Opinion
No. 14–P–605.
05-12-2016
COMMONWEALTH v. Joseph J. DALTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant, Joseph J. Dalton, was convicted of malicious destruction of property over $250; his motion for a new trial was denied. He now brings this consolidated appeal, arguing that the judge erred in denying at trial his motions for a required finding of not guilty, and in denying his motion for a new trial. We are persuaded that the defendant's motion for a required finding should have been allowed. Accordingly, we reverse his conviction.
We do not address the issues presented in the motion for a new trial.
Background. During the one-day trial, held on August 12, 2013, the jury heard the following evidence. The only witness was the victim, George Markos. Markos testified that, in 2008, he bought and renovated a two-unit residence located on Ontario Street in Lynn. Markos found a tenant for the first-floor apartment and that tenant recommended the defendant as a prospective tenant for the second-floor apartment. Markos then rented the second-floor, three-bedroom apartment to the defendant, his wife, and grown son. The tenants in both units were permitted full use of the driveway, common stairways, basement, and a large backyard.
Markos's direct testimony, cross-examination, redirect, and re-cross examinations occupy forty-one pages of transcript.
The rent was $1,350 per month, with water provided, but no other utilities.
For the first year (“2008 going into 2009”), Markos agreed he “had such good tenants,” “[they] were the best” but “[a]fter that, something went wrong.” At the end of 2009, the defendant began having difficulty paying the full amount of the rent on time. He would sometimes pay “half of the rent” with a promise to pay “half a little later”-and he did that for the most part up until the spring of 2010. In April or May, 2010, the defendant personally delivered a handwritten letter to Markos, at his restaurant, outlining a proposed rent payment schedule. Markos did not object; he trusted the defendant because “he used to come in with the money all the time.” However, after June or July, 2010, Markos received no further payments from the defendant. On December 29, 2010, Markos served upon the defendant a “30 Day Notice to Quit” instructing him to vacate the property.
The defendant and his family moved from the property on January 18 or 19, 2011; two days later, the defendant left the keys to the apartment with one of the cashiers at Markos's restaurant. The next day, Markos went to the apartment vacated by the defendant and his family. When he entered the building, he observed no damage to the exterior of the building, or the common stairways or hallway. However, when he entered the second-floor apartment he immediately observed damage; he took photographs, which were admitted at trial, of all of the damage. Specifically, Markos testified that, when he entered the apartment he saw that “all the doors were taken off the hinges” and one door looked as if someone had “punched it in”; there was “one punch in a wall” that was covered with plaster; the ceiling fan with light fixture had been removed and the wires were hanging from the ceiling; the microwave was “all burnt out”; the stove, newly installed before the defendant moved into the apartment, was all black and the burners were pulled out; the new refrigerator door was “crooked so you can close on the bottom and then the top was open. So it wasn't sealing right”; electric outlet covers had been removed; and two windows had cracked glass. Apparently, Markos also was concerned about something involving the blinds, but at trial he testified, apparently when being shown a photograph, “this was the blinds, there; no big deal to that. Anybody can do that.” In addition, what was described as a “punch” in the door also showed some indication that someone had tried to repair it. Markos also went to the basement of the building and observed that the defendant's washer and dryer were still there.
Markos later explained that it appeared that someone had tried to fix the hole in the wall by plastering it over.
According to Markos's testimony, “Anyways the windows I went back to the company where I bought them from and they gave it to me for free. So I can't say he owes money for that, they gave them to me for free. Whoever broke them, broke them, but I got them replaced for free.”
Markos testified, “And here's another one to the door, the punch in the door.” To the prosecutor's question, “what's covering that?”, Markos responded “Plaster like maybe silicone. I don't know what exact material was that.”
After that day, Markos and the defendant had a conversation and the defendant told Markos that he intended to return for the washer and dryer. Markos told him about the damage and the defendant “said he was going to pay [Markos].” Markos also told the defendant not to go to the building without him. However, when Markos returned at a later point, he noticed that the washer and the dryer were gone and the stair railing leading to the basement had been removed. Later, in a conversation between Markos and the defendant, the defendant admitted that he had taken his washer and dryer, but Markos could not remember if the defendant said that “he had removed [the stair railings] or not.” The defendant “said he was going to pay [Markos]. He said I'll pay you whatever it costs. He said what do you think it's going to cost to fix this. I said listen, we're going to forget what you owe me for rent just pay me whatever this is going to cost. Maybe $3,000, I'm not a carpenter, I don't know how to fix those things. So he said okay, I promise you I will pay you by, it was March 4 or ... something like this.”
On cross-examination, Markos admitted that he had not gone through the apartment with the defendant before he moved in, and also that the doors had not been ripped off, but unscrewed. He also agreed that he had not seen the defendant inflict any of what he described as damage and that the defendant had never threatened him. The defendant filed a motion for a required finding of not guilty at the close of the Commonwealth's evidence. He filed another after he rested without calling any witnesses.
Discussion. We review the defendant's motion for a required finding, applying the familiar Latimore test. Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). At the outset, we note that the Commonwealth had the burden of proving beyond a reasonable doubt that it was the defendant who inflicted any damage to Markos's apartment. It is not clear that burden was met here, given that no one testified to observing the defendant—or anyone—do anything relevant to the damage described; there is no evidence that the defendant ever admitted committing any of the acts causing damage; and the defendant lived in the apartment with his wife and adult son, about whom we know nothing. The defendant's promise to pay for the damage does not constitute an admission that he inflicted it, but only that, as the tenant, he intended to pay for it.
However, even assuming without deciding that the Commonwealth met its burden of proving identification, there is no evidence of malice here. Contrast Commonwealth v. Gordon, 82 Mass.App.Ct. 227, 228 (2012), where the owner of the property testified that she had discovered “[d]evastation ... 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 Gordon had broken a brand new glass-topped stove. Ibid. Gordon told the responding police officer, “I'm crazy and I do this to release my rage.” Ibid. He testified at trial that he had “ ‘intended to break whatever [he] broke’ ... [but] insisted that he had no hostility towards the landlords; they ‘never entered [his] mind.’ “ Id. at 228–229.
As this court noted in Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 440–443 (1983), “[t]he development of the concept of malice in malicious damage cases may be traced to Commonwealth v. Walden, 3 Cush. 558 (1849),” and, inter alia, Commonwealth v. Hosman, 257 Mass. 379 (1926). We concluded that “the Hosman decision ... reaffirm[ed] 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 terms wilful and malicious are not used redundantly. They convey different meanings within the context of criminal destruction of property. 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, 15 Mass.App.Ct. at 442–443.
In this case, the evidence shows only that the defendant owed Markos substantial back rent and also that there was some damage to the apartment when he left. There is no evidence whatsoever of a hostile relationship at the time of the eviction: the defendant moved out within the thirty-day period he was given; he dutifully returned the keys to Markos's restaurant; he promised to pay for any damage; and there was no evidence of any threats or harsh words.
Unlike in Gordon, the damage itself is not sufficient to infer that it was motivated by “cruelty, hostility or revenge.” In addition, the alleged “malicious” damage fades on closer examination. Thus, the doors that had been “off the hinges” were in fact “unscrewed.” The electrical sockets ripped out of the wall turned out to be intact, but missing covers. Someone apparently had attempted to repair both the wall and the door that had holes. The microwave that was damaged belonged to the defendant. The chandelier was pulled away from the ceiling, but Markos did not testify that it was broken or damaged in any way. It is at least arguably a fair inference that the “cracked windows” were themselves defective since the company that sold them generously agreed to replace them “for free.” Finally, the railings on the stairs to the basement, found unscrewed after the washer and the dryer were removed, were part of the common area of the house, and not the defendant's apartment and it is a reasonable inference that they were removed to permit the removal of the appliances in the basement.
The prosecutor so described them in her opening statement.
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The element of malice is not to be lightly inferred. “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) ; Commonwealt v. Morris M. 70 Mass.App.Ct. 688, 690, 692–693 (2007) (destruction of property caused by driving Jeep across driving range of golf course and smashing it into pole not malicious, because juvenile was driving vehicle to escape another who apparently intended to harm him; ‘Nor may it be reasonably inferred that by design he purposefully destroyed the fence and turf motivated by hostility, cruelty, or vengeance toward their owner as opposed to the resulting damage being occasioned by, or incidental to, his desire to escape his circumstances').” Gordon, 82 Mass.App.Ct. at 232 (footnote omitted).
In Redmond, we concluded that the damage to the doors and alarm system, “[a]lthough 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.” Redmond, 53 Mass.App.Ct. at 5, quoting from Commonwealth v. Wynn, 42 Mass.App.Ct. 452, 456 (1997).
So too, here, we are satisfied that a messy tenant, particularly one who moves out promptly when evicted and otherwise shows no indication of “cruelty, hostility, or revenge ... is not necessarily malicious within the meaning of the statute.” Redmond, 53 Mass.App.Ct. at 4–5.
Judgment reversed. Verdict set aside. Judgment for the defendant.