Opinion
14-P-904
10-19-2015
COMMONWEALTH v. CHARLENE A. RAFTELL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of malicious destruction of property valued under $250 after she slashed the side of a motor vehicle in a Wal-Mart store parking lot with a key. In this appeal, she argues that the judge erred in declining to hold a hearing on her motion to exclude statements that she made to police. She also challenges the sufficiency of the evidence. We affirm.
Background. On November 20, 2010, Caesar Machado and his girl friend drove to a Wal-Mart store in Salem. As Machado's girl friend pulled their vehicle into a space in the parking lot, they noticed another vehicle driving past them. The defendant was driving that vehicle and was "staring" at Machado and his girl friend because they took the parking spot.
Inside the store, the defendant approached Machado and his girl friend and said, "[Y]ou get what you deserve," and "[L]ife's going to be a bitch." Machado and his girl friend walked away. Machado then went outside to check on their vehicle. He saw the defendant standing at the right side of the vehicle, facing the vehicle, and moving her hand back and forth. He approached her and asked what she was doing. She answered, "Nothing." He then noticed that the vehicle was scratched. The scratches were not there previously. The defendant entered her vehicle and eventually left the parking lot.
Swampscott police Officer Serino stopped the defendant's vehicle after receiving a description of it over his radio. He asked her "why she was driving erratically." The defendant said that "she did something wrong and that she just keyed a car." He then read Miranda warnings from a card, "[s]he acknowledged them," and then again "[s]he told me [him] she had keyed a car." The defendant was arrested. Officer Gillam spoke with her at the Salem police station. Gillam informed the defendant of her Miranda rights, she signed a card acknowledging those rights, and then "[s]he told [him] that she did key the car."
On November 22, 2010, the defendant was charged with one count of malicious destruction of property over $250. On July 28, 2011, before jury empanelment, the defendant moved to exclude her statements to police. The judge denied the motion. A jury found the defendant guilty of the lesser included offense of malicious destruction of property under $250. The judge sentenced the defendant to one year of probation. She filed a timely notice of appeal on August 8, 2011.
Motion to exclude statements. The defendant argues that the judge erred in declining to hold a hearing on her motion to exclude the statements that she made to police. We disagree.
The record is unclear why the defendant brought a motion in limine instead of a motion to suppress. An appellate court may treat a motion in limine as a motion to suppress, see Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998), but we decline to do so here.
A motion in limine in a criminal case should be "brought in compliance with the explicit requirements of the Mass.R.Crim.P. 13(a)." Commonwealth v. O'Malley, 14 Mass. App. Ct. 314, 321 (1982). "The requirements of rule 13 are not empty formalities," and a judge must determine "that the requirements of the rule have been satisfied before scheduling an evidentiary hearing on a proffered motion" to exclude evidence. Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 204 (2004).
Rule 13(a)(2), as appearing in 442 Mass. 1516 (2004), establishes requirements for pretrial motions:
"A pretrial motion shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity. . . . In addition, an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached."
Here, the judge properly declined to hold a hearing, including voir dire of the Commonwealth's witnesses, because the defendant's motion failed to provide an adequate factual basis as support. See ibid. The defendant's failure to state with particularity "all reasons, defenses, or objections then available," and her failure to include "an affidavit detailing all facts relied upon in support of the motion," were sufficient reasons not to hold a hearing. Mass.R.Crim.P. 13(a)(2). During trial, the defendant had opportunities to challenge use of the statements. The motion was properly denied.,
The defendant did not object to Officer Gillam's testimony on the statements she made at the police station. The defendant objected to testimony from Officer Serino, who conducted the roadside stop.
The statements that the defendant challenges in this appeal are also cumulative of her own testimony at trial. On direct examination, she testified that she told Officer Serino, "I know you're looking for me, I did this." On cross-examination, the prosecutor asked her, "And then you keyed the car, correct?" She responded, "Uh-huh." The prosecutor then asked, "And you remember doing it?" The defendant responded, "Oh, yes." Even if the defendant were correct that the officers should not have been allowed to testify to her statements, her own testimony rendered the testimony of the officers merely cumulative. See Commonwealth v. Galicia, 447 Mass. 737, 747-748 (2006).
Even if this court were to bypass the waiver issue, there is no merit to the claim that a motion to suppress the defendant's statements had any likelihood of success had trial counsel filed such a motion. Cf. Commonwealth v. Comita, 441 Mass. 86, 91 (2004) ("[T]he defendant has to demonstrate a likelihood that the motion to suppress would have been successful"). Similarly, trial counsel had no reasonable basis for filing a motion to dismiss with respect to the conduct of the Swampscott police in questioning the defendant.
Sufficiency of evidence. The defendant's motion for a required finding of not guilty was denied at trial, and she argues here that insufficient evidence existed to prove that she damaged the car with malice, a necessary element under G. L. c. 266, § 127.
Appellate review of a defendant's motion for a required finding is limited to examining whether sufficient evidence existed for the case to go a jury and whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Commonwealth v. Platt, 440 Mass. 396, 400 (2003). See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Malice under G. L. c. 266, § 127, "refers to a state of mind of cruelty, hostility or revenge." Commonwealth v. Gordon, 82 Mass. App. Ct. 227, 229 (2012).
Here, the defendant's motion for a required finding was properly denied. Testimony from Machado, and the defendant herself, could permit a rational jury to find beyond a reasonable doubt that the defendant damaged Machado's vehicle with "a state of mind of cruelty, hostility or revenge" based on the dispute over the parking space. See ibid.
Judgment affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 19, 2015.