Commonwealth v. Aldana (Lawyers Weekly No. 10-149-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12258 COMMONWEALTH vs. MARC ALDANA. Worcester. March 7, 2017. – September 19, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Destructive or Incendiary Device or Substance. Indictments found and returned in the Superior Court Department on December 20, 2013. A pretrial motion to suppress evidence was heard by Daniel M. Wrenn, J., and the cases were heard by Richard T. Tucker, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ethan C. Stiles for the defendant. Joseph A. Simmons, Assistant District Attorney, for the Commonwealth. LENK, J. In the course of arresting the defendant at his apartment on a default warrant, Worcester police officers saw in his kitchen three bags containing unknown powders. One of the bags was labeled “aluminum powder,” another “red iron oxide,” and one bag was not labeled. An unidentified red-brown powder was spilled on the counter and the kitchen window sill, and smudged on the wall around the window. Concerned about the appearance of the bags of powder, given the other circumstances in the apartment, one of the officers undertook an Internet search for information on the labeled substances. On the basis of information derived from that search, a detective requested assistance from the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the State police, and the local fire department. Representatives of these agencies arrived, seized the bags of powder, and removed them from the apartment. The defendant thereafter was indicted on two charges of possession of the ingredients to make an incendiary device or substance with the intent to do so, in violation of G. L. c. 266, § 102 (a), and a single charge of possession of an incendiary device or substance, in violation of G. L. c. 266, § 102 (c). After a jury-waived trial in the Superior Court, the defendant was convicted of both charges under G. L. c. 266, § 102 (a), and acquitted of the charge under G. L. c. 266, § 102 (c).[2] In this appeal, the defendant argues that the ingredients seized and observations made by police during the search of his apartment should have been suppressed, and that the evidence at trial was in any event insufficient to support his convictions. In the alternative, the defendant contends that his convictions are duplicative and that one must be […]