Opinion
14-P-1969
01-06-2016
COMMONWEALTH v. MARK FICHERA.
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
The defendant, Mark Fichera, appeals from his conviction of operating a motor vehicle recklessly or negligently in violation of G. L. c. 90, § 24(2)(a). The sole issue raised by the defendant is whether the evidence presented by the Commonwealth was sufficient to permit the jury to conclude that he operated his vehicle "negligently so that the lives or safety of the public might be endangered." Ibid., as appearing in St. 1936, c. 434, § 1. For the reasons that follow, we affirm.
The defendant's general notice of appeal also encompassed his conviction of assault and battery on a police officer arising from the same incident, but he has advanced no argument regarding that crime. We therefore affirm that conviction without further discussion.
Background. On April 8, 2013, at approximately 10:00 A.M., Lawrence police Officer Alberto Inostroza was traveling in his personal motor vehicle on South Union Street. Inostroza is a twenty-six-year veteran with the Lawrence police department. This specific stretch of road is a one-lane street (in each direction), divided by a double yellow line, and has numerous stores and offices on either side. The street is also heavily trafficked, and was so on this occasion.
Officer Inostroza stopped his vehicle to allow two tractor-trailers to enter and exit a facility, and five or six other vehicles stopped behind him. As he waited, the defendant drove an automobile past the line of stopped cars on the right-hand side "at a high rate of speed," forcing Officer Inostroza to turn his vehicle to the left to avoid a possible collision. The defendant then "flew in between" the tractor-trailers as one was moving into, and the other was moving out of, a parking lot adjacent to the roadway, causing them to stop suddenly. Officer Inostroza estimated the defendant's speed at fifty miles per hour, using a formula involving landmark interval distance and time elapsed. Officer Inostroza followed the defendant to a gasoline station, identified himself as a police officer, and placed the defendant under arrest.
Discussion. In reviewing the sufficiency of the evidence, this court determines "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-78 (1979) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
To prove a violation of § 24(2)(a), the Commonwealth is not required to prove more than ordinary negligence. Commonwealth v. Rand, 363 Mass. 554, 563 (1973). In making this determination, the jury are permitted to consider all of the circumstances relating to the defendant's operation of the vehicle. Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925). The Commonwealth is not required to prove that anyone suffered property damage or physical harm, but only that "the defendant's conduct might have endangered the safety of the public" (emphasis supplied). Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007). Also, the Commonwealth is not required to prove excessive speed. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006). The crime may be committed "although no other person is on the street." Commonwealth v. Constantino, 443 Mass. 521, 527 (2005).
In this case, a twenty-six-year police veteran observed the defendant driving "at a high rate of speed," estimated at fifty miles per hour, during a time when the traffic was "heavy," passing numerous cars on the right-hand side within the same lane of traffic, and forcing Officer Inostroza to move his vehicle to the left to avoid a potential collision. The defendant also "flew in between" two tractor-trailers, causing them to "stop[] abruptly." This evidence was sufficient to warrant the jury in concluding that the defendant operated his vehicle negligently so as to endanger the lives or safety of the public.
At trial, the defendant objected to the methodology used by Officer Inostroza to estimate the speed of the defendant's vehicle. However, the defendant's disagreement with it is not a basis for the exclusion of such evidence. It is settled that a police officer who observes a moving vehicle is permitted to testify to its estimated speed. Peterson v. Foley, 77 Mass. App. Ct. 348, 351 (2010).
Judgments affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 6, 2016.