the witness's basis for

drawing his conclusion.5


     4
       The eyewitness had surveillance cameras installed at his
home, and a video showing the two men attempting to break into
the store was shown to the jury. No useful information about
what the men or their clothing looked like can be gleaned from
the video. Accordingly, the video, at a minimum, provides no
affirmative support for the eyewitness's ability to make
detailed observations about the clothing the men were wearing.
     5
       The problem was compounded by the manner in which the
prosecutor previewed the evidence in his opening statement.
Without objection, he used the misleading shorthand that the
eyewitness was "able to identify these two individuals by their
clothing that they were wearing." The prosecutor made that
statement even though -- relying on Crayton, supra -- the judge
had ruled on a pretrial motion to suppress that the eyewitness
"was unable to identify [the defendant] the night of the
                                                                    8


     Of course, even if such testimony should have been

excluded, we are to consider it when assessing the sufficiency

of the evidence "without regard to the propriety of [its]

admission."   Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014),

quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87,

98 (2010).    However, this does not mean that the competency of

such evidence is beside the point.    As we recently said, "any

unobjected-to statement admitted at trial is only worth what it

is worth."    Commonwealth v. Drapaniotis, 89 Mass. App. Ct. 267,

274 (2016) (unobjected-to hearsay testimony that gun salesman

had represented a firearm worked held insufficient to prove its

operability).6



incident and he would not be permitted to identify the
[d]efendant at trial." In any event, there is a subtle but
important distinction between a witness's, on one hand,
commenting on the similarity of a defendant's clothing to that
of a perpetrator, and, on the other, "identifying a defendant"
by his clothing. As the case before us illustrates, although
the case law draws a doctrinal distinction between
identifications of people and identifications of inanimate
objects, see Commonwealth v. Thomas, 476 Mass. 451, 464-468
(2017), and cases cited, the boundary between those types of
identifications can be quite blurred in practice.
     6
       It often has been said that "it is for the jury to
determine what weight to give" particular evidence."
Commonwealth v. Moquette, 439 Mass. 697, 703 (2003). However,
that truism does not mean that appellate judges are required to
blind ourselves to profound deficiencies in the admitted
evidence when we carry out our role of reviewing what reasonable
inferences rational jurors could draw from that evidence, and
whether such inferences are enough to support a verdict of
guilty beyond a reasonable doubt. Thus, the presence of some
evidence supporting a defendant's guilt does not end the
                                                                   9


    The principal inference that the jury could draw from the

testimony about the clothing was that the suspects brought

before the eyewitness and the men he had observed earlier were

wearing dark hooded sweatshirts and jackets.   By itself, this

provided negligible import.    See Commonwealth v. Cheek, 413

Mass. 492, 496 (1992) (statement that perpetrator, like

defendant, was wearing three-quarter length black down goose

jacket did not supply police even with reasonable suspicion to

make investigative stop, absent evidence that jacket was unusual

or distinctive).   Cf. Commonwealth v. Bresilla, 470 Mass. 422,

425, 429-431 (2015) (rejecting challenge to showup procedures

through which numerous eyewitnesses identified distinctive

"light brown leather jacket with fur collar and fur cuffs" as

jacket shooter was wearing).   The additional information the

jury were told -- that the eyewitness had concluded that the two

sets of clothing looked identical for reasons he never explained

-- added incremental value at best.




sufficiency analysis. Rather, as the Supreme Judicial Court has
recently reaffirmed, "[m]ore than slight evidence must support
each essential element, and 'a conviction may not rest upon the
piling of inference upon inference or conjecture and
speculation.'" Commonwealth v. Grassie, 476 Mass. 202, 207
(2017), quoting from Commonwealth v. Reaves, 434 Mass. 383, 390
(2001). See Sepheus, supra at 167-168 (appellate court
conducting sufficiency analysis examining force of inferences
that can be drawn from admitted evidence and absence of
evidence).
                                                                   10


     c.   Evidence linking the screwdriver found near where the

defendant was walking to the crime scene.   The eyewitness never

stated that the two men at the convenience store were using, or

otherwise possessed a screwdriver.   In fact, his description of

the tool that he observed them using suggests that it was not a

screwdriver.7   Nevertheless, the Commonwealth suggested it had

conclusive forensic proof to match the screwdriver to the damage

caused at crime scene.   Like the proof that the clothing

provided an exact match, the evidence linking the screwdriver to

the crime scene amounts to far less than first appears.

     The screwdriver itself was not introduced in evidence,

although, as noted, a small portion of it is shown in the two

photographs that were taken of some of the damage to the front

door of the convenience store.   From all that is shown in these

photographs, it appears to be an ordinary flat-head screwdriver.

Nothing in the photographs, or the trial testimony, indicates

that it has any distinctive features.8



     7
       Strictly speaking, the phrase "a crow bar or pipe or
something" is broad enough to encompass a screwdriver. Notably,
the Commonwealth never took the position that the tool that the
eyewitness observed was the screwdriver later found. To the
contrary, the prosecutor argued that the men had both a crow bar
and the screwdriver, and that they must have discarded the crow
bar before they were stopped by the police.
     8
       One witness made a single, passing reference to it as "a
long screwdriver." No scale is indicated in the close-up
photographs that show parts of the door and screwdriver.
                                                                    11


     One of the two photographs shows a small lateral gash in

the metal covering of the door.   A rational juror could have

concluded that the gash to the metal was a pry mark that someone

had caused using an implement such as a pry bar, a chisel, or,

indeed, a screwdriver.   In that photograph, the screwdriver

found near where the defendant was walking is being held up to

the surface of the door, with its tip inserted into the gash.

The tip appears to fit snugly there, and it is based presumably

on that happenstance that the prosecutor argued to the jury that

the screwdriver "matches perfectly with those pry marks [o]n

that door."9   For the reasons set forth below, the exactitude

claimed by the prosecutor is unsupported by the evidence.    Yet,

the "superficial plausibility of the prosecutor's argument

[linking the defendant to the crime] masked its profound flaws."

Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011), quoting




     9
       No witness testified to the match; it was solely the
prosecutor who spoke to the issue in his closing. As a result,
the defendant had no opportunity to challenge the foundation for
the assertion that the screwdriver "perfectly matched" some of
the damage to the door, or to test that assertion through cross-
examination. Cf. Commonwealth v. Ferreira, 460 Mass. 781, 786-
787 (2011) (finding error in prosecutor's raising probability
argument related to witness identification in his closing
argument, in part based on need to have such claim established
through witness testimony). Indeed, given that, by
Massachusetts tradition, the prosecutor's closing went last, the
defendant did not even have an opportunity to respond to the
"perfectly matches" claim in his own closing argument.
                                                                  12


from Commonwealth v. Ferreira, 77 Mass. App. Ct. 675, 685 n.6

(2010) (Milkey, J. dissenting).10

     The screwdriver, like other ordinary flat-head

screwdrivers, has a tapered head, with the narrowest point being

the very end (that is, where the tip is designed to meet a

screw).   As a matter of simple geometry, so long as their tips

were not wider than the gash, screwdrivers of various sizes

readily could appear to fit snugly into the gash (and thus seem

to "match[] perfectly").   Thus, all that the staged photo of the

screwdriver inserted into the gash really shows is that the



     10
       The Supreme Judicial Court on many occasions has
recognized the power of claims that evidence linked to a
defendant "matches" evidence of the crime, and it has taken
appropriate steps to limit how such claims are presented to a
jury. Thus, for example, a ballistics expert may express his
opinion that a bullet was fired by a particular gun "to a
reasonable degree of ballistics certainty" if the expert is able
to "identif[y] sufficient individual characteristic toolmarks"
supporting such a match, but the expert may not use phrasing
that connotes a higher degree of certitude. Commonwealth v.
Pytou Heang, 458 Mass. 827, 848-849 (2011). See generally Mass.
G. Evid. § 702 note, at 153 (2017) (reviewing case law regarding
expert opinions that are "empirically based but subjective in
nature"). Where statistical analysis is available to set forth
the significance of a purported match, that analysis must
accompany the opinion. See Commonwealth v. Mattei, 455 Mass.
840, 850 (2010), quoting from Commonwealth v. Curnin, 409 Mass.
218, 222 n.7 (1991) ("[I]n a criminal trial we will 'not permit
the admission of test results showing a DNA match [a positive
result] without telling the jury anything about the likelihood
of that match occurring'"). As has been explained, "[e]vidence
of a match based on correctly used testing systems is of little
or no value without reliable evidence indicating the
significance of the match." Commonwealth v. Rosier, 425 Mass.
807, 813 (1997).
                                                                     13


screwdriver could not be ruled out as a potential source of that

damage.

     The other photo reinforces this point.     That photo plainly

shows that the end of the tip of the screwdriver is appreciably

smaller than the lateral indentation that appears there (which

was in what appears to be a wooden portion of the door or door

frame).   It is, of course, still entirely possible that the

screwdriver was used to make that mark, even though it could not

fairly be characterized as a "perfect match."    Taken together,

the two photos demonstrate that the existence of a perfect match

between the implement and the damage it allegedly caused is

neither necessary nor sufficient to prove that it caused such

damage.

     In addition, there was no testimony from the proprietor of

the store or anyone else as to when the gash was made.    Nor is

there anything in the photographs that suggests that this damage

was fresh.   The absence of any evidence regarding the state of

the door prior to the incident, at a minimum, substantially

reduces any inculpatory value provided by the evidence linking

the screwdriver to the crime scene.11   See Commonwealth v.


     11
       To address that point at trial, the prosecutor argued
that the jury could conclude that the damage to the door must
have just occurred because no reasonable store proprietor would
leave such damage unaddressed. That argument has a great deal
of force with regard to the softball-size hole in the door by
its handle, the very area where the eyewitness observed one of
                                                                   14


Renaud, 81 Mass. App. Ct. 261, 264 (2012) (presence of

defendant's electronic banking card at crime scene "cannot allow

a factfinder to conclude beyond a reasonable doubt that the

owner of that card was in possession of it during the commission

of a crime").   Cf. Commonwealth v. French, 476 Mass. 1023, 1024

(2017), quoting from Commonwealth v. Fazzino, 27 Mass. App. Ct.

485, 487 (1989) (evidence held insufficient where defendant's

fingerprint found near window at scene of break-in was only

evidence linking him to crime, and there was no proof "which

reasonably excludes the hypothesis that the fingerprint[] w[as]

impressed at a time other than when the crime was being

committed").

    2.   Evidence that the defendant possessed and sought to

discard a screwdriver.   As noted, the officer who spotted the

defendant and his companion walking toward St. Anne's Hospital

testified that he "heard somebody drop some kind of a metallic

object, like a hard object fell on the ground."   The officer had

not seen the men carrying anything before this, and it is, of

course, impossible for one -- by ears alone -- to "hear[]




the men repeatedly striking the door. It has minimal, if any,
force with regard to the small gash in the metal covering to the
door that was found in a different location (near the bottom
corner of the door). Moreover, the chance that the gash there
was made at a different time is strengthened by testimony from
the eyewitness that he frequently had to call the local police
to respond to all the crime he observed outside his window.
                                                                   15


somebody drop" something.12   Nor did the officer explain why he

believed the men must have "drop[ped] some kind of metallic

object," as opposed, say, to having kicked it.   Nevertheless,

because we are bound in this context to view the evidence in the

light most favorable to the Commonwealth, I accept that rational

jurors could have inferred that the sound the officer heard was

that of the men dropping the screwdriver found at the spot where

they had been walking.

     I further accept that the dropping of the screwdriver could

be taken as some evidence of consciousness of guilt, that is,

that the defendant and his companion had possessed the

screwdriver with a nefarious intent.    At the same time, the

force of such an inference is hardly as compelling as the

majority opinion suggests, especially when it is stripped of the

untenable claim that the screwdriver matches perfectly with the

crime scene.   The tenuousness of any claim of consciousness of

guilt is illustrated by viewing such an argument in its full

context.   Under the Commonwealth's theory of the case, the men

had both a crow bar and a screwdriver at the store, and they

discarded the crow bar once they left the scene in order to hide

evidence linking them to the crime.    Then, having initially

decided to retain possession of the screwdriver, the men

     12
       The lack of an objection to such testimony does not
require us to accept it at face value. See Drapaniotis, 89
Mass. App. Ct. at 274.
                                                                  16


realized their error in doing so at the very instant that the

officer drove by them.   As a result, they at that moment

discarded the screwdriver in a manner that the officer could

hear from inside his car.

    Without any significant evidence linking the defendant or

the screwdriver to the crime scene, the question then is whether

the mere discarding of the screwdriver was enough to establish

the defendant's intent to use it, an ordinary household item,

for burglarious purposes.   In my view, relying on the discarding

of the screwdriver to demonstrate such intent comes at least

close to violating the principle that juries may not convict a

defendant based on consciousness of guilt alone.    See

Commonwealth v. Toney, 385 Mass. 575, 585 (1982).

    3.   Evidence as a whole.   Of course, a reviewing court in

the end must consider the totality of incriminatory evidence

taken together, not view individual pieces in isolation.    "As

Justice Holmes observed long ago, '[e]vidence which would be

colorless if it stood alone may get a new complexion from other

facts which are proved, and in turn may corroborate the

conclusion which would be drawn from the other facts.'"

Commonwealth v. Norman, 87 Mass. App. Ct. 344, 347 (2015),

quoting from Commonwealth v. Mulrey, 170 Mass. 103, 110 (1898).

    Here, the jury heard evidence that:   a) the defendant and

another man were found walking one-half mile from the site where
                                                                      17


two men had been observed ten or twenty minutes earlier pounding

the door of a store with "a crow bar or pipe or something," b)

the sets of men wore dark hooded sweatshirts and jackets that an

eyewitness opined -- without explanation -- was the "exact same

clothing," c) the two suspects dropped a screwdriver as they

were passed by a police officer and were then found in

possession of a flashlight, and d) the screwdriver that the men

dropped could not be ruled out as the source of certain marks on

the door that may or may not have been made that night.   Taking

this evidence as a whole, I agree that a rational juror could

conclude that the defendant and his companion likely were the

same two men that the eyewitness had observed at the scene, and

therefore that the defendant likely had been in possession of a

tool that he intended to use for burglarious purposes.

    However, the real question we face is whether a rational

juror could take such evidence as proof of the defendant's guilt

beyond a reasonable doubt, that is, proof that supplied "an

abiding conviction, to a moral certainty, of the truth of the

charge."   Commonwealth v. Webster, 5 Cush. 295, 320 (1850).     In

my view, given how thin the Commonwealth's proof actually was,

the answer to that question is "no."   The Commonwealth's case

ultimately rests on only "slight evidence" and "upon the piling

of inference upon inference or conjecture and speculation."    See
                                                               18


Commonwealth v. Grassie, 476 Mass. 202, 207 (2017), quoting from

Commonwealth v. Reaves, 434 Mass. 383, 390 (2001).
