DocketNumber: No. 11-P-519
Citation Numbers: 82 Mass. App. Ct. 227
Judges: Hanlon
Filed Date: 7/23/2012
Status: Precedential
Modified Date: 6/25/2022
After a jury-waived trial, a District Court judge found the defendant, James P. Gordon, guilty of malicious destruction of property with a value exceeding $250. See G. L. c. 266, § 127. He appeals, arguing that the Commonwealth failed to prove he destroyed the property maliciously. We affirm.
Background. On March 13, 2010, the defendant was in his rented second-floor apartment in the town of Bourne. He started to break things. First, he broke his cellular telephone; then he broke the dishes on his kitchen table. After that, he began to break his furniture, progressing eventually to fixtures in the
The woman who owned the house testified that she and her husband had been working to renovate it; her husband had just refinished all the floors on the first floor. They lived in a nearby town and rented the second-floor area to the defendant. They had had no prior problems with him at all. Before March 13, her area, the first floor, was “perfect. ... It was gorgeous.” After her neighbor called to report the disturbance next door, she and her husband went immediately to the house. When she arrived, she saw “ [devastation . . . twenty-eight broken windows, [her collection of bronze] cranes in pieces out the front windows and furniture turned upside down on the first floor. My flowers thrown all over the place. And my bathroom vanity broken. My window. My mirrors. My brand new Anderson windows in pieces. . . . [It] stunk already because kitty litter and beer was all over the place. And the feces. It was just — it was like a bomb had gone off. That’s the only way you can explain it. I just — I was heartbroken. And I went home and I didn’t go back.” There was also evidence that the defendant broke a brand new glass-topped stove.
At the close of the Commonwealth’s case, the defendant moved for a required finding of not guilty; the trial judge denied the motion. The defendant did not renew it at the close of all of the evidence.
After the Commonwealth rested, the defendant took the stand and he testified that he had broken all of the things that were broken and he “intended to break whatever [he] broke.” He agreed that he had thrown his four television sets through the windows without opening the windows first, and that he had
Discussion. On review of the defendant’s motion for a required finding, we apply the familiar Latimore test. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The defendant does not contest that he wilfully and intentionally destroyed the property of his landlords, nor does he dispute that the value of the property exceeded $250; he argues only that he did not destroy the property maliciously, “in a sense of hostility, revenge, or cruelty.” Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 439 (1983) (Peruzzi). In his view, there was no evidence that he felt any hostility toward the property owners; rather, he was angry at himself and wanted to break things. Therefore, he argues, malice cannot be inferred, and a required finding of not guilty should have been entered.
In Peruzzi, this court traced the “development of the concept of malice in malicious damage cases” to Commonwealth v. Walden, 3 Cush. 558 (1849), and Commonwealth v. Hosman, 257 Mass. 379 (1926). We concluded that “the Hosman decision . . . reaffirmed] the holdings in the earlier cases that ‘something more than a deliberate intent to do a wrong’ must be shown to establish malice. Id. at 384. . . . ‘The word “wilful” means intentional and by design in contrast to that which is thoughtless or accidental. Malice, on the other hand, refers to a state of mind of cruelty, hostility or revenge. Both elements are required for the crime of destruction of property or as it is sometimes referred to, malicious mischief.’ ” Peruzzi, supra at 440, 442-443, quoting from Nolan, Criminal Law § 427, at 259 (1976).
The Supreme Judicial Court followed this reasoning in Commonwealth v. McGovern, 397 Mass. 863 (1986) (McGovern), a case with facts similar to those presented here. In McGovern, the defendant was found inside a Massachusetts Bay Transportation Authority (MBTA) parking lot toll booth “tearing it apart. The [MBTA police] officers also observed that a side window
Subsequent decisions have sought to elucidate the line between malicious destruction of property on one hand and wanton destruction on the other.
The court in Commonwealth v. Cimino, 34 Mass. App. Ct. 925 (1993), also discussed the difference between malicious and wanton destruction and noted that “[t]he line cannot be located exactly; an approximation must do.” Id. at 927. There, Cimino and his associates “had taken turns shooting out the windows of parked cars. Specifically, the defendant had himself accounted for the windows of two cars . . . and he was in the car while the others performed.” Id. at 926. The court affirmed Cimino’s conviction of malicious destruction because the defendant and the others “aimed the BB pistol and hit their targets.” Id. at 927. In reaching its determination the court referred to the earlier case of Commonwealth v. Morrill, 14 Mass. App. Ct. 1003 (1982), where “[sjome youths threw rocks from a bridge and one struck a car passing below. If the rocks were thrown casually, without thought of striking any cars, the offense might be in the wanton category . . . ; had the rocks been aimed at passing cars, and one or more hit, there would be wilful and malicious crime.” Commonwealth v. Cimino, 34 Mass. App. Ct. at 927. The distinction between wilful and malicious destruction and wanton destruction was similarly drawn in Commonwealth v. McDowell, 62 Mass. App. Ct. 15, 20-22 (2004).
The defendant in Commonwealth v. Wynn, 42 Mass. App. Ct. 452, 452-453 (1997), made an argument similar to that presented in this case, that is, that the evidence failed to establish “ ‘malice’ . . . because it did not show, as it must, that the defendant’s and his coventurers’ conduct was ‘motivated by “cruelty,
Other cases have explained the delineation similarly, while coming to different conclusions on different facts. See, e.g., Commonwealth v. Armand, 411 Mass. 167, 170 (1991) (damage to motor vehicle insufficient to establish malicious destruction; “[t]he defendant’s principal goal in the venture appears from the evidence to have been to assist his three companions in getting both victims out of the car so they could be beaten, and to beat them”). See also Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 5 (2001);
Judgment affirmed.
The defendant also told the police officers that he planned to kill himself and bum the house down; they found a noose hanging down from the upstairs balcony. The defendant was transported from the scene to a hospital. No defense of lack of criminal responsibility was raised.
In the case before us, there is no suggestion that the defendant acted out of revenge.
“The evidence at the jury-waived trial consisted entirely of a stipulation that [the] MBTA police officer . . . would testify in accordance with a police report and a transcript of his testimony before the grand jury.” McGovern, supra at 865.
By contrast, the court did not find sufficient evidence of an intent to steal; rather, “the evidence . . . does not permit a finding beyond a reasonable doubt that the defendant intended anything more than to vandalize the booth.” Id. at 868-869.
Both offenses are described in G. L. c. 266, § 127: malicious destruction is a felony and thus carries a possible State prison sentence; wanton destruction is a misdemeanor, carrying only a house of correction sentence, the length of the sentence depending on the value of the property destroyed.
The damage to the doors and alarm system, “[ajlthough clearly intended . . . was nothing more than ‘the adventitious by-product of a wholly discrete criminal enterprise’ (the theft of the computers) and was not . . . destructive acts that were by design and hostile to the owner of the property, whoever that may have been. . . . The forcible entry into an office will, without doubt, result in some destruction of property, but a messy thief is not necessarily malicious within the meaning of the statute.” Commonwealth v. Redmond, supra at 5, quoting from Commonwealth v. Wynn, 42 Mass. App. Ct. at 456.