Opinion
16-P-898
07-24-2017
COMMONWEALTH v. William GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, William Gomez, after a jury trial, was convicted of four charges: negligent operation of a motor vehicle while under the influence of intoxicating liquor so as to endanger the public causing serious bodily harm, G. L. c. 90, § 24L(1) ; operating a motor vehicle while under the influence of intoxicating liquor with a child under fourteen in the vehicle, G. L. c. 90, § 24V(a ) ; wantonly or recklessly permitting bodily injury to a child in his care and custody, G. L. c. 265, § 13J(b ) ; and wilfully misleading a police officer in a criminal investigation, G. L. c. 268, § 13B. He now appeals his convictions, alleging multiple errors by the judge and the prosecutor. He also challenges the sufficiency of the Commonwealth's evidence. For the reasons stated below, we affirm.
Background. 1. The Commonwealth's case. The jury were warranted in finding the following facts. On January 13, 2012, the defendant drove his car to pick up his friend, Luis Parraga, at Parraga's place of work. The defendant and Parraga had been friends for eight or nine years, having met through mutual friends, and the defendant once lived with Parraga for eight months. They frequently got together to drink alcohol. Parraga, an immigrant from Ecuador, did not own a car, did not have a driver's license, and did not know how to drive. He had never driven the defendant's car.
On that day, the defendant and Parraga drove to the home of Antonio, the defendant's brother. The defendant's five year old stepson, Alex, was also present. Although Alex had a booster seat that was available for the defendant to use when he had Alex with him, the defendant did not have the booster seat in his car on that day. The defendant drove to Antonio's home, where he, Parraga, and Antonio consumed "a lot" of alcohol.
A pseudonym.
Sometime later, the defendant abruptly left his brother's house after an argument. The defendant placed Alex in the back seat of his car, Parraga got in the front passenger seat, and the defendant drove away. Parraga, who was unfamiliar with the area, testified that the defendant was driving "very fast" down a street and that the car hit a pole. As the rear door on the driver's side was the only door that could be opened, Parraga and the defendant exited the car through it. Parraga, an undocumented immigrant, was scared of being arrested, and told the defendant he was going to leave. The defendant told him to "just go." Parraga was stopped by police a few blocks away; he told them he left the scene of the accident because he was nervous. He also told them that the defendant was driving, giving officers the defendant's name.
Police officers and emergency medical technicians (EMTs) responded to the scene after 911 calls from people living in the neighborhood. The defendant, whose speech was slurred and who smelled of alcohol, told the EMTs that he was not driving. He did not clearly answer their questions about Alex or how the accident had happened. He responded "no" when asked if Alex had been restrained prior to the accident. A responding officer also noticed a strong odor of alcohol coming from the defendant. Asked if he had been driving, the defendant responded, "No, the other guy," and did not give Parraga's name.
Immediately following the crash, Alex had visible injuries to his forehead and began to vomit. He was taken by ambulance to Boston Children's Hospital, where scans showed a blood clot in his head and injuries to his bowel. During the ambulance ride, Alex was disoriented and vomited continuously. He was admitted to the intensive care unit and immediately taken to the operating room. Due to a hole in his intestine, pieces of his bowel needed to be removed. He was also placed on a breathing machine. After being released a week later, Alex was readmitted for further emergency surgery due to a bowel blockage that had developed. During that time, Alex was unable to eat food or drink liquids. The physician testified that Alex's injuries were "life-threatening" and that "he would have died had he not had surgery."
2. The defendant's case. The defendant testified in his own defense. He stated that he had known Parraga for three or four years, had lived with him for a period of time, and that they worked together. He claimed that on the day of the crash, he told Parraga, whom he had let drive his car previously, to drive because Parraga seemed less drunk than he was. He stated that it appeared that Parraga was awake prior to the crash, but the crash was so sudden that the defendant could not tell if Parraga was sleeping in the moments just before. The defendant testified that after the crash, Parraga wanted to leave, so he told Parraga to "just go" because he was focused on Alex. He told the responding officer that the driver was "the other guy that was with me," but did not provide Parraga's name. He stated that when asked who the driver was, he gave the police officers Parraga's nickname, and told one officer that the driver's name was Luis. He also admitted that he was negligent for not calling his wife to pick him up at his brother's house, and for not having an appropriate booster seat for his stepson to sit in.
Discussion. 1. Sufficiency of the evidence. The defendant argues that the Commonwealth did not present sufficient evidence to prove (1) that he was the driver of the vehicle, (2) that Alex suffered a serious bodily injury, and (3) that he wilfully intended to mislead the police.
Because the defendant's argument is limited to the claim that the judge erred in denying his motion for a required finding of not guilty at the end of the Commonwealth's case, "we consider only the evidence introduced up to the time that the Commonwealth rested its case, and the defendant first filed his motion [ ]." Commonwealth v. Kelley, 370 Mass. 147, 150 (1976). "The sole question raised ... is whether ‘there was sufficient evidence of the defendant's guilt to warrant the submission of the case[ ] to a jury.’ " Ibid., quoting from Commonwealth v. Altenhaus, 317 Mass. 270, 271 (1944). We must determine "whether the evidence, in its light most favorable to the Commonwealth ... is sufficient ... to permit [any rational trier of fact] to infer the existence of the essential elements of the crime charged." Ibid., quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). "Inferences drawn from the evidence are permitted if reasonable, possible, and not unwarranted because [the inferences are] too remote." Commonwealth v. Murphy, 31 Mass. App. Ct. 901, 904 (1991), quoting from Commonwealth v. Cordle, 404 Mass. 733, 739 (1989).
a. Operating under the influence of intoxicating liquor. To establish the defendant's guilt for operating under the influence in a negligent manner causing serious bodily injury, the Commonwealth was required to prove that the defendant "(1) operated a motor vehicle, (2) upon a public way, (3) while under the influence of intoxicating liquor, (4) operated a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered, and (5) by such operation so described caused serious bodily injury." Commonwealth v. Flanagan, 76 Mass. App. Ct. 456, 463 (2010). See G. L. c. 90, § 24L(1). As noted above, the defendant challenges the sufficiency of the Commonwealth's evidence as to the first and fifth elements.
We need only discuss the defendant's insufficiency claims as they relate to this charge, as the elements disputed by the defendant—that he was operating the vehicle, and that Alex's injuries cannot be considered "serious bodily harm"—are also present in the other charges. See G. L. c. 90, § 24V(a ) (operating under influence with child under fourteen in vehicle); G. L. c. 265, § 13J(b ) (wantonly or recklessly permitting bodily injury to child in his care).
Regarding the first element, operation, there was direct evidence, through Parraga's testimony, that the defendant was driving the vehicle prior to the crash. In addition, there was other evidence presented from which a jury could infer that the defendant was driving, namely that it was the defendant's car, that Parraga did not have a license and did not know how to drive, and that the crash occurred near the defendant's brother's house, an area with which Parraga was unfamiliar. Insofar as the defendant argues that the only evidence that he was the driver was presented through the testimony of Parraga, who he alleges had "reasons to lie," and points to evidence he claims proves that Parraga was the driver, his argument is misplaced. The jury were entitled to credit Parraga's testimony. See Commonwealth v. Martino, 412 Mass 267, 272 (1992).
In addition, the evidence was sufficient to satisfy the Commonwealth's burden of proof regarding the fifth element of G. L. c. 90, § 24L(1), requiring the Commonwealth to prove that someone suffered serious bodily injury. Serious bodily injury is an injury that "creates a substantial risk of death ... or the loss or substantial impairment of some bodily function for a substantial period of time." G. L. c. 90, § 24L(3), inserted by St. 1986, c. 620, § 17. Here, there was testimony that Alex would have died of his injuries without surgical intervention. On the way to the hospital, Alex vomited continuously, requiring medical intervention to keep his airway and breathing unobstructed. In addition, after the surgery, Alex's gastrointestinal system was unable to function normally for nearly a month, during which time he was unable to eat or drink. Thus, the evidence of serious bodily injury was sufficient to submit that issue to the jury. See, e.g., Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 162-164 (2005) (broken jaw requiring feeding tube for six weeks considered serious bodily injury; injury need not be permanent); Commonwealth v. Baro, 73 Mass. App. Ct. 218, 219-220 (2008) (loss of sight for six weeks considered serious bodily injury).
b. Impeding a criminal investigation. With regard to a violation of G. L. c. 268, § 13B, under the "misleading" prong, as relevant to this case, the Commonwealth must prove that the defendant "(1) wilfully mis[led] (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with a criminal investigation." Commonwealth v. Morse, 468 Mass. 360, 370 (2014). See G. L. c. 268, § 13B(1)(c ), as amended through St. 2006, c. 48, § 3. "Misleading" is defined as "knowingly making a false statement, [or] intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement." Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013), quoting from 18 U.S.C. § 1515(a )(3) (2006). Such specific intent can be ascertained inferentially from a defendant's affirmative misrepresentations to law enforcement authorities. See id. at 372-373 (defendant intentionally misled police by lying about his location when global positioning system monitor showed him elsewhere); Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 47 (2011) (defendant told police he was shot from far away by unknown person when gunshot residue revealed shooter was in close proximity to defendant).
In this case, sufficient evidence was presented to allow a jury to infer that the defendant possessed the specific intent to mislead the police investigation into the accident. Immediately following the accident, the defendant told Parraga, the only witness who could corroborate his story, to leave the scene. His first words to emergency responders was that he was not driving. When police arrived, the defendant told them that "the other guy" was driving, but did not provide them with Parraga's name. Despite officers asking multiple times, the defendant gave evasive or incomplete answers to their questions of the driver's identity, giving only Parraga's nickname or his first name. These were "affirmative misrepresentations the jury could reasonably conclude were made to send the police off course." Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489, 506 (2015). Contrast Morse, supra at 374-375 (insufficient evidence of specific intent where only evidence was defendant's negative answer to officer's confusing question). Indeed, as a result of the defendant's statements, Parraga was held in custody for over two months before the defendant was indicted. Therefore, the evidence of the defendant's intent to mislead the police investigation was sufficient to allow the jury to consider it.
The parties stipulated that Parraga, who was initially charged as the driver, had the charges against him dismissed after he testified before the grand jury.
2. The prosecutor's closing argument. The defendant claims that during her closing argument, the prosecutor improperly vouched for witnesses, misstated the evidence, and invited the jury to find facts not in evidence. Because there was no objection at trial, we review this claim of error to determine if the remarks created a substantial risk of a miscarriage of justice. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160 (2010).
A closing argument must be based on the evidence and the fair inferences drawn from the evidence. See Commonwealth v. Pettie, 363 Mass. 836, 840 (1973). See also Mass. G. Evid. § 1113(b)(2) (2017). Remarks made during closing argument should be considered within the context of the entire argument, the evidence presented during the trial, and the judge's instructions to the jury. See Commonwealth v. Barros, 425 Mass. 572, 581-582 (1997).
Here, the prosecutor's remarks did not result in a substantial risk of a miscarriage of justice. The prosecutor argued that Parraga "spoke honestly when he told you, ‘Yup, I bought a name, so I could work,’ " and that an investigating detective "testified truthfully and to the best of his ability." While the prosecutor should have avoided these brief remarks, her suggestion that Parraga spoke honestly was made in response to an argument about Parraga's credibility previously made by defense counsel. See Commonwealth v. Anderson, 411 Mass. 279, 286 (1991). In addition, the prosecutor's characterization of the detective's testimony as truthful was intended as argument that he did not seek to provide more information that what he actually knew. See Commonwealth v. Sanders, 451 Mass. 290, 297 (2008) (arguing that trooper's testimony was "absolutely honest" not improper vouching). Furthermore, in context, the remarks were insignificant. The prosecutor's suggestion that Parraga "spoke honestly" was solely referencing his admission that he bought an identity so that he could work, while the detective was a nonpercipient witness whose testimony largely consisted of his routine investigation of the car and the accident scene.
Defense counsel, in his closing argument, argued that "Mr. Parraga is lying."
Earlier, defense counsel's cross-examination sought the detective's opinion on the cause of the crash based on the evidence gleaned from his investigation. The detective responded that there wasn't enough evidence to determine what happened. On redirect examination, the detective stated that his opinion, after speaking with the responding officers, was that the crash was caused by an impaired driver. On recross examination, defense counsel briefly focused on the detective's reliance on the statements of other officers when giving this opinion.
The defendant also claims that the prosecutor misstated certain evidence. During her closing argument, the prosecutor stated that the defendant was "mad" when he left his brother's house, that he was "speeding" prior to the crash, and that the defendant told police that Parraga was the driver so that the defendant would have "someone to blame" for the damage and Alex's injuries. These were not misstatements of the evidence, but rather were all fair inferences that a jury could make based on the evidence presented at trial. Compare Commonwealth v. Coren, 437 Mass. 723, 731-732 (2002). Defense counsel, who was in the best position to evaluate the remarks, made no objections or any requests for additional jury instructions. See Commonwealth v. North, 52 Mass. App. Ct. 603, 610-611 (2001). Furthermore, the judge instructed the jury not to consider closing arguments as evidence, to decide the case based solely on the evidence, and that the jury were the sole and exclusive judge of the facts. Therefore, "[w]e are confident that the prosecutor's statements did not make a difference in the jury's conclusion." Commonwealth v. Auclair, 444 Mass. 348, 360 (2005).
3. Jury instruction on lesser included offense. The defendant's next argument is that the judge erred by giving the jury an instruction on the lesser included offense of driving negligently so as to endanger the public. See G. L. c. 90, § 24(2)(a ). He argues that there are only two lesser included offenses to § 24L(1), and that instructing the jury on this third offense was error. We disagree.
"A crime is a lesser included offense only if all the formal elements of the lesser crime are comprised within the greater crime.... If the lesser crime requires proof of an additional fact that the greater crime does not, then it is not a lesser included offense of the greater crime." Commonwealth v. Murray, 51 Mass. App. Ct. 57, 60 (2001). On the "operating recklessly or negligently" element of § 24L(1), the defendant was charged with operating a motor vehicle "negligently so that the lives or safety of the public might be endangered." On the lesser included offense, the judge instructed the jury that the Commonwealth must prove the defendant "operat[ed] a motor vehicle on a public way negligently so as to endanger the lives and safety of the public." Where, as here, the defendant was charged with violating § 24L(1) only under a theory of negligent operation, § 24(2)(a ) was properly instructed as a lesser included offense, as each element of the lesser included offense was comprised within the greater offense. See Commonwealth v. Rivet, 30 Mass. App. Ct. 973, 974 n.1 (1991) (conviction under § 24 [2][a ] set aside by trial judge as lesser included offense of § 24L [1] conviction).
See also Flanagan, 76 Mass. App. Ct. at 462. In Flanagan, the defendant claimed that she was subjected to double jeopardy after being convicted of both § 24L(1) and § 24(2)(a ), arguing that § 24(2)(a ) was a lesser included offense of § 24L(1). This court rejected that claim, stating that because the defendant was charged with reckless operation in violation of § 24(2)(a ), and negligent operation in violation of § 24L(1), each offense contained an element that the other did not. See id. at 462-463. Here, the defendant was charged with negligent operation in violation of § 24L(1), and the judge instructed the jury on the lesser included offense on the negligent operation theory as well.
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4. Tape recorded jury instructions. The defendant's next claim of error relates to the judge providing the jury with a tape recording of the jury instructions. As this claim was not preserved at trial, we review it for a substantial risk of a miscarriage of justice. See Commonwealth v. Almele, 474 Mass. 1017, 1019 (2016). There was no error. The defendant misstates the requirements of Commonwealth v. Baseler, 419 Mass. 500 (1995), claiming that the judge must instruct the jury to consider the recording in its entirety and that all instructions are equally important, in order to avoid "potentially prejudicial overemphasis" on a particular instruction. However, any potential for overemphasis may be avoided by cautioning the jury to "consider the whole charge in reaching their verdict." Id. at 505. The judge's instructions here assured that the jury would do so. The jurors were instructed that they should "not ignore any of [the] instructions" and should not "give special attention to any one instruction." Additionally, they were charged that they should consider "all [the] instructions as a whole" and that no one instruction should be given "greater weight" than any other. There was no need for the judge to repeat these same instructions upon giving the recorded instructions to the jury. See Commonwealth v. Redmond, 357 Mass. 333, 342 (1970). Furthermore, the defendant has not argued, much less shown, how he was prejudiced by the absence of the instruction at issue. Thus, even if he had shown error, he would not have shown a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass, 290, 298 (2002).
5. Parraga's alleged statement. Finally, the defendant devotes one page of his forty-eight page brief, with no meaningful citation to authority, to his argument that the judge erred in not allowing him to testify regarding Parraga's alleged statement, "I don't know. I think I fell asleep," which the defendant contends is an admission by Parraga that he was driving the vehicle. "Because this claim is not supported by cogent reasoning or citation to relevant authority, ... we deem the argument insufficient and the issue waived." Commonwealth v. DiRenzo, 52 Mass. App. Ct. 907, 909 (2001). See Commonwealth v. Gray, 423 Mass 293, 296 (1996) ; Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Judgments affirmed.