442 Mass. 95 (2004), SJC-09234, Commonwealth v. Sespedes

Docket Nº:SJC-09234
Citation:442 Mass. 95, 810 N.E.2d 790
Party Name:Commonwealth v. Danny Sespedes.
Case Date:June 16, 2004
Court:Supreme Judicial Court of Massachusetts
 
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442 Mass. 95 (2004)

810 N.E.2d 790

Commonwealth

v.

Danny Sespedes.

No. SJC-09234

Supreme Judicial Court of Massachusetts, Hampden.

June 16, 2004.

Heard: May 6, 2004.

Indictments found and returned in the Superior Court Department on November 3, 1999. Pretrial motions to suppress evidence were heard by Tina S. Page, J., and the cases were tried before Judd J. Carhart, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Brownlow M. Speer, Committee for Public Counsel Services, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

COWIN, J.

The defendant, Danny Sespedes, was charged with trafficking in heroin and cocaine. See G. L. c. 94C, § 32E (b) (4), (c) (3). He filed two motions to suppress which were denied. The trial judge denied the defendant's motion for required findings of not guilty at the close of the Commonwealth's case; the defendant was convicted of the two charges; and he appealed from both the denial of his motions to suppress and the convictions. The Appeals Court affirmed the convictions, concluding that there was no error in the denial of suppression and that there was sufficient evidence for the jury to find the defendant guilty beyond a reasonable doubt.

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Commonwealth v. Sespedes, 58 Mass.App.Ct. 907 (2003). In that opinion, the Appeals Court erroneously stated that the defendant "had been reliably identified as being personally involved in dealing drugs from the third-floor apartment." Evidence establishing this fact was contained in search warrant affidavits filed in this case, but no such evidence was introduced at trial. The Appeals Court also misstated other less important facts. Id at 910.

The defendant filed a petition for rehearing identifying the factual inaccuracies in the Appeals Court's opinion. When his petition was denied, he applied for further appellate review. The Commonwealth supported the defendant's application and conceded that the Appeals Court's opinion "contains the errors noted in the defendant's application." We denied the defendant's application without prejudice and remanded the matter to the Appeals Court for reconsideration of the defendant's petition for rehearing in light of the Commonwealth's concession.

Subsequently, in a second order, the Appeals Court again denied the defendant's petition for rehearing, concluding that "the challenged statements, even if inaccurate, were immaterial and inconsequential to the decision and in no way affected the panel's analysis or disposition." We granted the defendant's application for further appellate review, limited to the question whether the evidence was sufficient to warrant the convictions.1 We conclude that the Commonwealth's evidence was insufficient and reverse the defendant's convictions.

We summarize the evidence at the close of the Commonwealth's case in the light most favorable to the Commonwealth. See Commonwealth v. Brown, 401 Mass. 745, 745 (1988), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The building at 399 Orange Street, Springfield, is a three-story, six-apartment dwelling. Each apartment has a rear porch and a back door for entry to the apartment. Wooden stairs lead from ground level up the rear of the building.

At 5 P.M. on September 15, 1999, police officers from the Springfield narcotics bureau began a surveillance of 399 Orange Street. Officer Andrew McQuade was assigned to surveillance

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of the rear of the building. Shortly after he arrived, McQuade observed a male with "just [] a towel on, like he had just come out of the shower," whom he identified at trial as the defendant, come onto the porch from the third-floor apartment, look around, and reenter the apartment. After approximately forty minutes, McQuade saw the lights go on in a second-floor apartment. Two to three minutes later, he observed the defendant, now clothed, emerge from the second-floor apartment onto the porch. The defendant looked over the porch "for a minute or so" and went back into the second-floor apartment. Officer Felix Aguirre, who was conducting the surveillance of the front of 399 Orange Street, also observed the light in the second-floor apartment come on, and, after a brief period, turn off again. Ten minutes after the defendant was seen leaving the second-floor porch, McQuade saw him again at the "third floor rear" letting in someone who was later seen leaving the defendant's apartment. Finally, McQuade observed the defendant at the rear door of the third-floor apartment "let[ting] in" a female who had climbed up the back stairs...

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