Opinion
14-P-1924
12-14-2015
COMMONWEALTH v. STEVEN E. ANGIER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Steven E. Angier, was convicted of possession of burglarious instruments. The defendant appeals, claiming (1) the evidence of possession of burglarious tools was insufficient, (2) the jury instructions on possession of burglarious tools lowered the Commonwealth's burden of proof, and (3) the prosecutor improperly vouched for police witnesses in its closing argument. We affirm.
The defendant was also convicted of walking on a railroad track. He makes no challenge on appeal to this conviction.
1. Sufficiency of the evidence. We review the evidence to determine whether, in the light most favorable to the Commonwealth, it was sufficient to satisfy a rational trier of fact of each element of the crime, beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass, 671, 676-677 (1979). The jury could have found the following facts. On Sunday, February 3, 2013, at approximately 11:00 P.M., Norwood police Officer Derrick Wennerstrand was on routine patrol when he saw a dark-colored sedan back into a parking spot at the Rama Center Plaza. He watched as two men got out of the sedan and walked towards the far back end of the parking lot, entering an alleyway between two buildings. The men were later identified as the defendant and John Squires. Wennerstrand radioed for back-up, and was soon joined by a second officer. The officers followed footprints to Massachusetts Bay Transportation Authority (MBTA) commuter rail tracks, where they located the two men. Wennerstrand testified that when the two men noticed that the officers "were behind them," the men "decided to stop and reverse direction and walk towards us." Wennerstrand identified himself as a police officer and ordered the men to stop. When asked where the men were coming from, Squires pointed south, toward the MBTA tracks. When asked again, Squires said they were "just out for a stroll."
Light snow was on the ground. The temperature was below freezing.
Wennerstrand searched Squires and found a "walkie-talkie" in his jacket pocket. Squires was wearing Gorilla Grip brand gloves. After being directed to do so, the defendant removed his backpack and placed it on the ground; when he did, the officers heard a "metal clang sound." When asked, the defendant said he had some tools in the backpack that he used for work. Wennerstrand found a blue crowbar, a large screwdriver, a pair of black gloves, and a small flashlight. The defendant also had a walkie-talkie on his person identical to the one found on Squires. Both walkie-talkies were on and tuned to the same channel. After the defendant's arrest, Wennerstrand observed a set of black gloves and a sledge hammer in the back seat of the sedan. An inventory of the defendant's backpack at the police station yielded a hand-drawn map depicting "X" marks, arrow marks, and the handwritten notation "going in."
The tools the defendant possessed, and the circumstances in which he possessed them, were sufficient to establish his intent to use them to break into a building, room, vault, safe, or other depository, as well as his specific intent to steal from or to commit any other crime in such a place. See G. L. c. 266, § 49. Ordinary work tools may be burglarious when a defendant intends them for such a purpose. Commonwealth v. Jones, 355 Mass. 170, 176-177 (1969). Moreover, the intent or the state of mind of the defendant may be inferred from the circumstances. Commonwealth v. Lewis, 465 Mass. 119, 125 (2013). Taken in its totality, the evidence was sufficient to prove the defendant possessed burglarious tools.
2. Jury instructions. The defendant contends it was error for the judge to fail to instruct the jury as to the type of building or depository he intended to target. The defendant's written request for jury instructions included simply: "[i]nstructions on the elements of G. L. c. 266, § 49B, 'The Possession of Burglarious Instruments.'" He did not, however, specify what those instructions should be. Moreover, he did not object after the jury were charged.
The judge instructed the jury on possession of burglarious tools conformably with the District Court model jury instructions, including all five elements of the crime as enunciated in Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 5-6 (2001). The judge also properly instructed the jury regarding inferences and circumstantial evidence. See Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002). Finally, the judge was not required to identify the particular depository in which the defendant would have used the burglarious tools. See Commonwealth v. Faust, 81 Mass. App. Ct. 498, 500-501 (2012), citing Commonwealth v. Tivnon, 8 Gray 375, 380 (1857). The testimony was uncontroverted that the Rama Center Plaza is a shopping center, and that office buildings were nearby the location where the defendant was ultimately arrested. The jury instructions were proper and did not lower the Commonwealth's burden of proof.
See Criminal Model Jury Instructions for Use in the District Court § 8.180 (2009).
3. Prosecutor's closing argument. The defendant complains that the prosecutor improperly vouched for the police witnesses when he argued that the defendant's testimony was not true. No objection was made at trial; we therefore review any error for a substantial risk of a miscarriage of justice. Commonwealth v. Alphonse, 87 Mass. App. Ct. 336, 338 (2015). Using phrases like "I suggest," the prosecutor stated reasons why the defendant's testimony should not be believed. This is appropriate and does not constitute improper vouching. Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 568 (2010). See Mass. G. Evid. § 1113(b)(3)(B) & note (2015). Moreover, the comments were made in direct response to defense counsel's repeated use of the word "innocent" in his closing argument. There was no error, and therefore no substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 14, 2015.