Commonwealth v. Langley (Lawyers Weekly No. 09-029-18)

Criminal No. 17-64
Defendant Corey Langley is charged with two counts of possession of a substance, material, article, explosive, or ingredient which could be used to make a destructive or incendiary device or substance in violation of G.L. c. 266, § 102(a)(i) (Counts 001 and 002), and two counts of secreting, throwing, launching, or otherwise placing an explosive or incendiary device in violation of G.L. c. 266, § 102A (Counts 003 and 004). Defendant moves to dismiss under Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), arguing the grand jury heard insufficient evidence to support the indictments. After hearing,1 for the following reasons, the motion is ALLOWED.
The grand jury heard the following evidence:
On January 13, 2017, Holbrook Police Department Detective Scott Glover received a call to the effect that two possible explosive devices were located at 44 Poole Circle in Holbrook (“the Property”). When Det. Glover responded to the scene, he observed in the Property’s
1 At the hearing on December 19, 2017, I allowed the Commonwealth’s request for a significant amount of time (until February 27, 2018) to file a written opposition. Despite the accommodation, the Commonwealth has not filed an opposition.
backyard near the gate (i) a white bleach bottle with a hole cut into the cap and a pair of underwear on or near the bottle, and (ii) a Crisco bottle filled with nails and batteries, which had a hole cut in its top and a wick coming out of the hole. Det. Glover contacted the State Police Bomb Squad.
James Morgan, the owner of the Property, told Det. Glover that after midnight on the previous night, he had heard a loud noise in the woods, like something running away, but he did not see anything. Mr. Morgan reported that the next morning, he observed a bleach bottle in the backyard and a Crisco oil bottle and a burned pair of underwear in the wooded area outside the backyard gate to the Property. Mr. Morgan also said that he noticed that the gate had been sprayed with a liquid.
The State Police responded to the scene, photographed the evidence, and made sure it was safe to remove the two bottles from the area.
Mr. Morgan told Det. Glover that a number of teenagers were staying in a house on the other side of the wooded area behind the Property, including possibly the defendant; and they were the only people Mr. Morgan believed may have put the objects in his yard.
Another Holbrook police officer, Officer Sterling, walked back behind the Property until he reached the house Mr. Morgan described. There, he found gas cans in the backyard of the house2 and a wallet with defendant’s identification in it. Off. Sterling spoke with defendant’s mother, who said defendant had been out the previous night, returning home after 1:45 a.m.
The Holbrook police questioned defendant at the police station. Defendant admitted he made the bleach and Crisco oil “devices,” but said he had not planned on hurting anyone with them. He said he intended the bleach container to look like a Molotov cocktail, wanted to use it
2 The grand jury was not told whether there was anything in the gas cans.
to make a “big boom” in his backyard, and threw it into the backyard of the Property when he got scared. Defendant explained that he wanted to bury the Crisco oil bottle in the snow to “see how it exploded.”
Massachusetts State Police Trooper Eric Desrochers also spoke with defendant. Defendant told him that he threw the bleach bottle over the fence into the Property’s backyard and left the Crisco bottle against the Property’s back gate. Defendant said he knew that the bleach was not flammable, but acted like it was a Molotov cocktail and threw it into the yard. He told Tpr. Desrochers that he did not light the wick; however, the trooper testified that the wick, which was a pair of girl’s underwear and was found next to the bleach bottle,3 had singes on it. Regarding the liquid on the gate, defendant told Tpr. Desrochers that he had poured the contents of a bleach bottle along the fence. Tpr. Desrochers testified he saw the Crisco oil bottle, with the wick still in it, outside of the gate to the Property’s backyard.
Liquid was extracted from both containers and submitted to the lab, but the results were not back at the time of the grand jury hearing. Tpr. Desrochers stated he expected the bottles contained just bleach and vegetable oil. In response to grand juror questions, Tpr. Desrochers explained that the Crisco bottle had no explosive capacity, although defendant thought it would burn; and that defendant knew bleach could not burn, but thought that the fumes could burn.
On March 7, 2017, the grand jury returned two indictments charging violation of G.L. c. 266, § 102(a)(i) (possession), and two indictments charging violation of G.L. c. 266, § 102A (throwing or placing). Defendant moves to dismiss each of the indictments. At argument on December 19, 2017, the Commonwealth conceded that Counts 001 and 002 should be dismissed
3 Tpr. Desrochers’ testimony that the underwear was next to the bleach bottle appears to conflict with Det. Glover’s testimony that the underwear was on top of the bleach bottle. For these purposes, the discrepancy is immaterial.
for lack of sufficient evidence in light of Commonwealth v. Aldana, 477 Mass. 790, 797-804 (2017), which was decided after the indictments were returned in this case. These indictments will be dismissed. The Commonwealth opposes dismissal of Counts 003 and 004. I address these counts below.
To decide a motion under Commonwealth v. McCarthy, I must determine whether the evidence presented to the grand jury supports a finding of probable cause to believe the defendant committed the crimes charged. McCarthy, 385 Mass. at 163. “Probable cause to sustain an indictment is a decidedly low standard.” Commonwealth v. Hanright, 466 Mass. 303, 311 (2013), citing Commonwealth v. Moran, 453 Mass. 880, 883-884 (2009), and Commonwealth v. Hason, 387 Mass. 169, 174 (1982). See also Commonwealth v. Perkins, 464 Mass. 92, 101 & n.18 (2013) (probable cause is “substantially” less than proof required to avoid directed verdict). To support an indictment, the grand jury must have been presented with “reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” Hanright, 466 Mass. at 311-312, quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972).
In Counts 003 and 004, defendant is charged with violating G.L. c. 266, § 102A. The statute, which was rewritten in 2010, provides in relevant part:
Whoever, without lawful authority, secretes, throws, launches or otherwise places an explosive or a destructive or incendiary device or substance with the intent: (i) to cause fear, panic or apprehension in any person; or (ii) to ignite, explode or discharge such explosive or such destructive or incendiary device or substance; or (iii) to release or discharge any chemical, biological or nuclear weapon, shall be punished.
G.L. c. 266, § 102A.4 To prove a violation of section 102A, the Commonwealth must prove the following four elements: (1) the defendant secreted, threw, launched or otherwise placed an item; (2) the item was “an explosive” or “a destructive or incendiary device or substance”; (3) the defendant did so with a specific intent, i.e., “to cause fear, panic or apprehension in any person,” “to ignite, explode or discharge such explosive or such destructive or incendiary device or substance,” or “to release or discharge any chemical, biological or nuclear weapon”; and (4) the defendant did so without legal authority. To survive a McCarthy challenge, the Commonwealth must show the grand jury heard sufficient evidence on each of the four elements.
Defendant’s motion challenges the adequacy of the evidence on the second element, which requires proof that the item in question was “an explosive” or “a destructive or incendiary device or substance.” For purposes of this element, the statute provides a number of relevant definitions. The term “explosive” means
any element, compound or mixture that is manufactured, designed or used to produce an explosion and that contains an oxidizer, fuel and other ingredient, in such proportion, quantity or packing that an ignition by fire, friction, concussion, percussion or detonation of the element or of any part of the compound or mixture may cause such a sudden generation of highly heated gases that the resultant gaseous pressure, release of heat or fragmentation is capable of producing destructive effects on contiguous objects or of destroying life or causing bodily harm.
G.L. c. 266, § 101. The phrase “destructive or incendiary device or substance” is defined as “an explosive, article or device designed or adapted to cause physical harm to persons or property by
4 Section 102A is a criminal statute derived from the pre-2010 statutes codified at G.L. c. 266, § 102 and § 102A. Before 2010, section 102 made it illegal to throw or place explosive devices on any property. Before 2010, section 102A made it illegal to possess an “infernal machine,” defined as a “device for endangering life or doing unusual damage to property” by fire or explosion. While there are no published cases interpreting section 102A after it was amended in 2010, cases interpreting the prior version of section 102A, particularly the definition of “infernal machine,” are illuminating.
means of fire, explosion, deflagration or detonation and consisting of substance capable of being ignited, whether or not contrived to ignite or explode automatically.” Id. (emphasis added).
Nothing in the Commonwealth’s presentation to the grand jury suggested that either bleach or Crisco oil meets the definition of an explosive, nor does the Commonwealth so contend. Instead, the Commonwealth claims that each “device” constitutes a “destructive or incendiary device or substance.” To support an indictment on this charge, the Commonwealth must have presented the grand jury with evidence that the contents of the bleach bottle and the Crisco oil bottle were “capable of being ignited.” Id. See Commonwealth v. Carter, 442 Mass. 822, 824 (2004) (blasting caps incapable of exploding on their own did not meet definition of infernal machines); Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 170-171 (2013) (device capable of detonation sufficient to meet definition of explosive device).
The Commonwealth presented no evidence to the grand jury that any substance involved was capable of being ignited. The grand jury heard testimony from Tpr. Desrochers that the Crisco bottle, which contained vegetable oil, had no explosive capacity and would not burn, and that bleach could not be ignited. There was no testimony that either bottle contained any substance in addition to bleach or vegetable oil that would make it capable of burning or that the battery inside the Crisco bottle had any effect on the flammability of the bottle. Although defendant may have thought both devices were capable of igniting or intended as much, in considering whether an item is a “destructive or incendiary device or substance” within the definition provided by G.L. c. 266, § 101, it is the capability of the device, not the intent of the person who assembled it, that is determinative. Compare Commonwealth v. Greige, 86 Mass. App. Ct. 1125, 2014 WL 7178215 at * 2 (Dec. 17, 2014) (Rule 1:28 decision) (“In determining whether a device meets the statutory definition of an infernal machine, it would produce illogical
results to look at the intent of the person who built the device, rather than at the capabilities of the device.”). Where the Commonwealth did not introduce reliable information before the grand jury to allow the grand jury to find probable cause to believe each bottle contained a “substance capable of being ignited,” the Commonwealth failed to introduce sufficient evidence to support Indictment Nos. 003 and 004.
Defendant’s Motion to Dismiss (Docket #7.0) is ALLOWED. The case shall be dismissed.
Dated: March 12, 2018 Peter B. Krupp
Justice of the Superior Court

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