Opinion
20-P-1033
03-22-2022
COMMONWEALTH v. Kevin OTTO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from the tragic deaths of Calvin Mattocks and Robert Higgins following the collapse of a trench in which they were working on Dartmouth Street in Boston. The defendant was convicted of two charges of manslaughter in violation of G. L. c. 265, § 13, and one count of witness intimidation in violation of G. L. c. 268, § 13B. His motion at trial for a required finding under Mass. R. Crim. P. 25, as amended, 420 Mass. 1502 (1995), was denied. After trial, the defendant filed a motion to reconsider that ruling, which was also denied. He now appeals. We affirm.
The case was tried, jury waived, before a judge of the Superior Court. Viewing the evidence in the light most favorable to the Commonwealth, as we are required to do, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the finder of fact, in this case the judge, could have found the following: The defendant and the company of which he was president, Atlantic Drain Services Company, were hired to excavate the street and sidewalk outside 12 Dartmouth Street to install a new sewer line to the building. On the sidewalk above the trench was a fire hydrant. Below the hydrant, a pipe extended vertically approximately six or seven feet down into the ground where it met an elbow joint. The elbow joint made a forty-five degree turn into a lateral pipe which ran parallel to the sidewalk for approximately eight feet where it then connected to the water main. The connection to the main was made by a mechanical joint.
Prior to the day of the accident, the trench had been excavated to a point two or three bricks' width away from the hydrant. On all the days of excavation prior to the day of the accident, Kristopher Barahona was the foreperson on the site. On the day of the accident, however, the defendant directed the excavation work and operated a "boom" (also known as a "vactor"), an industrial vacuum attached to a truck above the trench. The boom sucked the dirt out of the trench. On the morning of the accident, the defendant instructed a worker to remove all the bricks near the hydrant. He had workers widen the trench and remove the dirt from underneath the hydrant. Although there was evidence in the record that when installed the hydrant might have been required to include features called tie rods, metal arms anchoring the hydrant water pipe to the water main, and a thrust block, granite or concrete block propping the hydrant up in the soil, it would have been clear to anyone excavating that these elements were absent. The Commonwealth's expert, Francis Leathers, also opined that neither tie rods nor a thrust block would have prevented the hydrant pipe failure in this case.
At the defendant's direction, the workers dug all the way over and removed the dirt from underneath the hydrant, which weighed 1,120 pounds. They had removed enough dirt underneath the elbow pipe, which was exposed, that a five-foot nine-inch worker could walk underneath it. Despite Occupational Safety and Health Administration (OSHA) regulations, the defendant had not used any cave-in protection, nor had he supported the hydrant, an appurtenant structure that, under the regulations, must be supported.
While Higgins and Mattocks were in the trench and the defendant operating the boom, soil from near the bottom of the hydrant collapsed down and covered them to their waist. Seconds later the top piece of the hydrant dropped down. The hydrant fell towards the open trench, the pipe came away from the trench wall and burst, and within seconds water filled the entire trench. Despite efforts by several workers and the defendant, Higgins and Mattocks could not be rescued. They both died of asphyxia at the scene.
Discussion. The defendant argues that there was insufficient evidence to establish that his actions were the proximate cause of the victims' deaths, or that his actions were wanton and reckless. We disagree. We see no error in the trial judge's conclusion in his postjudgment order on the defendant's motion to reconsider his motion for a required finding under Mass. R. Crim. P. 25 that the evidence was sufficient to support a conclusion by the finder of fact "that it was the undermining of the hydrant, vertical pipe, and elbow joint that caused the initial collapse of the soil below the lateral pipe near the elbow and then the hydrant to drop. This, in turn, caused the over rotation of the mechanical joint where it connected the lateral to the water main, such that the joint failed and the main burst, filling the trench with water flowing under sustained pressure."
This conclusion, that the accident was proximately caused by the undermining of the hydrant by the defendant without providing support for it, was supported not only by evidence of the OSHA regulation prohibiting the undermining of such appurtenant structures without support, 29 C.F.R. § 1926.651(i)(3) (1994), but also by the testimony of the Commonwealth's expert that the factor of safety was reduced to zero by the removal of soil, which had reduced the effective strength and lateral confinement on the soil that remained, and that the vertical bearing capacity resistance of the soil too had been reduced to zero. Indeed, he opined that the result of the removal of the soil would be "a failure." In particular, he explained that the lack of horizontal and vertical soil support caused the hydrant pipe to shift sideways towards the trench with sufficient force to separate the lateral hydrant pipe from the water main, allowing the excavation to flood.
The defendant argues that he was prejudiced by the "surprise theory of liability" on which he was convicted -- that he failed to support the hydrant during the excavation -- because the theory relied on by the Commonwealth during the entire proceedings was "the failure to shore the trench." We agree with the Commonwealth that the bill of particulars gave the defendant adequate notice of the charges against him.
The defendant also argues that there was insufficient evidence to support a conclusion that his conduct was wanton or reckless. Because the defendant was convicted of involuntary manslaughter, the Commonwealth was required to prove either that a reasonable person in similar circumstances would recognize the conduct in which he engaged was reckless, or that he himself was subjectively aware of the reckless nature of his conduct. In this case, the evidence suffices to support both a finding that a reasonable person in his circumstances would have recognized his conduct as reckless and that he himself subjectively did.
To begin with, the OSHA regulations that he was required to follow made clear the danger of undermining an appurtenant structure without providing adequate support. Likewise, there was testimony from the OSHA compliance officer Michael Grover that reasonable steps could have been taken to provide adequate support to the hydrant. Specifically, he testified that "if one is using timber shoring, for cave-in protection [and] that timber shoring is up tight to the appurtenant structures to brace the utility, then that would be one method and means to brace the utility." We think that someone in the business of excavating trenches such as the one in this case, and aware, as they were required to be, of the OSHA regulation, would find the risk of death or great bodily injury from a falling hydrant to be "reasonably apparent." Sandler v. Commonwealth, 419 Mass. 334, 336 (1995).
As to the defendant's subjective understanding of the risks, the evidence is, if anything, even stronger. The defendant had been cited before for OSHA violations, including failing to support appurtenant structures, and was compelled to take a "30-hour OSHA [construction safety] class" because of these violations. Although we do not know the contents of the training he was required to undergo, he was well aware of the OSHA regulation requiring support of an appurtenant structure like the hydrant. Furthermore, upon the occurrence of the catastrophic events that day he repeatedly stated to the police that he did not see the elbow joint exposed. The trial judge concluded that those statements were false, an attempt to deflect blame for the tragedy, a finding that was supported by the testimony of other witnesses that the elbow was exposed and that they had seen it. Viewing the evidence in the light most favorable to the Commonwealth, the defendant repeatedly falsely stating that he had not seen the elbow joint is sufficient evidence of his knowledge of the grave risk presented by the exposure of the elbow joint through his undermining it without support.
The defendant's final argument is that statements he made to the police should have been suppressed because he was not provided Miranda warnings. The facts surrounding the statements are as follows: The defendant was asked by officers responding to the scene to accompany them to the police station for an interview and he agreed. If he declined, he would have been interviewed at the scene. He was driven to the station in the back of a police cruiser but was not handcuffed, otherwise restrained, or placed under arrest. No Miranda warnings were ever given. The interview lasted approximately ten minutes and the officers never stated nor implied that the defendant was a suspect. During the interview the defendant stated that he and his employees had planned to put the trench protection in the trench within twenty minutes of when the trench collapsed but that, in his opinion, this would not have prevented the collapse. He also stated that it was the victims, not him, who were operating the boom to vacuum the trench, that the hydrant pipe was not "exposed or in any danger," and that there was "[n]o elbow. I didn't see no elbow.... I didn't see any elbow." After ten minutes the defendant was told he was free to go and did in fact leave. The motion judge concluded that the defendant was not in custody, and found no evidence that "the officers acted in such a way to intimidate or coerce [the defendant] into making the statement."
Although the interview took place at the police station, we see no error in the motion judge's conclusion that the interview was voluntarily given and that the defendant was not in custody. It is well settled that there are circumstances in which despite the fact that an interview takes place at a police station, an individual may not be in custody and Miranda warnings may not be required. See, e.g., Commonwealth v. Rosa-Roman, 485 Mass. 617, 625 (2020). We see no error in the motion judge's conclusion that this was one such circumstance.
Judgments affirmed.
Order denying motion to reconsider affirmed.