Com. v. Dellinger

• Decision Date: 29 September 1980
• Citation: 409 N.E.2d 1337,10 Mass.App.Ct. 549
• Parties: COMMONWEALTH v. Lanny A. DELLINGER (and three companion cases). 1
• Court: Appeals Court of Massachusetts

Page 1337

409 N.E.2d 1337

10 Mass.App.Ct. 549

COMMONWEALTH v. Lanny A. DELLINGER (and three companion cases). ¹

Appeals Court of Massachusetts, Essex.

Argued Dec. 10, 1979.

Decided Sept. 29, 1980.

Henry A. Follen, Jr., Boston, for Lanny A. Dellinger.

John H. Brazilian, Boston, for James A. Lathan.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, ROSE and KASS, JJ.

ARMSTRONG, Justice.

The defendants were convicted of possession of burglarious tools and conspiracy to rob. The principal witness against them was one Grant, the driver of a United Parcel Service (UPS) truck. Grant testified that on January 17, 1979, following a pickup from Towle Manufacturing Co., a manufacturer of silver products in Newburyport, of a cargo valued at roughly $175,000, and shortly before turning into the parking lot of his next scheduled stop, another Newburyport industrial plant, Gould Corp., he noticed that his truck was being following by a brown car. The car turned into the Gould parking lot after him and cruised slowly past his truck as he backed up to the loading door. Three men appeared to be looking at the truck through the open windows of the car. The car parked in a rear parking lot not ordinarily used for visitor parking. Grant entered the Gould factory through the loading door; but he became nervous, returned to check the truck, and observed the car cruising slowly past it, the three occupants looking at the truck through open windows on the passenger side. The car then parked in a front parking lot. When Grant completed his business, he saw that the car had left. Snow was falling heavily; by the car's tire tracks he could see that it had turned left on leaving the parking lot. Grant, still apprehensive, turned right, deviating in that respect from his usual route, and headed towards Interstate Route 95 (I-95) about two miles away. Before reaching I-95 he pulled over to the side of the country road he was travelling on to clean the snow and ice off his windshield and side-view mirrors. The brown automobile soon came into view and passed him slowly. The passenger window was open, despite the snow and cold. He started the truck again and entered the ramp to I-95 southbound. The brown car, which had passed beyond the I-95 interchange, made a U-turn and followed Grant's truck onto I-95. Grant took the next (Byfield) exit. The brown car followed. Grant stopped at an open gas station, and the brown car drove past, disappearing from view. Grant then telephoned from the gas station to the UPS depot in Lynnfield and to the State police. As he was phoning he saw the brown car enter a driveway opposite the gas station which led to the parking lot of a Howard Johnson's restaurant.

When a State police cruiser arrived, Grant told the trooper his story, and the trooper drove Grant through the Howard Johnson's parking lot. Grant pointed out the brown car. It had Rhode Island plates. The trooper got out and checked the plates to see if they were securely attached. They were. The trooper drove Grant back to his truck, told him to reenter I-95 southbound and to proceed directly to the UPS Lynnfield depot. The trooper then watched to see if the brown car would follow the truck. It did, whereupon the trooper signaled the brown car to pull off the road. He asked the occupants for identification, then reentered the cruiser. He had previously checked out the Rhode Island plates by radio, learning that there was no stolen car report. The car was registered to the defendant Dellinger, who was in fact driving. After further radio inquiry the trooper learned that there were no warrants outstanding for the arrest of any of the three occupants. Persisting further, the trooper checked prior criminal records and learned that all three men had criminal records in Rhode Island, including possession of machine guns and sawed-off shotguns; one had been arrested for murder; one had "a very lengthy criminal record for receiving stolen property, breaking and entering, (and) several other serious criminal offenses . . . ." Three more police officers arrived, from Newbury and Georgetown. Revolvers drawn, the police ordered the three men out of the brown car. They were frisked for weapons: none was found. The car was searched. On the front seat were a black ski mask and a brown pair of work gloves. Under the front seat, driver's side, was a pair of binoculars. A red-handled screwdriver lay on the floor in front of the passenger seat. In the glove compartment were a stocking cap, a Phillips screwdriver in a knife sheath, a pair of wire cutters, a yellow-handled screwdriver, a clear-handled screwdriver, a spotlight of the type that can be plugged into the cigarette lighter, and a pair of black leather gloves. In the rear seat were a second pair of brown work gloves and an extra jacket. The trunk was searched, disclosing a hammer, a large pair of "water-pump" pliers, a regular pair of pliers, two more screwdrivers, and a dent-puller with an extra, larger handle, all of which were located together just left of center in the trunk. In the right rear fender well was a heavy plastic duct which would normally be found between a front fender and the carburetor; inside it was a clear plastic Halloween-type mask. ²

The car and the defendants were taken into custody. A waitress from the Howard Johnson's restaurant was driven to the car to identify the men. She and a headwaitress were to testify at the trial that the defendants insisted on sitting by a window (which would place them in a position to observe traffic entering I-95 southbound), asked the waitress if she knew where the UPS depot was located, looked in a telephone directory, and were acting nervous when they paid up and left after fifteen to twenty minutes. The headwaitress also testified that during that time the defendant Dellinger went outside for approximately five minutes. The State trooper testified that he asked the defendants prior to searching the car what they were doing in the area and was told that they had been in "Portsmouth, Maine," looking for boats. None of the defendants testified or offered a defense.

The defendants objected to the testimony that Grant had picked up a cargo valued at $175,000 at Towle Manufacturing Co. prior to his observing the defendants for the first time. The judge did not abuse his discretion in ruling, in essence, that the Towle pickup had been connected sufficiently to be admissible. Towle was the last stop made before Grant noticed that he was being followed. It would be reasonable to assume that a cargo from a silver-products manufacturer would have an unusual value and be a suitable target for a hijacking. Grant testified that Towle was one of his regular stops and that the stops at Towle were made at roughly the same time each day. Grant's testimony that the defendants turned left out of the Gould lot suggested that the defendants were familiar with Grant's route.

The defendants' motions for directed verdicts present a closer question. The evidence was obviously strong that the defendants were intentionally following the UPS truck. The truck carried a valuable cargo, and the defendants, for the reasons given, could be found to have had either actual knowledge of that fact or reason to believe that such was the fact. Their explanation to the State trooper that they had been boat-shopping in "Portsmouth, Maine" could reasonably (apart from the fact that Portsmouth is in New Hampshire) be found inconsistent with their behavior as reported by Grant. The contents of the car were not as helpful to the Commonwealth's case as they might have been if, as the police doubtless expected, guns had been found; but the abundance of screwdrivers and gloves, as well as the mask from the passenger compartment (the mask in the trunk having been suppressed) and wire cutters were marginally incriminating in light of the strong evidence of purposeful pursuit of a likely robbery target. The mask tended to suggest robbery as opposed to larceny of or from the truck while unattended. Moreover, if, as could be inferred, the defendants knew Grant's route, they presumably would also know that his stops were finished and that it was unlikely that he would leave the truck until it was returned to the depot in Lynnfield. Thus, there was some evidence that the defendants conspired to rob Grant of his truck or its contents.

"(S)ome record evidence", however, is not enough for the Commonwealth to sustain its burden of proof; in a criminal case the Commonwealth must offer "enough evidence (to) satisf(y) a rational trier of fact of each (essential element of the offense) beyond a reasonable doubt." Commonwealth v. Latimore, --- Mass. ---, --- ^a, 393 N.E.2d 370, 375 (1979). One element of robbery is that the taking be by force or threat of force from a person. No guns were found in the car; there was no evidence that guns were jettisoned from the car before the search (contrast Commonwealth v. Tatro, 223 Pa.Super. 278, 297 A.2d 139 (1972)), ³ and the search turned up no obvious means of communicating with confederates who might have had guns. The use of guns (or other weapons) is not, of course, an element of the crime of robbery; nevertheless, their absence tends to cast doubt on the theory that a robbery was to have taken place that afternoon. It is possible, of course, that the defendants intended to cut off the UPS van with their car and advance on its driver unarmed or armed only with screwdrivers; but such a hypothesis cannot be said to have been proved beyond a reasonable doubt; on the record it is speculative and seems, frankly, rather implausible. A more likely hypothesis is that if the substantive offense planned was to be a robbery, the defendants were "casing the job", planning for a robbery at a later date when they would come suitably armed; but if the substantive offense were to be executed on another day, it is not...