Opinion
16-P-217
05-11-2017
COMMONWEALTH v. Joseph TROTSKY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of motor vehicle homicide by negligent operation, G. L. c. 90, § 24G(b ). On appeal, he claims the evidence was not sufficient to sustain his conviction and the judge incorrectly instructed the jury on the elements of the offense. We affirm.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On October 19, 2011, just before 7:00 p.m., the defendant was operating a Honda Pilot sport utility vehicle (SUV) on Belmont Avenue in Springfield. It was dark and the road was wet. There were cars parked on the right side of the road. Jahaira Blanco was in her vehicle behind the defendant traveling in the same direction. She observed the defendant maneuver around a vehicle in front of him which appeared to be making a left-hand turn at the intersection of Belmont Avenue and Oakland Street. After braking briefly and bypassing the turning vehicle, the defendant's SUV accelerated.
Blanco observed the victim, Edward Bruso, age seventy-nine, "getting ready" to cross the street. She saw that the victim was eating food from a styrofoam plate and that he was wearing white shoes with reflectors. Blanco slowed down when she saw the victim preparing to cross the street. She was approximately two to three car lengths behind the defendant's SUV when she saw it strike the victim. Blanco did not see the defendant's brake lights illuminate or his vehicle skid before impact. She heard a bang and observed the victim slide across the street after being thrown off of the SUV. Following the collision, Blanco saw the defendant exit the SUV while talking on his cellular telephone. She heard the defendant say into the telephone, "I have to let you go because I just hit somebody."
The defendant's cellular telephone records showed that he sent or received eighty-six telephone calls and ninety text messages that day. In the twelve minutes immediately preceding his 911 call, the defendant was on the telephone for eight and one-half minutes. In particular, the defendant received a cellular telephone call at 6:52 p.m. which ended less than one minute before the defendant first dialed 911 at 6:54 p.m. The defendant's vehicle was equipped with a Bluetooth audio system that allowed him to talk by telephone without using his hands.
An expert in accident reconstruction opined that the defendant's vehicle was traveling between thirty-four and forty-three miles per hour at the point of impact. The speed limit at that location was thirty miles per hour. It was the expert's opinion that speed was a factor in the accident. He estimated that the defendant's vehicle carried the victim approximately ninety-six feet before the victim's body was thrown off of the vehicle. The defendant's vehicle came to a stop 260 to 290 feet from the point of impact. According to the expert, the unusually long accident scene indicated a delayed response in braking.
The defendant testified that he never saw the victim. He denied talking by telephone or texting from the time he entered the intersection of Belmont Avenue and Oakland Street until after he struck the victim.
Discussion. 1. Sufficiency. When reviewing the sufficiency of the evidence, "we ask whether, viewing the evidence in a 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. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, 378 Mass. at 677. Homicide by motor vehicle under G. L. c. 90, § 24G(b ), may be committed in one of three ways: (1) operating while under the influence of intoxicating liquor; (2) operating recklessly; or (3) operating negligently. Commonwealth v. Williams, 73 Mass. App. Ct. 833, 840 (2009).
Here, the defendant was charged with motor vehicle homicide by negligent operation. The essential elements of 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. Geisler, 14 Mass. App. Ct. 268, 276 (1982). Ordinary negligence is enough to establish motor vehicle homicide, Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 46 (2016), and "[t]he appropriate standard of causation to be applied in a negligent vehicular homicide case under § 24G is that employed in tort law." Commonwealth v. Angelo TodescaCorp., 446 Mass. 128, 141 (2006), quoting from Commonwealth v. Berggren, 398 Mass. 338, 340 (1986). Causation is established when "the resulting injury is within the scope of the foreseeable risk arising from negligent conduct." Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 45 (2009).
The defendant contends that the evidence was insufficient to establish that his negligence caused the collision and subsequent death. More specifically, he argues that to establish causation in this case the Commonwealth was obligated to present evidence that the victim's death would not have occurred if the defendant had been driving at the speed limit or not using his telephone in the minutes leading to the collision, and that absent expert testimony on those subjects, the evidence was insufficient to establish the defendant's negligence caused the victim's death. In considering this issue, we bear in mind that "[s]ubject to those comparatively rare situations when a court is able to draw the outer limits, questions of proximate cause are in the province of the jury." Commonwealth v. Angelo Todesca Corp., supra.
While it is undisputed that the victim entered Belmont Avenue from between two parked cars rather than using a crosswalk at an intersection, contributory negligence, even if it constitutes a substantial part of proximate cause, does not excuse a defendant's conduct that causes the death of another in the criminal context, unless the victim is the sole cause of the accident. Id. at 142. Negligent conduct may be "a proximate cause of death if, ‘in the natural and continuous sequence,’ it produces the death, and the death would not have occurred in its absence." Commonwealth v. Osachuk, 43 Mass. App. Ct. 71, 73 (1997), quoting from Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980).
Here, there was evidence from which a reasonable jury could have found that the defendant was distracted by use of his cellular telephone. While there was no direct evidence that the defendant was participating in a telephone conversation at the moment of impact, the telephone records established that his cellular telephone had been in use for eight and one-half of the twelve minutes preceding the accident, with his last call ending less than one minute before he dialed 911 to report the accident. From this evidence, considered together with Blanco's testimony that she observed the defendant talking on his cellular telephone when he exited his vehicle, the jury could reasonably have inferred that the defendant's attention was diverted from the roadway by use or attempted use of his cellular telephone. Such an inference is further supported by Blanco's testimony that she was able to slow down when she saw the victim preparing to cross the street, and that she observed the defendant's vehicle strike the victim without braking.
Furthermore, there was evidence that the defendant was traveling at an excessive speed for the conditions. It was dark and the road was wet. The area was congested with people and vehicles. The defendant's view was obstructed by vehicles parked on either side of the road. Considering all of this evidence in the light most favorable to the Commonwealth, the jury could have reasonably concluded that the collision with the victim, and his ensuing death, were foreseeable risks of exceeding the speed limit on a busy and wet city street, while using, or attempting to use, a cellular telephone.
While we agree that the evidence in this case was not overwhelming, the question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. at 677, quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). We are satisfied that the standard was met in this case.
2. Instruction. Prior to trial, the defendant submitted a proposed jury instruction that defined negligent operation to endanger the public as negligence that "creates a high degree of likelihood that substantial harm will result to another person." Defense counsel acknowledged that his proposal went beyond the ordinary negligence instruction, and was closer to a definition of recklessness. The judge declined to give the proposed instruction. Rather, he instructed the jury pursuant to model jury instruction 5.160 of the Model Jury Instructions for Use in the District Court (2009). In relevant part, the jury was instructed that "the Commonwealth must prove beyond a reasonable doubt ... that the defendant drove negligently in a manner that might have endangered the lives or safety of other people." He then further instructed the jury on the concept of negligence. On appeal, the defendant assigns error to the judge's failure to instruct the jury as he proposed. We disagree.
Because the defendant timely objected, "we review to determine if there were error and, if so, whether it was reversible error." Commonwealth v. Simpson, 434 Mass. 570, 587 (2001). "The failure to give a requested jury instruction is reversible error only if the requested instruction is (1) substantially correct, (2) was not substantially covered in the charge given to the jury, and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense." Commonwealth v. Adams, 34 Mass. App. Ct. 516, 519 (1993) (citation and emphasis omitted).
As we have discussed, homicide by motor vehicle under G. L. c. 90, § 24G(b ), may be committed in one of three ways: (1) operating while under the influence of intoxicating liquor; (2) operating recklessly; or (3) operating negligently. Commonwealth v. Williams, 73 Mass. App. Ct. at 840. Here, the Commonwealth proceeded only on a theory of negligence. We are not persuaded by the defendant's claim that "the plain language of the statute demonstrates that not all negligence is sufficient for conviction." The defendant's arguments regarding legislative history and statutory construction notwithstanding, the Supreme Judicial Court has said that "[a] finding of ordinary negligence suffices to establish a violation of the statute." Commonwealth v. Jones, 382 Mass. 387, 389 (1981). See Commonwealth v. Carlson, 447 Mass. 79, 85 (2006) ; Commonwealth v. Guaman, 90 Mass. App. Ct. at 46. Accordingly, we discern no error in the judge's use of the model instruction based on motor vehicle homicide by ordinary negligence.
Judgment affirmed.