Opinion
No. 15–P–584.
09-20-2016
COMMONWEALTH v. Maurice A. SOL.
After a one-day bench trial in District Court, the defendant, Maurice A. Sol, was found guilty of wanton destruction of property over $250, G.L. c. 266, § 127. He argues that the motion judge erred in denying his motion to dismiss the complaint and that the trial judge erred in denying his motion for a required finding of not guilty, that his counsel was ineffective for failing to object to certain testimony, and that the trial judge erred in allowing certain testimony.
We recite the facts as the trial judge could have found them. The defendant was placed on probation with a condition that he wear a GPS monitoring bracelet. When the bracelet was placed on the defendant, a probation officer explained to him the terms and conditions relating to the bracelet, as well as the terms of his probation. The defendant also received a charging device for the bracelet and a beacon that assisted in monitoring the defendant's curfew. The defendant signed an equipment disclosure form setting forth the value of the bracelet, $900, and a condition that if he were to destroy or lose it, he would be held responsible for reimbursement of its value. The form also stated there could be criminal consequences from the loss or destruction of the bracelet. Once probation was complete, the defendant was required to return the bracelet along with the accompanying accessories.
The bracelet required daily charging.
The defendant maintained that he was outfitted with an allegedly defective GPS monitoring bracelet that vibrated continuously. However, the bracelet was designed to vibrate when a defendant broke curfew or did not properly charge the bracelet. The defendant claimed that due to the constant vibration, he did what he had to do to stop the vibration. As a result, the bracelet gave off a signal to the electronic monitoring center that there was a problem with the bracelet. When the probation officer examined the bracelet, he noticed that the reset button had been removed with a tool such as a knife or screwdriver. Due to the damage, the bracelet could not be repaired.
The defendant first contends that the complaint should have been dismissed as there was no probable cause that he destroyed property “of another” or that he acted wantonly. “All that is required [to establish probable cause for a complaint] is reasonably trustworthy information sufficient to warrant a prudent man in believing that the defendant had committed an offense.” Commonwealth v. Bell, 83 Mass.App.Ct. 61, 63 (2013) (quotation omitted).
“Whoever destroys or injures the personal property ... of another ... shall, ... if such destruction or injury is wanton, ... be punished by a fine of fifteen hundred dollars or three times the value of the property so destroyed or injured, whichever is greater, or by imprisonment for not more than two and one-half years.” G.L. c. 266, § 127, as appearing in St.1982, c. 229, § 2.
The motion judge had before him only the July incident report. He did not err in declining to credit the defendant's argument that the bracelet becomes the property of the wearer when a defendant is outfitted with a GPS monitoring bracelet as a condition of probation.
The record supports a showing of probable cause that the defendant acted wantonly in disabling the bracelet. “[W]anton destruction [of property] requires only a showing that the actor's conduct was indifferent to, or in disregard of, probable consequences.” Commonwealth v. McDowell, 62 Mass.App.Ct. 15, 22 (2004), quoting from Commonwealth v. Armand, 411 Mass. 167, 171 (1991). The record supports a reasonable inference that disabling the vibration on the device by removing the reset button, as the defendant did, would result in significant damage to the bracelet.
The defendant makes essentially the same arguments to support his position that the evidence is insufficient for his conviction and that the trial judge should have allowed his motion for a required finding. These arguments also fail. The evidence was sufficient to support a finding that the defendant intentionally tampered with his GPS bracelet, causing the reset button to break off, and that the GPS bracelet was not his property. The defendant was placed on notice by the disclosure form that the bracelet was the sole property of an electronic monitoring company, that he was responsible for all damage to the bracelet, and that he was required to return the bracelet at the end of his probation term.
Under Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), we view the evidence in the light most favorable to the Commonwealth. The trial judge shall deny a motion for a required finding “if all the circumstances including inferences (that are not too remote according to the usual course of events) are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of (guilt) beyond a reasonable doubt.” Id. at 676 (quotation omitted).
The defendant also claims insufficient evidence of the value of the GPS bracelet. The record supports the finding that the bracelet is valued at $900, and that it cannot be repaired. The judge did not err in denying the defendant's motion for a required finding.
Hearsay testimony on this issue was admitted without objection at trial during the defendant's cross-examination of the probation officer, who stated that he had spoken with the electronic monitoring representative who examined the bracelet. The probation officer also testified that in the bracelet's damaged condition, it was inoperable.
Instead of using the preferred procedure, a motion for a new trial, the defendant argues on direct appeal that counsel's assistance was ineffective. Commonwealth v. Ramos, 66 Mass.App.Ct. 548, 552 (2006). He claims his counsel's failure to object at three different times during the probation officer's testimony was behavior that fell “measurably below that which might be expected from an ordinary fallible lawyer” such that it caused him to lose an otherwise available substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
This court can determine a claim of ineffective assistance of counsel on direct appeal where “the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Anderson, 58 Mass.App.Ct. 117, 124 (2003) (quotation omitted).
The first two statements here at issue pertain to the location and purpose of the reset button on the GPS bracelet, and were based on the officer's personal observation and knowledge; they were not expert opinion testimony. See Commonwealth v. Cintron, 435 Mass. 509, 521 (2001). Lay witnesses may provide opinion testimony that is “rationally based on [their] perception” and is “helpful to a clear understanding of the witness's testimony or in determining a fact in issue ... [that is] not based on scientific, technical, or other specialized knowledge.” Mass. G. Evid. § 701 (2016). Based on the record, we conclude that counsel did not act manifestly unreasonably in failing to object to this testimony.
The third statement was elicited by defense counsel during cross-examination; the probation officer replied with a nonresponsive answer that the electronic monitoring representative who examined the bracelet told him the bracelet could not be repaired. From the record, we deduce that counsel's line of questioning was proper and was pursued in order to determine whether the probation officer had personal knowledge of the device's repairability and the value of the bracelet in its damaged condition.
Were we to conclude that counsel's performance was ineffective by failing to strike the hearsay answer, we would also conclude that the testimony was nonprejudicial. Other nonhearsay testimony was sufficient to support a finding that the value of the bracelet alone was $900, that the bracelet was totally inoperable, and that it needed to be completely replaced. Contrast Commonwealth v. Deberry, 441 Mass. 211, 212–213 (2004) (where the defendant punched a hole in a wall, the value of the property was the amount to repair the wall and not the value of the wall or the entire house), and Commonwealth v. Kirker, 441 Mass. 226, 228–229 (2004) (where the defendant slashed car tires, the value of the property was the replacement cost of the tires and not the car). “[I]n certain circumstances a seemingly minor type of damage may effectively destroy the value of an entire property.” Deberry, supra at 222 n. 20. We conclude there was no basis for any of the defendant's claims of ineffective assistance of counsel.
Where the “defendant alleges that [counsel's] failure to preserve an issue for appeal stems from ineffective assistance of counsel, as this defendant has, we do not evaluate the ineffectiveness claim separately. If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice—ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not.” Commonwealth v. Randolph, 438 Mass. 290, 296 (2002).
The defendant further objects to the admission of other testimony of the probation officer on the grounds that the probative value of the testimony was substantially outweighed by the testimony's unfair prejudice, requiring reversal. We disagree. “Judges are afforded great latitude and discretion in determining whether any prejudicial effect that the proffered evidence might have ... is outweighed by its probative value.” Commonwealth v. Wallace, 70 Mass.App.Ct. 757, 765 (2007) (quotation omitted). Furthermore, “judges in jury-waived trials are presumed to know ... the law.” Commonwealth v. Watkins, 63 Mass.App.Ct. 69, 75 (2005). The judge did not abuse his discretion in admitting the testimony of the defendant's probation officer.
Prosecution: “And in your experience, would they [the electronic monitoring center] ever tell a person to take action on their own to fix the issue.”
Defense counsel: “Objection.”
Probation officer: “Definitely not.”
Defense counsel: “Objection.”
The court: “Overruled.”