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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.
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     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
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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.
