NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of motor vehicle homicide by negligent operation, in violation of G. L. c. 90, § 24G(b). The Commonwealth's evidence at trial showed that the defendant failed to stop the tow truck he was driving, causing it to collide with a two-door Honda Civic (vehicle) that was stopped at a red light and to kill the rear-seat passenger. At issue is (1) whether the judge erred by precluding the defendant from introducing evidence of modifications made to the vehicle he struck, and (2) whether the judge properly instructed the jury on proximate cause. We affirm.
The defendant was also found responsible of two civil motor vehicle infractions: failing to stop in violation of G. L. c. 89, § 9, and speeding in violation of G. L. c. 90, § 18. He does not challenge either infraction on appeal.
1. Evidentiary rulings. The trial judge allowed the Commonwealth's motion in limine to exclude evidence of the victim's negligence pursuant to Commonwealth v. Guillemette, 243 Mass. 346 (1923). Although in general "the appropriate standard of causation to be applied in a negligent vehicular homicide case under § 24G is that employed in tort law[,]" Commonwealth v. Berggren, 398 Mass. 338, 340 (1986), the exception is that "[i]n criminal cases, as opposed to civil negligence suits, a victim's contributory negligence, even if it constitutes a substantial part of proximate cause (but not the sole cause), does not excuse a defendant whose conduct also causes the death of another." Commonwealth v. Campbell, 394 Mass. 77, 87 (1985). Accordingly, the judge did not abuse her discretion when she excluded evidence of the victim's negligence.
At oral argument, the defendant contended that our case law prohibits the introduction of evidence of the victim's contributory negligence only with respect to the cause of the accident, not with respect to cause of death. This is incorrect. See, e.g., Commonwealth v. Campbell, supra at 87; Commonwealth v. Carlson, 447 Mass. 79, 84 (2006).
The defendant argues, however, that evidence of modifications made to the vehicle should have been admissible not as evidence of the victim's negligence, but as evidence of the actions of a third party, the driver, that constituted an intervening or superseding cause of the victim's death.
The judge did not rule on this issue below. Instead, the judge agreed to revisit the issue of vehicle modifications at the close of trial, based on the evidence adduced at trial. The defendant did not raise the issue again. We therefore review for a substantial risk of a miscarriage of justice. We note, however, that the outcome would not change even if the claim had been preserved.
"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, cert. denied, 534 U.S. 963 (2001). "The general rule is that intervening conduct of a third party will relieve a defendant of culpability for antecedent negligence only if such an intervening response was not reasonably foreseeable." Commonwealth v. Carlson, supra at 84. "This is just another way of saying that an intervening act of a third party that was not reasonably foreseeable in the circumstances would prevent the victim's death from following naturally and continuously from the defendant's conduct." Ibid., quoting from Commonwealth v. Askew, 404 Mass. 532, 534 (1989).
Even if we assume, arguendo, that the modifications made to the vehicle were not reasonably foreseeable, no evidence (either expert or lay) was presented at trial that the modifications had any role in the victim's death. There was nothing to suggest that the modifications "prevent[ed] the victim's death from following naturally and continuously from the defendant's conduct." Commonwealth v. Carlson, supra at 84, quoting from Commonwealth v. Askew, supra at 534. There was no suggestion that the modifications were the sole cause of the victim's death. The judge did not err in allowing the Commonwealth's motion in limine.
2. Jury instructions. At the close of trial, the judge ruled that she would not give an instruction on intervening or superseding causes because no evidence had been presented of either. The defendant argues this was error. Since the defendant did not object below, we review for a substantial risk of a miscarriage of justice, "namely, a 'substantial danger that the jury was misled by [an] erroneous instruction, and that the instruction may have materially influenced their appraisal of the [evidence].'" Commonwealth v. Carlson, supra at 86, quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
The judge instructed as follows:
"The defendant caused the death if his actions directly and substantially set in motion the entire chain of events that produced the death. The defendant is the cause of the death if his actions produced it in a natural and continuous sequence, and the death would not have occurred without the defendant's actions."
This instruction was correct. See Commonwealth v. Carlson, supra at 86. The evidence presented at trial did not justify a different or additional instruction.
The defendant also argues that the absence of an instruction on intervening or superseding cause created structural error, because without a more detailed instruction on causation, the judge did not instruct on all elements of the offense. To the contrary, the judge properly instructed the jury on all four elements of motor vehicle homicide by negligent operation, including the fourth element, "causing the death of a person." See Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 309 (2008), quoting from Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 137 (2006) ("The elements necessary to find criminal culpability for vehicular homicide . . . are: (1) operation of a motor vehicle, (2) upon a public way, (3) recklessly or negligently so as to endanger human life or safety, (4) thereby causing the death of a person").
The panelists are listed in order of seniority.
Clerk Entered: June 5, 2015.