Com. v. Ruddock

• Decision Date: 23 March 1988
• Docket Number: No. 86-1281,86-1281
• Citation: 520 N.E.2d 501,25 Mass.App.Ct. 508
• Parties: , 45 Ed. Law Rep. 1221 COMMONWEALTH v. John L. RUDDOCK.
• Court: Appeals Court of Massachusetts

Page 501

520 N.E.2d 501

25 Mass.App.Ct. 508, 45 Ed. Law Rep. 1221

COMMONWEALTH v. John L. RUDDOCK.

No. 86-1281.

Appeals Court of Massachusetts Hampshire.

Argued April 30, 1987.

Decided March 23, 1988.

Mark Eckstein, Amherst, for defendant.

Charles K. Stephenson, Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and PERRETTA and WARNER, JJ.

PERRETTA, Justice.

On May 1, 1985, there was an anti-apartheid student demonstration at the University of Massachusetts, Amherst. While participating in the demonstration, the defendant damaged a 1984 Plymouth Turismo automobile which belonged to an officer in the university police department. About a week after the incident, another university officer brought a complaint against the defendant under G.L. c. 266, § 127, as appearing in St. 1982, c. 229, § 2, ¹ charging that he caused malicious injury to the car. After a bench trial, the defendant was found not guilty on that charge but guilty of the lesser offense of wanton injury to the car. The defendant then claimed a trial by jury which resulted in a guilty verdict. On appeal, the defendant makes two claims: (1) that he was entitled to a required finding of not guilty, as the Commonwealth failed to meet its burden of proving that he caused injury to the car by reason of wanton conduct; and (2) that the complaint should have been dismissed because it was brought in retaliation for his exercise of his right of free speech. We affirm.

I. The Evidence.

As presented by the Commonwealth, the evidence begins with student demonstrators in front of and in a building housing the office of the university treasurer. They were demanding divestiture of university holdings and investments in South Africa. The university police had difficulty in clearing the building and dispersing the demonstrators. A final warning was given: leave or be subject to arrest for trespass. The demonstrators refused to move and continued their organized protests. Those facts were recited by Philip Cavanaugh, a police officer at the university.

Cavanaugh described how the atmosphere intensified when the university police began to arrest and handcuff students and to place them on a bus. The bus had been parked alongside the building in the event it should become necessary, as it did, to transport demonstrators to the campus police station. Once the bus was full, the driver (also an officer) began the trip to the police station. However, progress was impeded by the remaining demonstrators. Many of them sat in the path of the bus, others threw themselves at it, and one even clung tenaciously to the side-view mirror. At this time, Cavanaugh saw the defendant using a megaphone to encourage the demonstrators in their attempts to prevent the bus from moving.

As the officers cleared the path, student by student, the driver inched forward. Students removed from the path were quickly replaced by demonstrators who had yet to be restrained. Nonetheless, the driver was able to make some progress. When it became apparent that the bus was gaining ground, albeit slowly, the demonstration escalated and some officers were assaulted.

Seeing the defendant with his megaphone, Cavanaugh went over to him and asked that he urge the demonstrators to allow the bus to proceed to the police station so that the students on the bus could alight. The defendant replied, according to Cavanaugh, "I can't help you." Cavanaugh saw no one else with a megaphone.

Faced with this situation, Cavanaugh returned to the bus and told the driver to turn around and go back to his starting point. It was Cavanaugh's plan that this maneuver would "dissipate some of the demonstrators" so that the officers could get the bus into the parking lot at the police station.

Initially the plan met with success. Cavanaugh went ahead to the station to await the bus. The driver was nearly to the parking lot when the demonstrators once again placed themselves in the path of the bus. With forward progress thus blocked, the driver put the bus into reverse and began to back into a driveway to the lot. As Cavanaugh watched, he could hear a voice being broadcast over a megaphone to the demonstrators. The speaker was encouraging their efforts and advising them to remember that the police would be held accountable for their actions.

Several things next happened, but the sequence is not entirely clear from the transcript. Whoever was using the megaphone began to shout that the bus was going to blow up, that gasoline was "sloshing from the bus." When Cavanaugh turned, he saw the defendant, with a megaphone, running across the parking lot towards the bus. The lot was crowded with parked cars. The defendant ran between them until he reached the last one of a row. He jumped over that car, described by Cavanaugh as a "compact car," and as he did so his foot landed on the back corner of the hood on the driver's side. He continued towards the bus and past Cavanaugh, who grabbed him and said: "That was uncalled for. If someone did that to your car, you would raise hell."

There is no dispute that gas spilled from the capless tank of the bus when it experienced any sideways motion. Cavanaugh testified that when he saw the gas spilling, he recognized the potential danger and ordered officers to stand along the side of the bus as the occupants were removed. He testified that, after he gave these orders, he also saw the defendant "stay[ ] with the demonstrators that were trying to block the door of the bus...."

After the bus was emptied and the situation became somewhat calmer, Cavanaugh and another officer went over to the car to look at it closely. Again according to Cavanaugh's testimony, as they were examining the hood, the defendant came up to them and said, "I will apologize for the damage done to that car when the university police apologize for the way that they handled the demonstrators today."

Officer Bromery, the owner of the car, joined the group and asked what was wrong. He looked at the back corner of the hood on the driver's side and saw a dent, four to six inches in circumference, and a scratch, three to four inches in length. He and the defendant exchanged words, the defendant telling him that he had been "concerned about the safety of the students on the bus," ² and Bromery advising the defendant that he should be "concerned about the damage to ... [the] car and the bill he was going to get." Bromery testified that he did not sign a criminal complaint and that the cost of repairing the hood was $270.

According to the testimony of the repairman, that cost was for labor, parts, and repairs. It took two hours to repair the dent, which the repairman described as "soft" and "minor," and to repaint the hood stripes.

Although the defendant presented evidence, the Commonwealth's case did not deteriorate. We, therefore, consider only the evidence discussed above, and we do so in the light most favorable to the Commonwealth. See Commonwealth v. Kelley, 370 Mass. 147, 150 n. 1, 346 N.E.2d 368 (1976); Commonwealth v. Hunter, 18 Mass.App.Ct. 217, 218-219, 464 N.E.2d 413 (1984).

II. Wanton Conduct.

In order to avoid the danger of transforming a simple trespass to property into a crime, courts narrowly construe statutes imposing criminal sanctions for conduct which results in property damage. Under that portion of § 127 bracketed as at note 1, supra, and its antecedents, an injurious act is deemed criminal when it is shown to have been committed with a spirit of cruelty, revenge, or hostility. See Commonwealth v. Walden, 3 Cush. 558 (1849); Commonwealth v. Williams, 110 Mass. 401 (1872); Commonwealth v. Hosman, 257 Mass. 379, 154 N.E. 76 (1926); Commonwealth...