Massachusetts Appeals Court Affirms Conviction Related to Attempted Break In of Fall River Convenience Store

A divided panel of the Massachusetts Appeals Court today upheld a man’s conviction for possessing a burglarious instrument near a convenience store that had recently been the target of an attempted break in.  The name of the case is Commonwealth v. Rivera

In the middle of the night on March 27, 2014, an off-duty cop heard a banging sound coming from outside of his Fall River home.  He looked outside and saw two men wearing dark clothing using what appeared to be a crow bar or a pipe to try to break through the door of a convenience store across the street.  No other description of the men, such as their race or age, was provided.  The off-duty cop called the Fall River Police Department to report what he had witnessed.  An officer responded to the convenience store and saw damage to the front door.  A second officer drove around the neighborhood and located the defendant and another man wearing dark clothing and walking about half a mile away from the store.  That officer heard a noise that sounded like a metal object hitting the ground.  Ten to twenty minutes had elapsed since the police were called.  The officer got out of his cruiser and talked to the defendant and his friend, who were cooperative and said they were walking to a nearby hospital.  Other officers arrived and found a screwdriver 20-30 feet away from where the defendant was standing.  The police loaded the defendant and his friend into a cruiser and drove them back to the convenience store.  The off-duty cop who had witnessed the attempted break in said the defendant and his friend were wearing the “exact same clothing” as the men who were banging on the convenience store door.  The defendant was charged with breaking and entering along with possession of a burglarious instrument.  The jury acquitted him of the B&E but convicted him of possessing the burglarious instrument.  He appealed, arguing the evidence was insufficient to support a conviction.

Two of the three Appeals Court justices concluded the evidence supported a reasonable inference that the defendant had possessed the screwdriver with the intent to break into the convenience store and steal money (or commit other crimes) therein.  The majority said the jury could have reasonably concluded the screwdriver was the tool that had been used to make puncture marks on the door and that the defendant had carried the screwdriver away from the scene and dropped it on the ground (which accounted for the sound heard by the cop who confronted the defendant and his friend).  While acknowledging the “admittedly close question” presented, the majority ruled the Commonwealth had proven the defendant’s guilt beyond a reasonable doubt.

One justice dissented, taking issue with a number of errors he said occurred at the trial.  He said it was improper for the off-duty cop to have been allowed to testify the defendant and his friend were wearing the “exact same clothing” as the perpetrators because such testimony amounted to an improper lay opinion.  It also was not proven, said the dissenting justice, that the screwdriver found near the defendant was the same tool that inflicted damage to the door (as any flat-edged tool could have been the culprit).  Viewing the evidence as a whole, the dissent argued the prosecutor had fallen short of proving the case beyond a reasonable doubt.