Opinion
14-P-1539
03-23-2016
COMMONWEALTH v. MICHAEL W. MULLAN.
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
On appeal from his conviction of malicious destruction of property valued in excess of $250, the defendant raises several claims of error. We discern no cause to disturb the judgment, and affirm, addressing the defendant's claims in turn.
1. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to establish that he acted both wilfully and with malice. When reviewing the sufficiency of the evidence, we ask whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
In the context of malicious destruction of property, malice "refers to 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). Although we have described an act done with malice as "hostile to the owner," the defendant is not required to know the identity of the owner. Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 692 (2007). See Commonwealth v. McGovern, supra. Instead, malicious conduct is frequently distinguished from wanton conduct on the basis that the defendant's principal purpose is to cause damage to the property at issue, whereas wanton conduct tends to be characterized by recklessness or the attempt to accomplish another objective. See Commonwealth v. Cimino, 34 Mass. App. Ct. 925, 927 (1993); Commonwealth v. Gordon, 82 Mass. App. Ct. 227, 230-232 (2012).
In the present case, the Commonwealth presented evidence that, at the time of the incident, a witness heard a loud bang, and the wall shook "a lot." Immediately after the incident, the defendant had an angry demeanor, was frowning, and appeared to be "extremely mad." The witness observed that the building's mailboxes and buzzer panel were damaged substantially, and that the damage appeared likely to have been caused by the application of significant force. In light of that evidence, the jury permissibly could infer that the defendant kicked in the mailboxes and buzzer panel and acted with a mindset of "cruelty, hostility or revenge" characteristic of malice. Though the defendant argues that his conduct was perhaps wanton, but not malicious, the jury were not required to agree with that assessment.
General Laws c. 266, § 127, requires that the destructive act must be "willful," which has been defined as "intentional and by design in contrast to that which is thoughtless or accidental." Commonwealth v. McGovern, supra. From the same evidence described above, the jury could infer that the defendant intended to inflict damage upon the panel.
2. Identification. The defendant also claims error in the trial judge's refusal (i) to ask prospective jurors a question proposed by the defendant concerning eyewitness identification evidence or (ii) to give a preliminary instruction regarding eyewitness identification requested by the defendant.
As to the first claim, the defendant has cited no authority to support his argument; his contention accordingly does not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, "the scope of juror voir dire rests in the sound discretion of the trial judge, and a judge's determination that the jury stand impartial will not be disturbed on appeal absent a showing that the judge abused his discretion or that the judge's determination was clearly erroneous." Commonwealth v. Silva, 455 Mass. 503, 512 (2009). The defendant has made no such showing.
As to the defendant's request for a preliminary instruction on identification, we note that "[p]reliminary instructions, while common, are not required." Commonwealth v. Cintron, 438 Mass. 779, 785-786 (2003). The choice whether to give a preliminary instruction rests in the sound discretion of the trial judge. See Commonwealth v. Yameen, 401 Mass. 331, 336 (1987). We accordingly review the defendant's claim to assess whether the trial judge abused his discretion. We discern no such abuse. The instruction requested by the defendant was drawn from a proposal contained in the Report and Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence, and was not adopted by the court until several years after the trial in the present case. See Commonwealth v. Gomes, 470 Mass. 352, 354 (2015). In particular, we note that the court explicitly described the proposed instruction it developed as "provisional," invited comment on its content and clarity before declaring it a model instruction, and directed that it be given, where appropriate, in trials commencing after issuance of its opinion in that case. See ibid.
We note that the defendant did not request a final instruction on eyewitness identification, and raises no claim of error regarding the judge's final charge to the jury on the topic of identification.
3. Humane practice instruction. There likewise is no merit in the defendant's claim of error in the trial judge's refusal to give a "humane practice" instruction. A "judge has no duty to ask the jury to pass on voluntariness unless it is made a live issue at trial." Commonwealth v. Smith, 426 Mass. 76, 82 (1997), quoting from Commonwealth v. Tavares, 385 Mass. 140, 150, cert. denied, 457 U.S. 1137 (1982). "[T]he question of voluntariness must be raised by the defendant, and he must offer some proof to support his claim." Smith, supra. In the present case, the defendant presented no evidence to raise a question regarding the voluntariness of his statement to police. The only evidence concerning voluntariness in any manner was the officer's testimony that the defendant had approached the officer freely, and that he was cooperative throughout the encounter. The defendant did not challenge this version of events; in fact, in closing, the defendant agreed that he was in the building on that day, and he cited his willingness to cooperate with the police as evidence of his innocence. Absent any evidence to suggest that the defendant's statements were not voluntarily made, the judge did not err in refusing to give a humane practice instruction. See Commonwealth v. Cutts, 444 Mass. 821, 832-833 (2005).
4. Registry of Motor Vehicles records. Finally, the defendant argues that records of the Registry of Motor Vehicles (RMV) should not have been admitted because they were irrelevant and unfairly prejudicial. "'Relevant evidence' is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Commonwealth v. Rousseau, 465 Mass. 372, 388 (2013), quoting from Mass. G. Evid. § 401 (2012). This "evidence is admissible unless unduly prejudicial, and, [i]n weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong." Rousseau, supra, quoting from Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). In the present case, the judge did not abuse his discretion in admitting the RMV records to show a connection between the defendant and a motor vehicle that was parked near the building at the time of the crime. The witness testified that the defendant walked toward that car immediately after the crime. The records accordingly stand as evidence in support of the proposition that the defendant was present at the scene of the damage, both on the date and at the time it occurred, which supports the inference that the defendant was the person who caused the damage.
The motor vehicle was registered to a woman residing at the same address as the defendant on the date of the crime, and the defendant purchased the motor vehicle shortly after the date of the crime.
Judgment affirmed.
By the Court (Green, Vuono & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 23, 2016.