On 4/30/2010 the Appeals court ruled in COMMONWEALTH vs. LEE LANDRY 08-P-1937 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28, that a plugged toilet did not constitute Malicious damage for the purposes of G.L. 266 section 127.
The court in reviewing the case stated “the defendant, appeals from his convictions for operating a motor vehicle after his license had been revoked, malicious destruction of property over $250, and resisting arrest. His appeal is based primarily on claims that (1) the Commonwealth failed to prove the value of the property he destroyed
On January 17, 2007, Dracut police Officer Jeffrey Zanelotti saw Landry drive a motor vehicle through two posted stop signs at a high rate of speed. Zanelotti gave chase, in the process activating his cruiser’s blue lights and siren. Landry refused to stop until he arrived at his home and parked in his driveway.
After Landry parked, Zanelotti told Landry to remain in his vehicle and asked for his license and registration. Zanelotti’s back-up, Officer Quealy, soon arrived at the scene and watched Landry’s vehicle while Zanelotti started to check the vehicle’s registration information. At some point while the registration check was in progress, Landry got out of his vehicle and started walking toward his house, refusing Quealy’s order to stop. When Quealy grabbed Landry and told him to stop, Landry resisted by pulling away. Seeing the struggle, Zanelotti got out of his cruiser and assisted Quealy, but Landry continued to resist. Zanelotti told Landry that if he did not put his hands behind his back, he would spray Landry with a pepper spray. That announcement had no calming effect, so Zanelotti sprayed Landry’s face, causing him to fall to the ground. At that point, the officers applied handcuffs and, although Landry revived sufficiently to resume his struggle, the two officers successfully conveyed him to the Dracut police station.
At the police station, Landry was placed alone in a holding cell. Later, while checking the cell, Zanelotti discovered that Landry had ‘ripped’ a light fixture out of the cell’s ceiling and had ‘stuffed’ the light bulb into the cell’s toilet, causing an overflow.
Dealing first with Landry’s claim that there was insufficient evidence of the value of the damage, we note the jury had before them Zanelotti’s opinion of value, so the evidence was sufficient to support the conviction. The real question, a question Landry also raises, is whether that evidence was properly admitted and, if not, whether its admission without objection created a substantial risk of a miscarriage of justice.
Taking those questions in order, the relevant value was the replacement cost of the light fixture Landry destroyed. See, e.g., Commonwealth v. Kirker, 441 Mass. 226, 229 (2004). Expert testimony on that subject was not required. A lay witness, particularly one who owns the damaged property, may offer an opinion of value based on his ‘familiarity, knowledge and experience’ with the property. Menici v. Orton Crane & Shovel Co.,285 Mass. 499, 503 (1934). See Note to Mass. G. Evid. § 701, at 215-216 (2010). Zanelotti, however, did not own the fixture and there was no evidence of his familiarity with the fixture’s value or the value of comparable fixtures. There was, therefore, no proper foundation for his testimony as to value and that testimony should not have been admitted.
The question thus becomes whether admission of Zanelotti’s value testimony created a substantial risk of a miscarriage of justice or, more precisely, whether ‘we are persuaded that [the testimony] did not ‘materially influence [ ]’ the guilty verdict.’
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). We think that Zanelotti’s unqualified opinion of value did create a substantial risk of a miscarriage of justice because it was the only evidence on an essential element of the Commonwealth’s case.
A felony conviction for malicious destruction of property requires that ‘a value in excess of $250 must be found by a jury beyond a reasonable doubt.’ Commonwealth v. Beale, 434 Mass. 1024, 1025 (2001). See Commonwealth v. Cimino, 34 Mass. App. Ct. 925, 927-928 (1993). Here, there was no photograph of the fixture, before or after the damage. Zanelotti described the fixture as ‘a single light fixture with . . . a metal casing around it . . . that was attached to the ceiling with screws. And it had . . . what would appear almost to be the color of like that type of plexiglass over the top of it,’ an apparent reference to some object in the courtroom. That description provided no basis for the jury to use their common knowledge in determining a value. Contrast Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 642-643 (2003) (holding that there was sufficient valuation evidence for jury to determine that a motor vehicle suffering ‘extensive damage’ would cost more than $250 to replace). Zanelotti’s unqualified testimony was, therefore, the only evidence of value the Commonwealth produced and, thus, the only evidence on that essential element of the charge. On such a foundation, the conviction cannot stand.”
Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 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 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.
This all being said, it was the decision Commonwealth v. Deberry 441 Mass. 211 (2004) that rerwrote the requirements of G.L. 266 127 Malicious destruction of property. The best charge here should have been G.L. 266 126a which is a 3 year felony regardless of the value of the item damaged and also as an aside comes with a 1 yesr mandatory loss of license. If there is some question on the value of the item, its a better charge than the traditional maliscious damage statute.
Attorney Ronald A. Sellon