Susan Underwood for the defendant.
Roger H. Randall, Assistant District Attorney, for the Commonwealth.
[27 N.E.3d 416] A jury convicted the defendant of malicious destruction of property valued under $250. The defendant appeals, asserting that the judge erred by (1) denying the defendant's pretrial motion to dismiss the indictment; (2) allowing an unpreserved videotape recording in evidence; (3) giving the jury an improper spoliation instruction; (4) allowing testimony regarding the defendant's prior incidents of protective custody; and (5) denying the defendant's motion for a required finding of not guilty. We affirm.
We rehearse such facts as the jury would have been
warranted in finding. On August 17, 2011, at or around 7:25 p.m., the defendant
entered the Avon police station; he was drunk. He requested assistance in
collecting a debt from his son. After observing the defendant's intoxicated
condition, an officer placed him in protective custody. This was the third time
in that same week the defendant had been placed in protective custody. The
defendant was put in an empty cell; he was the only occupant in the cell area.
At or around 10:45 p.m., the defendant, who had fallen asleep, awoke and began banging on his cell door with his hands and feet. A dispatcher heard the banging and went to check on him. When she arrived, the defendant requested medical attention and the dispatcher informed him that she would contact the fire department, which was next door. The dispatcher went back to her office and called the fire department. The defendant, much louder than before, again banged his foot against the cell door.
Two firefighters arrived and waited with the dispatcher for an officer to let them in the cell area. While they waited, the dispatcher observed the defendant on the monitor lighting his bedroom linen on fire. As smoke and flames filled the cell, the defendant nurtured the fire by adding blankets to it as it grew. The dispatcher contacted the sergeant on duty and he, along with the firefighters present, went to the cell area.
[27 N.E.3d 417] The sergeant took the defendant out of the smoke-filled cell and handcuffed him as the firefighters extinguished the fire. He was then placed under arrest and put in another cell for the night. The defendant did not request any further medical attention.
a. Grand jury indictment.
Courts generally " will not inquire into the competency or sufficiency of the evidence before the grand jury." Commonwealth
v. Robinson, 373 Mass. 591, 592, 368 N.E.2d 1210 (1977), quoting from Commonwealth
v. Galvin, 323 Mass. 205, 211-212, 80 N.E.2d 825 (1948). An exception to this general rule is made in situations where the grand jury is presented with insufficient evidence to establish " the identity of the accused ... and probable cause for arrest." Commonwealth
v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). This standard is much lower than that required for a finding of guilt. See Commonwealth
v. Moran, 453 Mass. 880, 886, 906 N.E.2d 343 (2009).
The grand jury watched the surveillance videotape depicting the defendant banging on his cell and lighting his bed linen on fire. They heard testimony that the defendant was the only person in the cell area and that he informed the arresting officer that he had found matches on the cell floor. This evidence was more than sufficient to ...