Opinion
15-P-810
02-05-2016
COMMONWEALTH v. CHRISTOPHER M. VARRASO.
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
After a bench trial, the defendant was convicted of negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a), and operation of an uninsured motor vehicle, G. L. c. 90, § 34J. On appeal, he challenges the sufficiency of the evidence as to the charge of negligent operation of a motor vehicle and contends that the judge infringed upon his right to a fair trial by asking his own questions of a Commonwealth witness. We affirm.
The defendant also was found responsible for operation of an unregistered motor vehicle.
Facts. Viewing the evidence in the light most favorable to the Commonwealth, the judge could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
At around noon on November 25, 2013, the defendant, while driving his uninsured and unregistered Chevrolet Cavalier, left his driveway and pulled onto Grove Street, a busy two-way State highway in Braintree. The defendant crossed over the center line into the opposite lane of traffic and hit a delivery truck head on. The driver of the truck lost control and struck a sports utility vehicle (SUV) driven by Ann Conklin. The truck then came onto the sidewalk and didn't stop until it crashed into a Dunkin' Donuts store.
Braintree police Officer Brendan McLaughlin was dispatched to the scene where he spoke with Conklin, the truck driver, and the defendant. The defendant said that he took his eyes off the road because he dropped "something" and when he looked up he was on the wrong side of the road. The defendant also told the officer he had "made a mistake" and had "screwed up."
The defendant's theory of the case presented through cross-examination and his own testimony was that, even though he caused the accident, he was not driving negligently at the time. Rather, as he testified, he looked down because he dropped a lit cigarette and when he looked up it was too late to avoid colliding with the truck.
Discussion. 1. Sufficiency of the evidence. The defendant argues that the evidence of negligent operation was insufficient because there was no specific evidence that he was speeding or driving erratically before the accident occurred. In support of this argument, he cites Aucella v. Commonwealth, 406 Mass. 415, 418 (1990), where the court, quoting from Callahan v. Lach, 338 Mass. 233, 235 (1958), held, "The mere happening of an accident between a motor vehicle and a pedestrian, where the circumstances immediately preceding it are left to conjecture, is not sufficient to prove negligence on the part of the operator of the vehicle" (emphasis supplied).
The essential elements of negligent operation of a motor vehicle are: (1) operation of a motor vehicle, (2) upon a public way, (3) recklessly or negligently so that the lives or safety of the public might be endangered. Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004). Only the third element is disputed here.
The present case is different from Aucella, and we conclude that the evidence was sufficient to persuade a rational trier of fact that the defendant was operating negligently. Here, the circumstances which led to the accident were not left to conjecture. To the contrary, the defendant admitted that he failed to pay attention to oncoming traffic. That the defendant claims the reason for his inattention was that he dropped a lit cigarette is of no consequence. It suffices to say that the judge "could permissibly reject the defendant's theory and conclude that the defendant, through inattention," was negligent. Commonwealth v. Merry, 453 Mass. 653, 663 (2009).
2. The judge's questioning of an eyewitness. Conklin, the driver of the SUV which was struck by the delivery truck, testified for the Commonwealth. During direct examination, she stated that after she was hit she "saw Christopher walking away across the street." After a brief cross-examination, the judge asked Conklin to identify "Christopher," to which she replied, "The defendant." Although he did not object to this exchange, the defendant now claims that the judge acted improperly. We disagree.
It is well settled that a judge may properly question a witness to clarify evidence so long as the questions are not partisan in nature. See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74 (2005). Here, the question asked by the judge did not demonstrate partisanship or bias and, more fundamentally, the defendant's identity was not a contested issue. We therefore conclude that there was no error, let alone an error that created a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2016.