COMMONWEALTH v. SLATCHER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant was convicted of malicious damage to a motor vehicle in violation of G. L. c. 266, § 28 (a). On appeal, the defendant argues that his conviction should be vacated because the trial judge erred by failing to strike a certain statement of a police witness, and by denying his motion for a required finding of not guilty. We affirm.

Background. The jury could have found the following facts. On March 16, 2018, at approximately 5:30 p.m., Kenneth Garrett went to visit Zuleyka Cortez at her workplace, located in a strip mall in Springfield. Garrett and Cortez were friends and had previously been involved in a romantic relationship. Garrett waited in his motor vehicle for Cortez to emerge from the building, and when she did, he saw that she was accompanied by the defendant. The defendant and Garrett were acquainted with one another, but were not friendly. Cortez and the defendant had also been involved in a romantic relationship in the past.

Upon seeing the defendant with Cortez, Garrett drove up to them and said, “What's this all about?” and “She's a whore ․ she's not worth it.” Garrett drove past them, exiting the parking lot, and then returned to drive by Cortez and the defendant again, repeating this circuit three times. The third time that Garrett entered the parking lot, Cortez and the defendant walked toward him and, as Garrett headed toward an exit, the defendant began to chase his vehicle. Garrett heard a “bang” on the back of his vehicle, as if it had been hit with a person's hand or an object. A friend of the defendant arrived and the defendant got into his car. They followed Garrett as he drove down Main Street. When Garrett made a U-turn to change direction, the defendant got out of his friend's car, picked up a large rock from the side of the road, and threw it into Garrett's windshield. The rock struck the driver's side of the windshield, causing the glass to crack. Although the windshield remained mostly intact, some pieces of glass flew into Garrett's face. Garrett reported this incident to the Springfield police department the following day.

Discussion. 1. Police testimony. The defendant argues that the judge erred in denying his motion to strike the testimony of a police detective that referred to Garrett as “a victim of a crime.”² The defendant contends that this statement improperly usurped the jury's role as fact finders in that it asserted both that a crime had been committed and that Garrett was the victim of that crime. Reviewing the judge's denial of the motion to strike for an abuse of discretion and for prejudicial error, we find none. See Commonwealth v. Otsuki, 411 Mass. 218, 234 (1991); Commonwealth v. Hebert, 264 Mass. 571, 576 (1928).

This is not a case where the detective's testimony improperly commented on the defendant's guilt or innocence, or where the use of the word “victim” so permeated the trial as to improperly sway the jury. See Commonwealth v. Cadet, 473 Mass. 173, 180-181 (2015); Commonwealth v. Canty, 466 Mass. 535, 540 (2013). At the beginning of the detective's testimony, he explained that he had reason to meet Garrett because Garrett had been the victim of a crime. There was no further use of the word “victim”; the balance of the detective's testimony concerned the substance of his interview with Garrett and his involvement in the subsequent investigation. We assume that juries have a “certain measure of ․ sophistication.” Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). Taken in context, the jury would have understood that the detective described Garrett as “a victim of a crime” to explain the purpose behind his meeting with Garrett at the police station, not in order to express an opinion as to the merits of the Commonwealth's case.³ See, e.g., Commonwealth v. Drayton, 386 Mass. 39, 47 (1982) (jurors presumed able to understand difference between an accusation and proof beyond a reasonable doubt).

2. Sufficiency of the evidence. The defendant contends that the Commonwealth failed to prove the element of malice beyond a reasonable doubt, arguing that only Garrett's conduct evidenced anger and hostility. We disagree.

We review to determine whether the evidence, viewed in the light most favorable to the Commonwealth, would permit a jury to find “the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Tejada, 484 Mass. 1, 4 (2020), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To prove the element of malice, the Commonwealth must establish that the defendant's act was “motivated by ‘cruelty, hostility or revenge.’ ” Commonwealth v. Armand, 411 Mass. 167, 170 (1991), quoting Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990).

Here, a reasonable fact finder could determine that the defendant acted with malice. The jury heard that the relationship between the defendant and Garrett was unfriendly, and that both men had been involved in past romantic relationships with Cortez. The jury also heard that the defendant chased after Garrett in the parking lot, got into a friend's vehicle to continue chasing him as Garrett drove down Main Street, and threw a rock -- large enough to cause significant damage -- “[r]ight in front of [Garrett's] face through the windshield.” This was sufficient for the jury to conclude that the defendant harbored feelings of anger and hostility toward Garrett, and that the damage the defendant caused to Garrett's motor vehicle was motivated by those feelings, and therefore his actions were malicious. See Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983), quoting Commonwealth v. Hosman, 257 Mass. 379, 384 (1926) (“ ‘something more than a deliberate intent to do a wrong’ must be shown to establish malice”). The judge properly denied the defendant's motion for a required finding of not guilty. See Commonwealth v. Copeland, 481 Mass. 255, 260 (2019).

Judgment affirmed.

FOOTNOTES

2.   The defendant did not file a motion in limine to preclude reference to Garrett as a “victim.”

3.   The judge instructed the jury that a criminal complaint is an “accusation,” not evidence of guilt.