Commonwealth v. Chambers ( 2016 )

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14-P-1925 Appeals Court
COMMONWEALTH vs. NAKIA CHAMBERS.
No. 14-P-1925.
Suffolk. January 29, 2016. - September 1, 2016.
Present: Grainger, Hanlon, & Agnes, JJ.
Destruction of Property. Wilful, Wanton, or Reckless Conduct.
Practice, Criminal, Required finding, Lesser included
offense, Instructions to jury.
Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on January 2, 2014.
The case was tried before Jonathan R. Tynes, J.
Max Bauer for the defendant.
Kathryn Leary, Assistant District Attorney, for the
Commonwealth.
AGNES, J. The defendant, Nakia Chambers, appeals from her
conviction of the misdemeanor offense of wilful and malicious
destruction of property with a value equal to or less than $250,
in violation of G. L. c. 266, § 127. We agree with the
defendant that it was error to deny her motion for a required
2
finding at the close of the Commonwealth's case but, in the
unusual circumstances of this case, we conclude that because the
jury did not convict her of the offense as charged, instead
returning a verdict on a lesser included offense that was
supported by the evidence, the error was rendered harmless
beyond a reasonable doubt. See Commonwealth v. Lang, 24 Mass.
App. Ct. 253, 259 (1987). In view of the confusion that is
evident in the record about the differentiation between the
felony and the misdemeanor offenses set forth in G. L. c. 266,
§ 127, and the malice element required under two of the four
offenses set forth in § 127, we take this opportunity to review
the statute and the developments in the case law.
Background. Viewing the evidence in the light most
favorable to the Commonwealth, the jury were warranted in
finding the following facts. At the time of the events, the
defendant resided in the third-floor apartment of 111 Fuller
Street in the Dorchester section of Boston. Mary Louise Brown
and her daughter lived in the first-floor apartment, which they
rented from the property owner, a bank. Brown and the defendant
had a hostile relationship due to disagreements regarding
responsibility for trash collection in the building. On the
morning of December 17, 2013, Brown's vehicle was parked
temporarily at the base of the driveway to 111 Fuller Street,
blocking the exit to the street. The defendant's vehicle was in
3
the driveway, so she asked for Brown to move her vehicle out of
the way to allow the defendant to access the street. Brown, who
was in her vehicle, said that she would move as soon as her
daughter (who was inside the apartment) finished getting ready
for work. The defendant, who had by then exited her vehicle,
began cursing at Brown and kicking the door to the first-floor
apartment. A few minutes later, the police arrived and asked
Brown to move her vehicle. The defendant spat on Brown's car as
she moved it. After the defendant had kicked the door, "the
wood [of the doorframe] was completely shattered" and the door
could not be locked. It took several days before the door could
be repaired. While the Browns did not personally pay to repair
the door, there was no evidence offered by the Commonwealth as
to the cost of the repair.
The defendant was charged with the felony offense of
malicious destruction of property with a value more than $250.
Motion for required finding of not guilty and charge
conference. At the close of the Commonwealth's case, the
defendant moved for a required finding of not guilty, contending
that the Commonwealth failed to present evidence that the damage
to the property was more than $250, and failed to meet its
burden to prove that she had acted with malice toward the owner
of the property. The motion was denied. The defendant did not
present any evidence. During the ensuing discussion about the
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jury instructions, the judge acknowledged that "there's no
evidence of the value of the property, so . . . I think it can
be considered on the lesser [included offense], . . . it'll just
have to be the misdemeanor consideration. . . . I don't think
it's an essential element in terms of the proof of the offense."1
He further stated to counsel that he would include in the
instruction that "[the Commonwealth has] to prove that it was
either over $250 or under $250."2 The defendant objected,
arguing that the Commonwealth failed to sustain its burden on
the crime charged, the felony count.
The judge instructed, in part, as follows:
"In order to prove the defendant guilty of this offense,
the Commonwealth must prove four things beyond a reasonable
doubt. First, that the defendant injured or destroyed the
personal property of another. Second, that the defendant
did so willfully. And third, that the defendant did so
with malice. And fourth, that the amount of damage
inflicted to the property was more than $250 or less than
$250. . . .
1
With respect to the crimes set forth in G. L. c. 266,
§ 127, the theory that the value of the property damaged is a
matter for the judge in sentencing was explicitly rejected by
the Supreme Judicial Court in Commonwealth v. Beale, 434 Mass.
1024, 1025 (2001). Relying on Apprendi v. New Jersey, 530 U.S.
466, 495 (2000), the court stated that "the value of the
property must be treated as an element of the felony of
malicious destruction of property, G. L. c. 266, § 127, and that
a value in excess of $250 must be found by a jury beyond a
reasonable doubt." Beale, supra.
2
The judge declined to grant the defendant's request to
omit altogether an instruction on the value of the property,
because the judge feared it would have the effect of reducing
the Commonwealth's burden of proof.
5
"An act is done with malice if it is done out of cruelty,
hostility, or revenge. To act with malice, one must . . .
act not only deliberately, but out of hostility toward the
owner of the property. This does not require that the
person committing this offense knew the identity of the
owner, but it does require that she was hostile toward the
owner, whoever, that was.
"If you determine that the Commonwealth has proved beyond a
reasonable doubt that the defendant is guilty of willful
and malicious destruction of property, you must go on to
determine whether the Commonwealth has also proved beyond a
reasonable doubt that the reasonable cost of repair of the
damaged property, or the reasonable cost of replacement if
it cannot be repaired, was in excess of $250."
Shortly thereafter, the judge attempted to clarify the
element concerning the value of the property that was allegedly
injured or destroyed by repeating his final sentence, supra, and
adding previously agreed-upon language:
"If you determine that the Commonwealth has proved beyond a
reasonable doubt that the defendant is guilty of willful
and malicious destruction of property, you must go on to
determine whether the Commonwealth has also proved beyond a
reasonable doubt that the reasonable cost of repair of the
damaged property, or the reasonable cost of replacement if
it cannot be repaired, was in excess of $250 or less than
$250" (emphasis supplied).
The instructions regarding the value of the property led to
confusion when the time came for the jury to return their
verdict in open court.
Clerk: "What say you as to the complaint charging [the
defendant] on malicious destruction of property over $250 -
- excuse me. What say you as to the complaint charging
[the defendant] of malicious destruction of property?"
Foreperson: "Guilty."
Clerk: "Guilty to what? As to malicious destruction of
property in the amount of $250, over or under?"
Foreperson: "Not guilty (indiscernible)."
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Clerk: "Over $250 or under $250? Let me --
(indiscernible)."
Judge: "Right. I think it's -- I think if it's guilty
then it's -- if it's over $250. Then it's -- and if it's -
- I believe it says not guilty as to that, correct?" . . .
Clerk: "So it was less than $250?"
Judge: "Right."
Clerk: "So Mr. Foreman, you say the defendant is guilty of
malicious destruction of property of less than $250. So
say you, Mr. Foreman?"
Foreperson: "Yes."
The defendant then renewed her motion for a required
finding of not guilty, which was denied. The defendant was
sentenced to a term of probation for one year.
Discussion. a. Crimes encompassed by G. L. c. 266, § 127.
General Laws c. 266, § 127, as amended by St. 1987, c. 468, § 5,
provides, in relevant part:
"Whoever destroys or injures the personal property,
dwelling house or building of another in any manner or by
any means not particularly described or mentioned in this
chapter shall, if such destruction or injury is wilful and
malicious, be punished by imprisonment in the state prison
for not more than ten years or by a fine of three thousand
dollars or three times the value of the property so
destroyed or injured, whichever is greater and imprisonment
in jail for not more than two and one–half years; or if
such destruction or injury is wanton, shall be punished by
a fine of fifteen hundred dollars or three times the value
of the property so destroyed or injured, whichever is
greater, or by imprisonment for not more than two and one–
half years; if the value of the property so destroyed or
injured is not alleged to exceed two hundred and fifty
dollars, the punishment shall be by a fine of three times
the value of the damage or injury to such property or by
imprisonment for not more than two and one–half months."
Section 127 sets forth four offenses: one felony and three
misdemeanors. The felony offense is punishable by imprisonment
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in State prison for up to ten years or in a house of correction
for not more than two and one-half years. The felony offense
requires proof of four elements: that (1) the defendant injured
or destroyed the personal property, dwelling house, or building
of another; (2) he did so wilfully; (3) he did so with malice;
and (4) the property damaged or destroyed had a value greater
than $250.3 G. L. c. 266, § 127. See Commonwealth v. Deberry,
441 Mass. 211, 215 (2004); Commonwealth v. Kirker, 441 Mass.
226, 228-229 (2004). See also Commonwealth v. Beale, 434 Mass.
1024, 1025 (2001); Commonwealth v. Redmond, 53 Mass. App. Ct. 1,
4-5 (2001).4 The remaining three offenses in § 127 are
misdemeanors and are differentiated from each other as follows:
(1) wilful and malicious behavior causing damage to or
destruction of property with a value not exceeding $250, which
is punishable by imprisonment in a house of correction for not
3
The value of the property damaged or destroyed is
determined by the loss suffered by the victim (usually the
reasonable cost of repair or replacement) and not the reasonable
value of the entire property or the portion thereof that is
damaged. See Commonwealth v. Deberry, 441 Mass. 211, 220-222
(2004).
4
Wilful and malicious damage to or destruction of property
is a specific intent crime that requires proof that the
defendant "intended both the conduct and its harmful
consequences." Commonwealth v. Armand, 411 Mass. 167, 170
(1991). Wanton damage or destruction of property, on the other
hand, is a general intent crime that requires only a showing
that the actor's conduct was indifferent to, or in disregard of,
the probable consequences. Compare Commonwealth v. Cimino, 34
Mass. App. Ct. 925, 927 (1993).
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more than two and one-half months;5 (2) wanton behavior causing
damage to or destruction of property with a value exceeding
$250, which is punishable by imprisonment in a house of
correction for not more than two and one-half years;6 and (3)
wanton behavior causing damage to or destruction of property
with a value not exceeding $250, which is punishable by
imprisonment in a house of correction for not more than two and
one-half months. G. L. c. 266, § 127. The misdemeanor offense
of wilful and malicious destruction of property ([1], supra) is
a lesser included offense of the felony grade of the offense.
Deberry, supra at 224. Neither of the two wanton damage or
destruction of property offenses is a lesser included offense of
either the felony or the misdemeanor offenses involving wilful
and malicious destruction of property. Commonwealth v.
Schuchardt, 408 Mass. 347, 351-352 (1990).
b. Value of property damaged. Turning now to the case at
hand, before us is the question whether it was error to deny the
defendant's motion for a required finding on the felony offense
of wilful and malicious destruction of property valued at more
than $250. Because the parties agree that the Commonwealth
5
See Deberry, supra at 212 n.2. This lesser included
misdemeanor offense is not included as such in the model jury
instruction. See instruction 8.280 of the Criminal Model Jury
Instructions for Use in the District Court (2009).
6
See instruction 8.280 of the Criminal Model Jury
Instructions for Use in the District Court (2009).
9
failed to present any evidence of the property's value, the
defendant is correct in arguing that her motion for a required
finding of not guilty at the close of the Commonwealth's case
should have been allowed. See Deberry, supra at 224-225.
Nevertheless, the defendant here, unlike in Deberry, was not
convicted of the felony offense. The verdict of the jury
announced in open court was that she was guilty of only the
lesser included misdemeanor of wilful and malicious destruction
of property valued at or less than $250. The error, therefore,
was harmless. See Lang, 24 Mass. App. Ct. at 259, quoting from
Commonwealth v. Forde, 392 Mass. 453, 456 (1984) ("any error in
denying the defendant's motion for a required finding of not
guilty was 'rendered harmless beyond a reasonable doubt by the
jury's verdict [of the lesser included offense]'").
c. Element of malice. The defendant argues further that
the Commonwealth failed to prove the element of malice because
the Commonwealth did not prove that she knew the identity of the
owner of the property she damaged, nor that she directed her
malice toward that person or entity. Under G. L. c. 266, § 127,
the Commonwealth must prove that the act was done with malice,
that is, in "a state of mind of cruelty, hostility or revenge."
Commonwealth v. McGovern, 397 Mass. 863, 868 (1986), quoting
from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983).
See Commonwealth v. Gordon, 82 Mass. App. Ct. 227, 229-232
10
(2012), and cases cited. However, "[i]t is immaterial whether
the defendant knew the identity of the owner of the property."
Id. at 230, quoting from McGovern, supra. See Commonwealth v.
Cimino, 34 Mass. App. Ct. 925, 927 (1993) ("[T]his does not
require . . . that the actor know who owned the property
attacked . . . ; the animus need not have so personalized an
object"). Acting with the requisite malice requires more than
"acting heedlessly" or in "reckless disregard" of others.
Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 692 (2007)
(citation omitted). For example, the defendant in Cimino, supra
at 925-926, was convicted under G. L. c. 266, § 127, after going
on a spree with a BB gun, shooting out the windows of numerous
parked cars. Proof that the defendant deliberately aimed and
hit his targets, without proof that he specifically knew the
identity of the car owners, established that he acted with
malice. Cimino, supra at 927. Contrast Morris M., supra at
691-693 (no malice where defendant drove Jeep through fence and
onto driving range while trying to escape police, because he did
not act out of cruelty, hostility, or revenge). See McGovern,
supra at 865, 868 (defendant acted maliciously when he smashed
window of parking lot booth, tore out heating and lighting
units, and threw them into street).
The judge below instructed, in part, as follows: "To act
with malice, one must . . . act not only deliberately, but out
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of hostility toward the owner of the property. This does not
require that the person committing this offense knew the
identity of the owner, but it does require that she was hostile
toward the owner, whoever, that was." The first portion of this
instruction was an accurate statement of the law. However, the
last portion of this instruction was inaccurate (though in a way
that was beneficial to the defendant) insofar as it required the
Commonwealth to establish the defendant's malice was directed
specifically toward the owner of the property she damaged or
destroyed.7
The defendant's reliance on Commonwealth v. Hosman, 257
Mass. 379 (1926), is misplaced. There, the defendants, who were
7
The language used by the judge appears in instruction
8.280 of the Criminal Model Jury Instructions for Use in the
District Court (2009). In a case such as this where the
defendant's malice is directed at a person who is not the
property owner, but in lawful possession or control of the
property, this model instruction is misleading. The requirement
that the Commonwealth must prove beyond a reasonable doubt that
the defendant acted both wilfully and maliciously in the case of
two of the four offenses set forth in G. L. c. 266, § 127,
relates to the defendant's state of mind and her motivation; it
does not require proof that the defendant directed her hostility
or revenge toward the owner of the property. See Commonwealth
v. Armand, 411 Mass. 167, 170 (1991) ("Malice requires a showing
that the defendant's conduct was 'motivated by "cruelty,
hostility or revenge"'" [citation omitted]). All that is
required is that the property damaged belong to someone other
than the defendant, and that the defendant acted intentionally
and with cruelty, hostility, or revenge toward someone. See
Redmond, 53 Mass. App. Ct. at 4, and cases cited. One
alternative to the current model jury instruction would be to
substitute the word "another" for the phrase "the owner [of the
property]." See Commonwealth v. Hosman, 257 Mass. 379, 384-385
(1926), discussed infra.
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engaged in the illegal transportation of alcohol, instructed
their employee to "run down all automobiles barring his
progress." Id. at 384. In explaining why the employee's
conduct in driving though a police roadblock and causing great
damage to police vehicles was sufficient to establish that the
defendants acted with malice for the purpose of proof of the
crime of accessory before the fact to wilful and malicious
destruction of property, the Supreme Judicial Court stated that
"[i]t was not essential that [the employee] should know who
owned the Dodge automobiles, or that he should have been
actuated by a spirit of personal hostility to the owners of
these automobiles. It was enough that he intended willfully and
maliciously to destroy the property of another, whoever he might
be." (Emphasis supplied.) Ibid.
Brown's status as a tenant as opposed to a landowner is not
determinative of the criminal culpability of the defendant for
the acts she committed. The facts demonstrate that she acted
out of hostility and vengeance directed toward Brown, enraged by
the location of Brown's vehicle in the driveway. The fact that
Brown was not the actual owner of the property that was damaged
is immaterial.
Conclusion. Taken as a whole and in the light most
favorable to the Commonwealth, the evidence presented at trial
was sufficient to allow a reasonable jury to conclude that the
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defendant was guilty of the misdemeanor offense of malicious
destruction of property in violation of G. L. c. 266, § 127.
Judgment affirmed.