Commonwealth v. Wynn

677 N.E.2d 710, 42 Mass. App. Ct. 452, 1997 Mass. App. LEXIS 72
CourtMassachusetts Appeals Court
DecidedApril 7, 1997
DocketNo. 95-P-1820
StatusPublished
Cited by6 cases

This text of 677 N.E.2d 710 (Commonwealth v. Wynn) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wynn, 677 N.E.2d 710, 42 Mass. App. Ct. 452, 1997 Mass. App. LEXIS 72 (Mass. Ct. App. 1997).

Opinion

Laurence, J.

Only one issue is pressed on this appeal:

whether the trial judge should have allowed the defendant’s motion, at the close of the Commonwealth’s case, for a required finding of not guilty on an indictment charging that he “did wilfully and maliciously destroy or injure” the property of another, in violation of G. L. c. 266, § 127. The defendant concedes that the Commonwealth’s evidence might have supported a charge of “wanton” destruction of property, which is also proscribed by § 127 but is not a lesser included offense of malicious destruction of property, Commonwealth v. Schuchardt, 408 Mass. 347, 351-352 (1990), and was not here charged. That evidence, the defendant claims, nonetheless failed to establish the essential element of “malice” for the offense actually charged, because it did not show, as it must, that the defendant’s and his coventurers’ conduct was “motivated by ‘cruelty, hostility or revenge.’ ” Commonwealth [453]*453v. Schuchardt, 408 Mass. at 352, quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983). We conclude, however, that the Commonwealth presented sufficient evidence to permit the jury reasonably to infer that the defendant possessed the requisite malicious mental state while present at the scene and participating with his coventurers in the destruction of property.

As is true in most instances where a specific mental state is an element of the crime charged, we must examine “all the facts and circumstances developed at the trial,” Commonwealth v. Casale, 381 Mass. 167, 173 (1980), particularly those bearing on “the defendant’s knowledge of the circumstances and subsequent participation in the offense.” Commonwealth v. Soares, 377 Mass. 461, 470, cert, denied, 444 U.S. 881 (1979). As always on a required finding motion, we not only view that totality of the evidence, both direct and circumstantial, in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979); but we also evaluate the permissible inferences that the jury may draw therefrom, with respect to the elements of the crime charged, by whether they are reasonable and possible, hot whether they are necessary or inescapable. Commonwealth v. Casale, 381 Mass, at 173. Commonwealth v. Azar, 32 Mass. App. Ct. 290, 304-305 (1992). We recognize that, since the line separating mere knowledge of an offense from culpable participation in it “ ‘is “often vague and uncertain^] [i]t is within the province of the jury to determine from the evidence whether a particular defendant [has] crossed that fine.” ’ ‘To the extent that conflicting inferences are possible from the evidence, “it is for the jury to determine where the truth lies.” ’ ” Commonwealth v. Longo, 402 Mass. 482, 487 (1988) (citations omitted). In particular, we are aware that the line between “wanton” destruction of property and “malicious” destruction of property “cannot be located exactly; an approximation must do.” Commonwealth v. Cimino, 34 Mass. App. Ct. 925, 927 (1993).

Applying these principles to the entirety of the Commonwealth’s evidence, we are persuaded that the jury rationally could conclude that the defendant’s conduct was properly located on the “malice” side of that imprecise line. The pertinent evidence supporting that conclusion was as follows. On Veteran’s Day, November 11, 1993, at approximately [454]*4549:30 a.m., the defendant and two cohorts appeared at the front door of 137 Tonawanda Street in the Dorchester section of Boston, a two-story Victorian structure where Angela Anderson, her five children, and her sister resided in the second-floor apartment. Seven or eight young children were playing in the apartment on the school holiday. The three men attempted to gain entrance by pressing the front buzzer and banging on the locked front door. Anderson’s son, who had gone downstairs to see who was outside, had returned to the apartment to inform his mother that a stranger was at the door (he had been able to make out only the top of a man’s head through the curtained glass window at the top of the wooden front door). Anderson went downstairs herself to determine who was at the door but also could see only an unidentifiable head through the glass.

As Anderson opened the front door slightly to get a better look at the visitor, the heavy door was suddenly pushed open, hurling her backwards, and the three men forced their way into the house. The defendant, who wore a bandanna across his face, and a taller man both brandished drawn handguns. The taller man shoved his gun into Anderson’s face and loudly demanded that she “give me the money.” She began screaming in fear. As she continued screaming, one of the men seized her by the chest, and the three intruders pushed and dragged her up the stairs to her second-floor apartment. Having heard the commotion, her son locked the apartment door, yelled to his aunt to call the police, and fled out a rear door as the three invaders reached the apartment door and began banging on it. Without asking Anderson whether she had a key, the taller man began kicking the glass pane in the middle of the door until his foot broke through it. The taller man then reached through the broken window to open the door from inside, and the three men rushed into the apartment. The children inside began screaming and crying and tried to hide in closets and the pantry. Anderson was temporarily left outside the door and continued screaming. One of the men went back for her and dragged her into the apartment by her neck.

The three men began running and rummaging through all the rooms of the apartment. At one point the defendant discovered Anderson’s young daughter hiding in the pantry and put his gun to her head while she screamed in terror. At [455]*455about the same time one of his confederates, encountering a locked closet door, began kicking at it to break it down. His kicks shattered the door, creating a hole through which he peered and spotted a suitcase. He pulled the suitcase out of the closet, tore it open, and proceeded to empty it by throwing its contents (which turned out to be mostly clothes) around the room. One of the men also opened Anderson’s purse and scattered what was contained in it at the entrance to the apartment. The defendant was later arrested with the ninety-four dollars in cash that had been in the purse. One of the men also grabbed a ring from a bureau top. As they were thus engaged in their looting, Anderson (whose continued screams could be heard outside the front door of the house) heard someone yell “police,” and police officers came running up the stairs. The three men fled out the rear of the apartment and through the backyard. The defendant was the only one apprehended by the police, after he had jumped over the rear porch, onto a garage roof, off the roof, and into a nearby yard. In his pockets was discovered the bandanna he had worn as a mask, as well as the ninety-four dollars from Anderson’s purse. He was positively identified by Anderson at the scene as one of the intruders.

In assessing whether a rational jury could find sufficient indicia of either “cruelty” or “hostility” on the part of the defendant and his confederates in the Commonwealth’s scenario (we exclude consideration of the element of “revenge,” which was not presented by the evidence), we are not unaware that the Commonwealth’s case with respect to the requisite mental state must consist of “something more than a deliberate intent to do a wrong.” Commonwealth v.

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Bluebook (online)
677 N.E.2d 710, 42 Mass. App. Ct. 452, 1997 Mass. App. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wynn-massappct-1997.