NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-617
COMMONWEALTH
vs.
DIANE E. GILLIGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of vandalism
of property. Before us is the defendant's consolidated appeal
from her conviction and from the denial of her motion for a new
trial. She argues that the evidence was insufficient to support
her conviction, that an erroneous jury instruction created a
substantial risk of a miscarriage of justice, and that she is
entitled to a new trial because the judge admitted testimony
about video recordings that were never produced to the defense.
We affirm.
Background. On March 7, 2018, the defendant's upstairs
neighbor, Lindsay Bennett-O'Brien (O'Brien), left her apartment
in South Boston for a trip out of state. She returned late at night on March 11, 2018. The next morning she noticed that the
front passenger window of her car, which had been intact before
she left, was broken. O'Brien had two cameras set up around the
building, directed toward the back parking lot. O'Brien
reviewed the footage from when she had been away and was able to
identify the defendant on the recordings "knocking out [her]
window."
Video footage entered into evidence from the night of March
8, 2018,1 showed the following. At some point that evening, the
defendant left her apartment and walked through the back parking
lot and then down the driveway briefly, before returning to the
parking lot. The defendant then went straight to O'Brien's car,
immediately hit the front passenger window twice until it
shattered, and returned to her apartment. The video footage
captured the sound of the defendant's hitting the window twice
and the sound of it shattering, and footage from the roof
appeared to show the window intact prior to the incident. After
a few minutes, the defendant went back outside and drove away in
her car. Upon returning about thirty minutes later, the
defendant reapproached O'Brien's car, pushed on the glass at
least once, and covered the window with a trash bag.
1 Three brief video recordings of the incident were admitted at trial over the defendant's objection. One recording was taken from a rooftop camera, and the other two came from a shed camera.
2 The defendant, testifying on her own behalf, did not
dispute that she broke O'Brien's car window but claimed that she
did so because she saw a "softball size" bowing on the window.
According to the defendant, she "just tapped [the window] twice"
with a wooden spoon to force the bowing inward and prevent the
window from shattering in the parking lot. She then drove to
the police station to report the damage. After returning, the
defendant pushed the glass inward before placing a bag over the
window to protect the car. At this point she went upstairs to
notify O'Brien about the damage, but O'Brien was not home.
Discussion. 1. Sufficiency of the evidence. In reviewing
the denial of a motion for a required finding of not guilty, we
evaluate the evidence in the light most favorable to the
Commonwealth to determine "whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt" (quotation omitted). Commonwealth v.
Quinones, 95 Mass. App. Ct. 156, 162 (2019). Inferences
supporting a conviction "need only be reasonable and possible;
[they] need not be necessary or inescapable" (quotation
omitted). Id.
The crime of vandalism of property requires proof that the
defendant "intentionally, willfully and maliciously or wantonly"
damaged the property of another. G. L. c. 266, § 126A. The
statute "contains two disjunctive elements: [willful] and
3 malicious conduct, or, wanton conduct." Commonwealth v.
McDowell, 62 Mass. App. Ct. 15, 22 (2004). In this case the
Commonwealth proceeded under a theory of willful and malicious
conduct. The defendant challenges only the malice element,
arguing that the Commonwealth failed to prove that she acted
with malice in breaking the car window. We disagree.
To satisfy the malice element, the Commonwealth must prove
that the defendant's conduct was "motivated by cruelty,
hostility or revenge" (quotation omitted). McDowell, 62 Mass.
App. Ct. at 22. Here, the undisputed video evidence showed the
defendant walking up to the front passenger window of O'Brien's
car and, without hesitation, hitting it twice, causing it to
shatter. From the seemingly inexplicable nature of these
actions, the jury could infer that the defendant acted
maliciously. See Commonwealth v. Rumkin, 55 Mass. App. Ct. 635,
640-641 (2002) (jury could infer malice from defendant's kicking
of car mirror).
The Commonwealth's "position as to proof [did not]
deteriorate between the time the Commonwealth rested and the
close of all the evidence" (quotation omitted). Commonwealth v.
Doucette, 408 Mass. 454, 462 (1990). The defendant admitted in
her testimony to breaking the window, albeit for different
reasons than those alleged by the Commonwealth. It was for the
jury to determine the credibility of the defense witnesses, and
4 the jury were free to disbelieve their testimony. See
Commonwealth v. Berry, 68 Mass. App. Ct. 78, 81 (2007).
2. Erroneous jury instruction. In his final charge, the
judge correctly instructed the jury that the Commonwealth had
the burden of proving that the defendant acted "willfully with
malice." But in defining the element a few moments later, the
judge stated that the Commonwealth must prove that the defendant
"acted willfully or maliciously." The Commonwealth concedes
that this latter instruction was incorrect because it could
allow the jury to convict the defendant without a finding of
malice.
Because the defendant did not object to the instruction at
trial, the error is only reversible if it created a substantial
risk of a miscarriage of justice. See Commonwealth v. King, 460
Mass. 80, 85 (2011). Our inquiry "turns on whether a reasonable
juror could have used the instruction incorrectly."
Commonwealth v. Sunahara, 455 Mass. 832, 836 (2010). In making
this assessment, "we review the entire charge to the jury to
determine the interpretation a reasonable jury would place on
the judge's words." King, supra. We also consider the strength
of the Commonwealth's case, the nature and significance of the
error, and the possibility that the lack of objection was a
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-617
COMMONWEALTH
vs.
DIANE E. GILLIGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of vandalism
of property. Before us is the defendant's consolidated appeal
from her conviction and from the denial of her motion for a new
trial. She argues that the evidence was insufficient to support
her conviction, that an erroneous jury instruction created a
substantial risk of a miscarriage of justice, and that she is
entitled to a new trial because the judge admitted testimony
about video recordings that were never produced to the defense.
We affirm.
Background. On March 7, 2018, the defendant's upstairs
neighbor, Lindsay Bennett-O'Brien (O'Brien), left her apartment
in South Boston for a trip out of state. She returned late at night on March 11, 2018. The next morning she noticed that the
front passenger window of her car, which had been intact before
she left, was broken. O'Brien had two cameras set up around the
building, directed toward the back parking lot. O'Brien
reviewed the footage from when she had been away and was able to
identify the defendant on the recordings "knocking out [her]
window."
Video footage entered into evidence from the night of March
8, 2018,1 showed the following. At some point that evening, the
defendant left her apartment and walked through the back parking
lot and then down the driveway briefly, before returning to the
parking lot. The defendant then went straight to O'Brien's car,
immediately hit the front passenger window twice until it
shattered, and returned to her apartment. The video footage
captured the sound of the defendant's hitting the window twice
and the sound of it shattering, and footage from the roof
appeared to show the window intact prior to the incident. After
a few minutes, the defendant went back outside and drove away in
her car. Upon returning about thirty minutes later, the
defendant reapproached O'Brien's car, pushed on the glass at
least once, and covered the window with a trash bag.
1 Three brief video recordings of the incident were admitted at trial over the defendant's objection. One recording was taken from a rooftop camera, and the other two came from a shed camera.
2 The defendant, testifying on her own behalf, did not
dispute that she broke O'Brien's car window but claimed that she
did so because she saw a "softball size" bowing on the window.
According to the defendant, she "just tapped [the window] twice"
with a wooden spoon to force the bowing inward and prevent the
window from shattering in the parking lot. She then drove to
the police station to report the damage. After returning, the
defendant pushed the glass inward before placing a bag over the
window to protect the car. At this point she went upstairs to
notify O'Brien about the damage, but O'Brien was not home.
Discussion. 1. Sufficiency of the evidence. In reviewing
the denial of a motion for a required finding of not guilty, we
evaluate the evidence in the light most favorable to the
Commonwealth to determine "whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt" (quotation omitted). Commonwealth v.
Quinones, 95 Mass. App. Ct. 156, 162 (2019). Inferences
supporting a conviction "need only be reasonable and possible;
[they] need not be necessary or inescapable" (quotation
omitted). Id.
The crime of vandalism of property requires proof that the
defendant "intentionally, willfully and maliciously or wantonly"
damaged the property of another. G. L. c. 266, § 126A. The
statute "contains two disjunctive elements: [willful] and
3 malicious conduct, or, wanton conduct." Commonwealth v.
McDowell, 62 Mass. App. Ct. 15, 22 (2004). In this case the
Commonwealth proceeded under a theory of willful and malicious
conduct. The defendant challenges only the malice element,
arguing that the Commonwealth failed to prove that she acted
with malice in breaking the car window. We disagree.
To satisfy the malice element, the Commonwealth must prove
that the defendant's conduct was "motivated by cruelty,
hostility or revenge" (quotation omitted). McDowell, 62 Mass.
App. Ct. at 22. Here, the undisputed video evidence showed the
defendant walking up to the front passenger window of O'Brien's
car and, without hesitation, hitting it twice, causing it to
shatter. From the seemingly inexplicable nature of these
actions, the jury could infer that the defendant acted
maliciously. See Commonwealth v. Rumkin, 55 Mass. App. Ct. 635,
640-641 (2002) (jury could infer malice from defendant's kicking
of car mirror).
The Commonwealth's "position as to proof [did not]
deteriorate between the time the Commonwealth rested and the
close of all the evidence" (quotation omitted). Commonwealth v.
Doucette, 408 Mass. 454, 462 (1990). The defendant admitted in
her testimony to breaking the window, albeit for different
reasons than those alleged by the Commonwealth. It was for the
jury to determine the credibility of the defense witnesses, and
4 the jury were free to disbelieve their testimony. See
Commonwealth v. Berry, 68 Mass. App. Ct. 78, 81 (2007).
2. Erroneous jury instruction. In his final charge, the
judge correctly instructed the jury that the Commonwealth had
the burden of proving that the defendant acted "willfully with
malice." But in defining the element a few moments later, the
judge stated that the Commonwealth must prove that the defendant
"acted willfully or maliciously." The Commonwealth concedes
that this latter instruction was incorrect because it could
allow the jury to convict the defendant without a finding of
malice.
Because the defendant did not object to the instruction at
trial, the error is only reversible if it created a substantial
risk of a miscarriage of justice. See Commonwealth v. King, 460
Mass. 80, 85 (2011). Our inquiry "turns on whether a reasonable
juror could have used the instruction incorrectly."
Commonwealth v. Sunahara, 455 Mass. 832, 836 (2010). In making
this assessment, "we review the entire charge to the jury to
determine the interpretation a reasonable jury would place on
the judge's words." King, supra. We also consider the strength
of the Commonwealth's case, the nature and significance of the
error, and the possibility that the lack of objection was a
reasonable tactical decision. See id.
5 We are satisfied in this case that the erroneous
instruction did not create a substantial risk of a miscarriage
of justice. The judge's first, correct instruction that the
defendant must have acted "willfully with malice" left little
room for doubt that a showing of malice was required. See
Commonwealth v. Koonce, 418 Mass. 367, 370 (1994) (new trial not
warranted based on judge's "single slip of the tongue" that was
"isolated and discrete"). The misstatement only came after the
correct instruction focused the jury on the necessity of finding
malice, and it went unnoticed by both of the attorneys and the
judge. This suggests that the error was unlikely to have misled
the jury in any significant way. See Commonwealth v. Oliveira,
445 Mass. 837, 844-845 (2006) (no substantial likelihood of
miscarriage of justice from misstatement that was made between
two correct instructions and went unnoticed by experienced
defense counsel).
The error was further mitigated by the jury's repeated
exposure to the malice requirement throughout trial and the
strength of the evidence presented on the issue. The defendant
previewed the malice requirement on multiple occasions. She
pointed to it in both her opening statement and closing argument
and affirmed in her testimony that she did not break the window
with malice, ill will, or hostility. Also, after the jury were
sworn, the clerk informed them that the defendant was charged
6 with vandalizing O'Brien's property "intentionally, willfully,
and maliciously, or wantonly." Moreover, the record as a whole,
particularly the video recordings, presented strong evidence
that allowed the jury to conclude that the defendant acted
maliciously by breaking the window. See Commonwealth v.
Solomonsen, 50 Mass. App. Ct. 122, 125 (2000) (no danger that
incorrect instruction misled jury given strength of evidence).
When viewed in the context of the entire charge and the evidence
presented, the erroneous instruction did not present a
substantial risk of a miscarriage of justice. See Oliveira, 445
Mass. at 844-845.
In her new trial motion, the defendant raised a claim of
ineffective assistance of counsel based on counsel's failure to
object to the erroneous instruction. Where a "claim of
ineffectiveness is predicated, as it is here, on counsel's
failure to object to something that occurred at trial, the
standard for evaluating the ineffectiveness claim is not
significantly different from the substantial risk standard that
is applicable to our review of the underlying, unpreserved
error." Commonwealth v. Azar, 435 Mass. 675, 686 (2002). For
the reasons already stated, the defendant has failed to
demonstrate a substantial risk of a miscarriage of justice.
3. Testimony on unproduced video recordings. Prior to
trial the defendant filed a motion in limine to prevent the
7 admission of any video recordings. The defendant asserted that
admitting a "partial clip" would be unfairly prejudicial because
only the full recordings from March 6, 2018, through March 8,
2018, which were never produced, could fairly represent how the
window was damaged.2 In ruling on the motion, the judge limited
the evidence "to the actions of the 8th of March," thereby
excluding any testimony about what was on the video footage
prior to that date.
In her new trial motion, the defendant argued that the
Commonwealth ran afoul of the judge's ruling when, on redirect
examination of O'Brien, it elicited testimony that she "watched
every minute of [footage from] the entire time period" she was
away and that "[t]here was nothing else that showed anything
that could have caused the window to break." The defendant
claimed that this violated her rights under the Sixth and
Fourteenth Amendments to the United States Constitution because
defense counsel had not seen the other video footage and was
thus unable to conduct a meaningful cross-examination. The
motion judge, who was also the trial judge, disagreed, finding
that defense counsel opened the door to the testimony.
2 O'Brien produced video clips from March 6, 2018, and March 8, 2018. When the defendant requested more footage, the Commonwealth responded that O'Brien did not have any more footage because no recordings could be retrieved from the security company after ten days.
8 We review the denial of a new trial motion only for abuse
of discretion, affording "special deference" to the motion
judge's rulings where he was also the trial judge. Commonwealth
v. Hung Tan Vo, 427 Mass. 464, 467 (1998). We discern no abuse
of discretion in the judge's ruling here that defense counsel
opened the door to the challenged testimony. During his cross-
examination of O'Brien, defense counsel repeatedly asked
questions that implied that O'Brien had no knowledge of what
happened to her car window apart from what she saw on the video
clips produced from March 8, 2018. For instance, counsel asked,
"But in terms of the video, there's nothing showing what
happened between when you went away and when this incident
occurred, correct?" When O'Brien asked him to repeat the
question, counsel asked, "I'm saying . . . that you went away on
the 7th . . . and the video here only shows one portion of the
time, which would be the nighttime of March 8th. It doesn't
save anything else?" O'Brien confirmed that that was correct.
Counsel then had O'Brien confirm that she was not "at [her]
house" and so was not "personally able to observe anything
during that time." Toward the end of cross-examination, counsel
followed up by asking O'Brien, "[Y]ou have no idea what may or
may not have happened to that window prior to you seeing the
video and coming home, correct?" O'Brien replied, "No."
9 The judge properly concluded that these questions opened
the door to testimony on redirect about O'Brien's review of
other video footage from the time period at issue. The plain
import of the defendant's cross-examination was that O'Brien had
no knowledge whether her car window might have already been
damaged sometime between when she left for her trip and when the
defendant was seen on the video clips from March 8, 2018.
Consequently, eliciting testimony about O'Brien's review of the
other recordings was a "fair response to the defendant's cross-
examination" and the "over-all defense strategy." Commonwealth
v. Saunders, 75 Mass. App. Ct. 505, 509 (2009). The judge thus
did not abuse his discretion in denying the defendant's motion
for a new trial on this basis. See Commonwealth v. McCowen, 458
Mass. 461, 479 (2010); Saunders, supra at 510.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Vuono, Shin & Toone, JJ.3),
Assistant Clerk
Entered: May 28, 2024.
3 The panelists are listed in order of seniority.