Opinion
15-P-1105
03-30-2017
COMMONWEALTH v. Kenneth L. ROCK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant, Kenneth L. Rock, was convicted of motor vehicle homicide by negligent operation. See G. L. c. 90, § 24G(b ). On appeal, he contends that the evidence was insufficient to establish the elements of negligence and proximate cause, that the prosecutor's closing argument was improper, and that the judge failed to give the instruction on reasonable doubt required by Commonwealth v. Russell , 470 Mass. 464 (2015). We affirm.
Background . Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. See Commonwealth v. Latimore , 378 Mass. 671, 676-677 (1979). In the early morning hours of August 28, 2013, the defendant, while driving his Jeep Cherokee on West Main Street in North Adams, was involved in a single-car accident in which the passenger, his daughter, was fatally injured. Approaching the location of the accident from the west (as the defendant did), West Main Street is straight, with two lanes in each direction, and leads into a left-hand curve. The road was "in decent condition," was lit by street lights, and the weather was clear. The posted speed limit was thirty-five miles per hour.
The defendant entered the curve "at a high rate of speed," and "either he didn't react to the curve or was unable to." He struck a telephone pole, part of which was "sheared off," and the passenger door of the Jeep was "ripped off." The Jeep then "bounced back and forth off the [retaining] wall," before veering off to the left, ejecting the victim. "[S]till at a substantial speed," the Jeep crossed the road and hit a telephone pole along the eastbound lane.
The defendant told the North Adams police officer who responded to the accident that "he had a couple of beers earlier in the day." The officer noticed an odor of alcohol coming from the defendant. The defendant also told the emergency medical personnel on the scene that "[h]e had consumed three to four beers."
Massachusetts State police Trooper John Pinkham, the Commonwealth's accident reconstruction expert, calculated the Jeep's speed in two different ways. First, he calculated that based on the amount of energy required to shear off part of one telephone pole, cross the street, and hit the second pole with the force that it did (excluding the momentum lost in the Jeep's impact with the retaining wall), the defendant's initial speed as he drove into the turn must have been at least fifty-two miles per hour. Pinkham also calculated the defendant's average speed using video and audio footage from a security camera located on a property near the accident scene, which happened to capture the defendant's travel along West Main Street. Using this method, Pinkham calculated that the defendant's average speed was sixty-three miles per hour. Pinkham also testified that the "critical curve speed"—the maximum speed at which a vehicle could navigate the curve successfully—was "approximately 65 miles [per] hour."
Pinkham inspected the Jeep after the collision. Its brakes "appeared in good working condition," as did the tires. The condition of the Jeep's brake light filament indicated that the brakes had not been applied before the collision.
Discussion . 1. Sufficiency of the evidence . The defendant moved for a required finding of not guilty both at the close of the Commonwealth's case and at the close of all the evidence. He contends that the judge erred in denying these motions.
We consider whether any jury viewing the evidence "in the light most favorable to the Commonwealth and drawing all inferences in favor of the Commonwealth," could find each element of the crime beyond a reasonable doubt. See Commonwealth v. Merry , 453 Mass. 653, 660 (2009). The elements necessary to prove motor vehicle homicide by negligent operation are "(1) operation of a motor vehicle, (2) upon a public way, (3) ... negligently so as to endanger human life or safety, (4) thereby causing the death of a person." Commonwealth v. Burke , 6 Mass. App. Ct. 697, 699 (1978). At trial, the defendant contested only the negligence and causation elements.
The parties stipulated that the defendant "was operating a motor vehicle on West Main Street in North Adams; [and] that West Main Street in North Adams is a public way."
"[S]imple negligence, determined by the same standard employed in tort law, suffices for a conviction of vehicular homicide under G. L. c. 90, § 24G(b )." Commonwealth v. Angelo Todesca Corp ., 446 Mass. 128, 139-140 (2006). Negligence "is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which ... the person of ordinary caution and prudence ought to exercise under the particular circumstances." Id . at 137 (quotation omitted).
The standard of causation to be applied in a negligent vehicular homicide case also derives from tort law. See Commonwealth v. Berggren , 398 Mass. 338, 340 (1986). "Conduct is a proximate cause of death if the conduct, ‘by the natural and continuous sequence of events, causes the death and without which the death would not have occurred.’ " Commonwealth v. Carlson , 447 Mass. 79, 83 (2006), quoting from Commonwealth v. Rosado , 434 Mass. 197, 202 (2001).
Here, there was evidence that the defendant had been drinking alcohol prior to driving, and that he was driving anywhere from seventeen to twenty-eight miles per hour over the posted limit. See Commonwealth v. Campbell , 394 Mass. 77, 83 n.5 (1985) ("Although evidence of violation of a statute, such as the one governing the speed limit, is not negligence per se, it can validly be considered, in combination with other evidence, in determining negligence"); Commonwealth v. Woods , 414 Mass. 343, 350 (1993) ("Evidence that the defendant was consuming alcohol prior to driving with [a] passenger[ ] late at night is patently relevant to whether the defendant exercised reasonable care while driving"). From the evidence that the road was well lit and in good condition and that the defendant did not apply his brakes as he reached the curve in the road, the jury could infer that the defendant had been, at best, inattentive. See Campbell , supra at 83.
The defendant testified that his daughter had punched him "[w]ith a closed fist in the face" just as he was "starting the turn." The jury could choose not to believe this testimony. See Campbell , 394 Mass. at 83.
The defendant's operation of his Jeep in this manner "set in motion a chain of events that resulted in the victim's death." Carlson , supra . "In these circumstances, the jury could properly conclude, beyond a reasonable doubt, both that the defendant was negligent and that his negligence had caused the victim's death." Commonwealth v. McGrath , 60 Mass. App. Ct. 685, 692 (2004).
2. The prosecutor's closing . The defendant claims that the prosecutor's argument that "[h]e was angry and he was going fast and he can't make the corner because of the speed " (emphasis supplied) was "without any foundation in the record." Because the defendant did not object, should we find error in the prosecutor's statement, we consider only whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Pearce , 427 Mass. 642, 646 (1998). "[W]e consider the prosecutor's remarks in the context of his entire argument, the evidence at trial, and the judge's instructions to the jury," Commonwealth v. Christian , 430 Mass. 552, 564 (2000), and are mindful that the absence of objection by the defendant "is some indication that the tone [and] manner ... of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro , 395 Mass. 354, 360 (1985).
"[P]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Drayton , 386 Mass. 39, 52 (1982). They may not, however, "misstate the evidence or refer to facts not in evidence." Commonwealth v. Lewis , 465 Mass. 119, 129 (2013).
The prosecutor's argument was a fair inference based on the evidence. Pinkham did not see "scuffing yaws" in the road, which, in his opinion, ruled out the possibility that the defendant "was going too fast and couldn't make the curve." Nevertheless, Pinkham clearly considered speed a factor in the accident, stating that the defendant "was going so fast that either he didn't react to the curve or he was unable to." The prosecutor permissibly suggested to the jury that the defendant was unable to navigate the curve, not for the technical reason that he was exceeding the "critical curve speed," but because of the combination of alcohol, inattention, and excessive speed. As the argument was proper, no substantial risk of a miscarriage of justice occurred.
3. Jury instructions . The judge instructed the jurors on reasonable doubt using the traditional Webster charge. See Commonwealth v. Webster , 5 Cush. 295, 320 (1850). Although the trial here was held almost four months after the Supreme Judicial Court decided Commonwealth v. Russell , 470 Mass. 464 (2015), the judge did not give the "modernized version" of Webster required by that decision. See id . at 465, 477-478. The defendant argues that the judge's omission of the Russell language clarifying the meaning of the phrase "moral certainty" warrants reversal of his conviction. The Commonwealth concedes, and we agree, that the omission of the Russell language was error. Because the defendant did not object, we review this error to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas , 430 Mass. 8, 15 (1999).
If either party had called the judge's attention to the Supreme Judicial Court's recent exercise of its "inherent supervisory power to require a uniform instruction on proof beyond a reasonable doubt that uses more modern language," Russell , 470 Mass. at 477, and had the judge then persisted in using the traditional language, we would have a different case.
--------
"For more than a century, the Webster charge has served as the gold standard against which instructions on reasonable doubt have been measured." Russell , supra at 475. The judge's use of this "time-tested instruction," Commonwealth v. Rosa , 422 Mass. 18, 29 (1996), does not create a substantial risk that the jury applied "a standard of proof lower than due process requires" or convicted the defendant "on factors other than the government's proof." Russell , supra at 469, quoting from Victor v. Nebraska , 511 U.S. 1, 16 (1994).
Judgment affirmed .