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13-P-295 Appeals Court

COMMONWEALTH vs. JOHN J. LOUNGE, THIRD.

No. 13-P-295. March 25, 2015.

Destruction of Property. Malicious Injury to Property. Malice.

Practice, Criminal, Dismissal, Preservation of evidence, 

Instructions to jury, Required finding. Evidence, 

Videotape, Prior misconduct.

A jury convicted the defendant of malicious destruction of 

property valued under $250.1 The defendant appeals, asserting 

that the judge erred by: (1) denying the defendant's pretrial 

motion to dismiss the indictment; (2) allowing an unpreserved 

videotape recording in evidence; (3) giving the jury an improper 

spoliation instruction; (4) allowing testimony regarding the 

defendant's prior incidents of protective custody; and, (5)

denying the defendant's motion for a required finding of not

guilty. We affirm.

I. Background. We rehearse such facts as the jury would 

have been warranted in finding. On August 17, 2011, at or 

around 7:25 P.M., the defendant entered the Avon police station; 

he was drunk. He requested assistance in collecting a debt from 

his son. After observing the defendant's intoxicated condition,

an officer placed him in protective custody. This was the third 

time in that same week the defendant had been placed in 

protective custody. The defendant was put in an empty cell; he

was the only occupant in the cell area. 

 

1 The jury found the defendant not guilty of attempt to burn 

a building.
2

At or around 10:45 P.M., the defendant, who had fallen 

asleep, awoke and begin banging on his cell door with his hands 

and feet. A dispatcher heard the banging and went to check on 

him. When she arrived, the defendant requested medical 

attention and the dispatcher informed him that she would contact

the fire department, which was next door. The dispatcher went 

back to her office and called the fire department. The

defendant, much louder than before, again banged his foot 

against the cell door.

Two firefighters arrived and waited with the dispatcher for 

an officer to let them in the cell area. While they waited, the 

dispatcher observed the defendant on the monitor lighting his 

bedroom linen on fire. As smoke and flames filled the cell, the 

defendant nurtured the fire by adding blankets to it as it grew. 

The dispatcher contacted the sergeant on duty and he, along with 

the firefighters present, went to the cell area.

The sergeant took the defendant out of the smoke filled 

cell and handcuffed him as the firefighters extinguished the 

fire. He was then placed under arrest and put in another cell 

for the night. The defendant did not request any further 

medical attention. 

II. Discussion. a. Grand jury indictment. Courts 

generally "will not inquire into the competency or sufficiency 

of the evidence before the grand jury." Commonwealth v. 

Robinson, 373 Mass. 591, 592 (1977), quoting from Commonwealth

v. Galvin, 323 Mass. 205, 211-212 (1948). An exception to this

general rule is made in situations where the grand jury is 

presented with insufficient evidence to establish "the identity 

of the accused . . . and probable cause for arrest." 

Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). This 

standard is much lower than that required for a finding of 

guilt. See Commonwealth v. Moran, 453 Mass. 880, 886 (2009). 

The grand jury watched the surveillance videotape depicting 

the defendant banging on his cell and lighting his bed linen on 

fire. They heard testimony that the defendant was the only 

person in the cell area and that he informed the arresting 

officer that he had found matches on the cell floor. This 

evidence was more than sufficient to identify the defendant and 

provide probable cause for arrest. We thus discern no error.

b. Videotape evidence and spoliation charge. In the 

defendant's pretrial motion for sanction based on the 

Commonwealth's noncompliance with the videotape preservation 
3

order, the defendant requested that the judge either dismiss the 

indictment, exclude all videotape evidence presented by the 

Commonwealth, or permit the evidence to be introduced with a 

spoliation instruction. The defendant contends that the missing 

portion of the videotape would have aided his defense. With 

such a claim, the defendant bears the burden of establishing 

that "there is a reasonable possibility based on concrete 

evidence" that the lost or destroyed evidence would have been 

exculpatory. Commonwealth v. Neal, 392 Mass. 1, 12 (1984). 

Specifically, the defendant claims that the videotape of his 

arrival at the police station, the searching of his person, and 

being placed in protective custody "was potentially 

exculpatory." However, none of that missing footage is relevant 

to the defendant's criminal actions three hours later. The 

defense has not provided any factual or scientific support to 

back this assertion. Therefore, he has failed to meet his 

burden of proof. 

Furthermore, judges have broad discretion in fashioning a 

remedy for spoliation and should "impose the least severe 

sanction necessary to remedy the prejudice to the nonspoliating 

party." Keene v. Brigham and Women's Hosp., Inc., 439 Mass.

223, 235 (2003). Although we think no prejudice has been made 

to appear, the judge did provide a spoliation instruction. In 

any event, because that instruction was sufficient to cure any 

possible prejudice, the judge's decision not to dismiss the 

indictment or exclude the available videotape evidence was not 

an abuse of discretion or other error of law. See Commonwealth

v. Kee, 449 Mass. 550, 557-558 (2007).

c. Police officers' testimony. A trial judge has 

discretion to decide the relevancy of a prior bad act and to

weigh its probative value against its potential for unfair 

prejudice. See Commonwealth v. McCowen, 458 Mass. 461, 478 

(2010). See also Mass. G. Evid., § 404 (2014). A judge's 

decision regarding admission of prior bad act evidence will not 

be disturbed by a reviewing court absent a showing of "palpable 

error." Commonwealth v. McCowen, supra. We find no such error. 

The testimony of the several officers demonstrated the 

defendant's pattern of requesting medical attention in an effort

to get out of protective custody. This evidence was probative 

because immediately before the fire the defendant requested 

medical attention and when it was not given to him straightaway

he banged his foot harder against his cell door and then lit his 

bed linen on fire. The judge was within his discretion in 
4

deciding that the probative value of the evidence outweighed any 

potential prejudice to the defendant.

2 

d. Motion for a required finding. Reviewing the evidence 

in the light most favorable to Commonwealth, see Commonwealth v. 

Latimore, 378 Mass. 671, 676-677 (1979), there was sufficient

evidence from which a rational jury could have found beyond a 

reasonable doubt that the defendant's actions were malicious 

within the meaning of G. L. c. 266, § 127. See Commonwealth v. 

Gordon, 82 Mass. App. Ct. 227, 233 (2012).

The jury could have reasonably inferred from the facts and 

circumstances presented that the defendant acted with malice.

The evidence demonstrated that the defendant banged his foot 

loudly against his cell door and set the cell linen on fire when

the medical assistance he requested did not arrive immediately. 

A finding that this was done out of "cruelty, revenge, or 

hostility" against the officers or custodians of the jail is 

thus warranted. Therefore, because the jury were warranted in 

finding that the defendant acted with malice, the defendant's 

intoxication cannot excuse his actions. See Commonwealth v. 

Henson, 394 Mass. 584, 593-594 (1985).

The judgment is accordingly affirmed.

So ordered. 

Susan Underwood for the defendant.

Roger H. Randall, Assistant District Attorney, for the 

Commonwealth.

 

2 The judge's failure to provide a limiting instruction 

regarding the introduction of prior bad act evidence was not in 

error as the defendant never requested one. See Commonwealth v. 

Errington, 390 Mass. 875, 881-882 (1984). Nor does the lack of 

instruction demonstrate a substantial risk of a miscarriage of 

justice.