Commonwealth v. Diane E. Gilligan.

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

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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

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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.

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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

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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

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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.

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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."

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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.

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