Commonwealth v. Rivera (Lawyers Weekly No. 11-090-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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. 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 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 […]