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13

- P

- 295 Appeals Court

COMMON WEALTH 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
, Videota pe, 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
video tape recording in evidence ; (3) giving the jury an improper spoliation instruction; ( 4 ) allowing testimon y 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 p olice station ; he was drunk

. He requested assistance in collecting a debt from
his son. After observing the defendant 's intoxicat ed 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. T he 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 be gin banging on his cell door with his hands

and feet. A dispatcher heard the banging and went t o check on
him. When she arrived
, the defendant requested medical
attention and the di spatcher informed him that she would contact the fire department , which was next door. The disp atcher went
back to her office and c alled the fire department. T he
defendant , much louder than before, again bang ed his foot

aga inst 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 monito r light ing his
bedroom linen on fire. As s moke and flames filled the cell , the
defendant nurture d 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 Co mmonwealth

v. Galvin , 323 Mass. 205, 211

- 212 (1948). An exception to th is 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."

Comm onwealth 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 video tape depicting

the defendant ba nging on his cell and lighting his bed linen on

f ire. 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 w as more than sufficient to identi fy 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 video tape preservation3

order , the defendant requested that the judge either dismiss the indictment, exclude all video tape 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 wou ld 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

excul patory. " 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, j udges 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 w e 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 e xclude 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 admi ssion of prior bad act evidence will not be disturbed by a re viewing court absent a showing of "palpable

error." Commonwealth v. McCowen , supra

. We find no such error.

T he testimon y of the several officers demonstrated the defendant's pattern of re questing medical attention in an effort to get out of protective custody. This evidence was probative because immediately before the fire the defendant requested
medical at tention 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 in4

deciding that the probative value of the evidence outweighed any potential prejudice to the defendant

. 2

d. Motion for a required finding

. R eviewing the evidence in the light most favorable to Commonwealth, see C ommonwealth 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 Commonwe alth 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 c ell door and set the cell linen on fire w hen
the medical assistance he requested did not arrive immedi ately

. A finding that this was done out of "cruelty, revenge, or hostility" against the off icers 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 ac t 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 j ustice

.