Opinion
20-P-856
04-04-2022
COMMONWEALTH v. Bradford CASLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, after a Superior Court jury trial, of two counts of negligent motor vehicle homicide and one count of negligent operation to endanger. He argues that the judge erred (1) in refusing his requested jury instruction on his "defense" of sudden medical emergency and (2) in failing to instruct the jury that the occurrence of an accident is not by itself evidence of negligence. He further argues that (3) the judge's imposition of fifteen-year probationary terms was unreasonable and (4) the negligent operation conviction is duplicative of the negligent motor vehicle homicide convictions. We conclude that the defendant is entitled to relief only on his final claim. We therefore affirm the motor vehicle homicide convictions, but we reverse the judgment on the negligent operation charge, set aside the verdict on that charge, and order entry of a judgment dismissing that count of the indictment.
Background. The Commonwealth offered evidence that on March 1, 2016, at about 6:00 P.M. , the defendant, who has multiple sclerosis (MS), was driving his sport utility vehicle (SUV) on Chestnut Street in Newton while speaking with a friend on a hands-free telephone call. The defendant suddenly told his friend, "I have to go," and ended the call. The defendant's SUV approached the intersection of Chestnut and Washington Streets, traveling very rapidly. Its two left wheels crossed over the double yellow line. The SUV swerved around the cars that were stopped on Chestnut Street waiting for the light to change. Once in the intersection, the SUV struck the front of one vehicle on Washington Street and the back of another, mounted a curb, and then went through the front wall of the Sweet Tomatoes pizza restaurant. The defendant's SUV struck and killed two customers of the restaurant and injured several employees.
When emergency personnel arrived, the defendant told a police officer that his SUV "had accelerated on its own" and that he had not lost consciousness but had no memory of going through the intersection or crashing into the restaurant. An emergency medical technician (EMT) evaluated the defendant shortly after the accident and found him to be "alert and oriented" but also "a little frantic." The defendant told the EMT that "he was approaching the intersection, tried stopping, was unable to, crashed, swerved around some cars that were in front of him, [and] crashed into the pizza place." The defendant also told the EMT that he suffered from MS, but, when asked if he thought that his MS "may have played a role in the accident," he responded "no." After an investigation, police determined that the accident was not caused by a mechanical defect, weather, or road conditions; that the SUV had been traveling faster than the speed limit of thirty miles per hour; and that there was no evidence of braking before the crash.
The defendant testified at trial that he had a valid driver's license and handicap placard and that, before the date of the accident, no doctor or other medical professional had ever advised him not to drive. He acknowledged that some months before the accident he had reported experiencing pain in his lower right leg, which at times could be debilitating. He also acknowledged that there were times when he chose not to drive because of his MS symptoms: "If I had pain that day that time, correct, I would not drive. I wouldn't put myself in harm's way or anyone else." The pain could change in the course of a day and could come on in a "blink of an eye." He testified that he was able to recognize the onset of the pain and would stop and pull over. What he experienced just before the accident was different, though: a "very strange" feeling that he "didn't recognize." The engine was racing, "[t]he car was speeding up and I just didn't know what was happening. I just couldn't control it." He testified that he remembered nothing between the time he ended the phone call with his friend and when he woke up in the hospital.
The defendant also offered the testimony of a neurologist qualified as an expert on MS. She testified that, based on her review of the defendant's medical records, he had "secondary progressive" MS and experienced motor dysfunction, cognitive impairment, weakness, paralysis, loss of coordination, abnormal reflexes, fatigue, and numbness. Such symptoms can vary widely from day to day or even minute to minute. The neurologist further testified that a small number of persons with secondary progressive MS, probably five percent, experience "episodic loss of consciousness." She testified that "[m]any patients who have impairments related to MS are not able to safely operate a motor vehicle and yet most of them don't understand this, ... [they] [m]inimize the deficit and aren't aware that they have a problem." She also testified that, although the defendant's medical records reflected his statement that he had not lost consciousness before or during the crash, "he wouldn't have been in a position to know that neurologically."
In closing arguments, the Commonwealth asserted that the defendant had been negligent by choosing to drive on the day in question despite knowing that his MS symptoms -- including his cognitive limitations and his difficulty in controlling his right leg -- could worsen at any moment and interfere with his ability to drive safely. The Commonwealth also argued that there was no evidence the defendant had actually suffered any sudden medical emergency. Instead, the Commonwealth suggested, the defendant had been driving too fast, came upon a line of cars stopped at a traffic light on Chestnut Street, and "panicked." He was able to swerve past the cars stopped on Chestnut Street and thread his way between two cars on Washington Street before crashing into the restaurant. The Commonwealth emphasized that, immediately after the crash, the defendant was conscious, alert, and responsive to questions. Further, his own statements to medical personnel at the scene and in the following days were that he had not lost consciousness or experienced any abnormal symptoms immediately before the crash. The defendant argued that he had not been negligent but had lost control of his SUV due to an MS-related sudden medical emergency that he could not have foreseen.
Discussion. 1. Instructions on sudden medical emergency. The judge instructed the jury that the Commonwealth must prove beyond a reasonable doubt that the defendant operated his vehicle in a negligent manner so that the lives and safety of the public might have been endangered. She then explained negligence in a manner that largely tracked Instructions 3.180 and 5.240 of the Criminal Model Jury Instructions for Use in the District Court (2009) (model instructions), and that the defendant does not challenge.
The judge generally followed Instruction 5.160 of the model instructions (motor vehicle homicide); that instruction incorporates Instruction 5.240 (operating negligently so as to endanger), which in turn incorporates Instruction 3.180 (negligence).
The defendant also requested, however, that the judge give the following instruction: "If you find that there was a sudden and unforeseeable medical disability which afflicted the operator of a vehicle, rendering him unable to control his motor vehicle, that individual cannot be found to be negligent. Thus, the [d]efendant is entitled to a [n]ot [g]uilty verdict." The judge initially agreed to give a version of this instruction that was satisfactory to the defendant. After further consideration, however, the judge instructed as follows:
"In considering whether the defendant operated his motor vehicle negligently you may consider whether a sudden and unforeseeable medical emergency rendered the defendant unable to operate a motor vehicle so that the lives and safety of the public would not be endangered. A sudden medical emergency that demands speedy decision and action may be considered along with all the other circumstances bearing on the question of due care and you must determine whether the defendant acted as a reasonable person would under similar circumstances. However, one whose own negligent conduct has placed him in a position of peril cannot invoke a sudden medical emergency."
The defendant first argues that the instruction erroneously failed to inform the jury that if they found a sudden and unforeseeable medical emergency as described, the defendant could not be found negligent and must be found not guilty. Because he preserved this objection, we review for prejudicial error. In considering the claim, we note that "[t]rial judges have considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration" (quotation and citation omitted). Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). On review, an appellate court "evaluate[s] jury instructions as a whole and interpret[s] them as would a reasonable juror"; the court "do[es] not require that judges use particular words, but only that they convey the relevant legal concepts properly." Id. at 697.
Viewed against these standards, we see no error in the judge's instruction. The defendant cites no case requiring that a jury be instructed on what he terms the "defense" of sudden, unforeseeable medical emergency. The judge's instruction adequately conveyed that the Commonwealth must prove the defendant's negligence beyond a reasonable doubt, and that if the Commonwealth failed to prove any element of the crime beyond a reasonable doubt, the jury must find the defendant not guilty. The judge accurately defined negligence. And she properly instructed the jury that, in determining whether the defendant had operated negligently, they should consider "all of the facts in the situation," including:
The defendant relies on the statement in Carroll v. Bouley, 338 Mass. 625, 627 (1959), that "[b]y the great weight of authority a sudden and unforeseeable physical seizure rendering an operator unable to control his motor vehicle cannot be termed negligence." See Ellingsgard v. Silver, 352 Mass. 34, 36 (1967) ; McGovern v. Tinglof, 344 Mass. 114, 117 (1962). But, notwithstanding the contrary suggestion in Roa v. Roberts, 2007 Mass. App. Div. 114 (July 26, 2007), none of those cases recognized a sudden medical emergency as a "defense" to a negligence claim. Perhaps more importantly, they did not address whether a jury must be instructed that a sudden and unforeseeable medical emergency precludes a finding of negligence. See also Carrel v. National Cord & Braid Corp., 447 Mass. 431, 444 (2006), citing Bonds v. Cummings, 357 Mass. 763, 764 (1970). That North Carolina has recognized a "sudden-incapacitation" defense in civil cases, with the burden of proof on the defendant, is not controlling here. See Word v. Jones ex rel. Moore, 350 N.C. 557, 562 (1999). Nor is State v. Mc Caw, Ohio Ct. App., No. 16202, slip op. at 8-9 (Aug. 1, 1997), which, partly in reliance on an Ohio statute, recognized fainting or momentary loss of consciousness as an affirmative defense in a criminal negligent operation case.
"the defendant's rate of speed and manner of operation, the defendant's physical condition and how well ... he could see and could control his vehicle, the condition of the defendant's vehicle, what kind of road it was and who else was on the road, what the time of day, the weather and the condition of the road were, what any other vehicles or pedestrians were doing and any other factors that you think are relevant."
Particularly given the instruction to consider "the defendant's physical condition and how well [he] could control his vehicle," the judge was not required to give any further instruction that focused the jury's attention specifically on, and gave dispositive weight to, whether a sudden and unforeseeable medical emergency affected the defendant's ability to control his vehicle. The judge certainly acted within her discretion in giving the additional instruction that she did, inviting the jury to consider the sudden medical emergency issue. "It is within a trial judge's sound discretion to decide what parts of the evidence may be referenced in a jury instruction." Commonwealth v. McKinnon, 446 Mass. 263, 268 (2006). But the defendant cites no authority, and we have found none, indicating that such an instruction must go even further and tell the jury that if they find such an emergency (or have a reasonable doubt based on evidence of such an emergency), a defendant cannot be found negligent and must be acquitted. "A judge is not required to instruct the jury on each fact and possible inference." Commonwealth v. Cordle, 404 Mass. 733, 742 (1989), S.C., 412 Mass. 172 (1992).
A reasonable jury would understand that, if a sudden and unforeseeable medical emergency rendered the defendant unable to control his vehicle, that fact could create a reasonable doubt about the defendant's negligence, whereas if the defendant could reasonably foresee that he might have a sudden medical emergency rendering him unable to control his vehicle, and yet he drove anyway, that fact could weigh powerfully in favor of a finding of negligence. As the defendant says in his reply brief, "[w]hether what [he] experienced at the time of the accident was foreseeable ... was a question for the jury." The instructions here left the jury free to consider the issue, along with all other circumstances they considered relevant, in deciding whether the Commonwealth had proved negligent operation beyond a reasonable doubt. No more specific instructions were required.
Moreover, "even if it is true that a defendant is entitled to a requested instruction on his theory of the defense, where a judge refuses to give such an instruction, it is reversible error only if the requested instruction was substantially correct; was not substantively covered in the jury charge; and concerns an important issue such that the failure to give the instruction seriously impaired the defendant's ability to present a given defense" (emphasis added). Commonwealth v. Deane, 458 Mass. 43, 59 n.15 (2010). Here, even assuming arguendo that the defendant has made the first two showings, he, like the defendant in Deane, "does not explain how [the failure to instruct in the terms he requested] seriously impaired [his] right to present [his] defense." Id. The defendant presented ample evidence and closing argument in support of his sudden medical emergency theory. We do not see how the instruction interfered with the jury's ability to view that theory as creating a reasonable doubt about whether the defendant had been negligent.
The defendant also argues that the instruction should have told the jury that the Commonwealth was required to prove, beyond a reasonable doubt, that no sudden and unforeseeable medical emergency had occurred. The defendant acknowledges that this argument was not made to the judge, and so we review to determine whether there was any error that created a substantial risk of a miscarriage of justice.
What we have already said largely disposes of this claim. Even if a sudden and unforeseeable medical emergency precludes a finding of negligence (a question we need not decide), the defendant cites no authority requiring that a jury be told the Commonwealth must disprove the occurrence of such an emergency. It was sufficient that the instructions clearly stated the Commonwealth's burden to prove negligent operation beyond a reasonable doubt and stated that the jury, in determining whether the Commonwealth had proved negligence, could consider whether such an emergency had occurred. The defendant does not suggest that the instructions as given improperly shifted any burden of proof to him. There was no error, and certainly not one creating a substantial risk of a miscarriage of justice, in omitting an instruction on the Commonwealth's burden to disprove the defendant's claimed defense.
The defendant relies on the principle that "[d]ue process requires that the State disprove beyond a reasonable doubt those ‘defenses’ that negate essential elements of the crime charged." Commonwealth v. Robinson, 382 Mass. 189, 203 (1981). Yet, the Robinson court termed this "a somewhat question-begging ... canon." Id. As used by the defendant here, the canon begs the question whether there exists a "defense" of sudden and unforeseeable medical emergency. But even if such a defense exists (a question we need not decide), the defendant would not be entitled to relief, because he has not claimed, let alone shown, that the instructions shifted to him the burden of proving it. See Commonwealth v. Henley, 488 Mass. 95, 132-133 (2021) (even where defendant was entitled to instruction that Commonwealth had burden of disproving defense beyond a reasonable doubt, "absence of such an instruction is prejudicial only where the jury instructions improperly shifted the burden of proof to the defendant"). See also Commonwealth v. Hoose, 467 Mass. 395, 411-413 (2014) ; Commonwealth v. Hakala, 22 Mass. App. Ct. 921, 922 (1986).
2. Instruction on occurrence of accident. The defendant next argues that the judge erred in failing to instruct, in accordance with the model instruction on negligent operation to endanger, that "[t]he fact that an accident occurred is not by itself evidence that the defendant was negligent." As the defendant did not object to this omission, we review to determine whether there was any error that created a substantial risk of a miscarriage of justice.
The quoted language is from a portion of Instruction 5.240 of the model instructions. The instruction continues, "You must examine all the evidence about how the accident happened in order to determine whether any negligence was involved, and if so, whether that negligence was the defendant's." Id.
We are not persuaded that the omission was error. Although this language from the model instruction is no doubt desirable, helpful, and should be given absent some good reason to omit it, the model instructions themselves are not binding on the appellate courts. See Commonwealth v. Martinez, 487 Mass. 265, 274 (2021) ; Commonwealth v. Quinn, 439 Mass. 492, 500 n.14 (2003). Moreover, the defendant cites no appellate decision mandating use of the language at issue.
Regardless, any error did not create a substantial risk of a miscarriage of justice. The basic question is whether we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). Here, we have no such doubt. The Commonwealth sought to prove negligence based not on the mere occurrence of an accident, but on either or both of two theories: (1) the defendant's decision to drive despite knowing that his MS symptoms could interfere with his driving and could worsen at any time, or (2) the defendant's excessive speed and panic, which caused him to lose control. The defendant's theory was that the crash had occurred as a result of a sudden and unforeseeable MS-related medical emergency. We think the jury's attention would have been firmly focused on these issues, not on the mere occurrence of an accident.
The defendant observes that, when instructing on the Commonwealth's alternative theory of reckless (rather than merely negligent) operation, the judge did tell the jury, "The fact that an accident occurred is not by itself evidence that the defendant was reckless." The defendant suggests that the absence of such a statement from the negligence instruction could have led the jury to conclude, by negative implication, that the occurrence of an accident was indeed evidence of negligence. But this was at most a small risk, not a substantial one. First, that the jury found the defendant negligent rather than reckless gives little, if any, indication that the omitted instruction on negligence made the difference.
It was more difficult for the Commonwealth to prove recklessness than negligence; as the judge instructed, the Commonwealth would have had to prove "that the defendant's actions went beyond mere negligence and amounted to recklessness." The jury were not instructed to consider the two theories in any particular order and were not permitted to find both recklessness and negligence. The Commonwealth's closing argument did not use any form of the word "reckless."
Second, and more importantly, the jury were told of the Commonwealth's burden to prove beyond a reasonable doubt that the defendant had operated in a manner that was negligent, defined as "the failure to use that degree of care which a reasonably prudent person would use under the circumstances[,] either by doing something that a reasonably prudent person would not do or by failing to do something that a reasonably prudent person would do under similar circumstances." We think it quite unlikely that a reasonable jury, exercising their common sense, would find that the Commonwealth had met this high burden merely by proving that an accident occurred. We presume that the jury followed the judge's instructions and identified "something" that the defendant either negligently did or negligently failed to do. In sum, any error in omitting the language at issue was not "sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error" (quotation and citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
As defense counsel stated in his closing argument, "We can't judge whether [the defendant] was negligent or reckless in starting to drive by the end result because if we did that then everyone who makes a wrong move or has an accident shouldn't have been driving that day, in theory. And we know that not everyone who is involved in an accident is guilty of a crime. Things happen. Accidents occur."
3. Length of probationary terms. The defendant argues that the judge's imposition of fifteen-year probationary terms was unreasonable and an abuse of discretion. See Commonwealth v. Santana, 489 Mass. 211, 222 (2022) (probation conditions must bear reasonable relationship to goals of sentencing and probation). We are unpersuaded. The fifteen-year terms were a reasonable and appropriate measure to protect public safety. See Commonwealth v. Pike, 428 Mass. 393, 402-403 (1998) (judges have great latitude in imposing conditions of probation, of which one principal goal is protection of public).
On each of the two counts of negligent motor vehicle homicide, the defendant was sentenced to two and one-half years in a house of correction, with two years to serve, the balance suspended for fifteen years, and the sentences to be served consecutively. On the operating to endanger charge, the defendant received a probationary term of fifteen years. In each instance the conditions of probation included that the defendant could not operate a motor vehicle or seek reinstatement of his driver's license.
The defendant now argues that fifteen-year probationary terms were unnecessary to protect public safety because his convictions required the registrar of motor vehicles to revoke his license for fifteen years. See G. L. c. 90, § 24G (d ). The defendant's argument overlooks that the fifteen-year statutory revocation period ran from the date of conviction, see id., whereas the fifteen-year probationary term, at least on the second motor vehicle homicide conviction, began to run only after the defendant served the committed portion of his sentence on that conviction, i.e., approximately four years after the date of conviction. Accordingly, the fifteen-year probationary term will result in the defendant's being prohibited from operating a motor vehicle for approximately four years more than will the statutory revocation.
The defendant's argument also overlooks that the ordinary enforcement mechanism for the offense of driving without a valid license is a full criminal prosecution, requiring proof beyond a reasonable doubt, whereas the effect of the probation imposed here was that any alleged operation of a motor vehicle by the defendant could be adjudicated in a probation violation hearing, which would be less formal and require proof only by a preponderance of the evidence. See Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006). Based on the foregoing considerations, the judge could reasonably have concluded that probation better protected public safety than the mere revocation of the defendant's driver's license.
4. Duplicative convictions. The defendant asserts that his conviction of negligent operation to endanger under G. L. c. 90, § 24 (2) (a ), is duplicative of his convictions of negligent motor vehicle homicide under G. L. c. 90, § 24G (b ). He correctly observes that the former is a lesser included offense of the latter, see Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 128 (2010), abrogated on other grounds by Commonwealth v. Negron, 462 Mass. 102, 105 (2012), and he argues that the convictions here were not based on separate acts. See Kelly, 470 Mass. at 699–700. Because the defendant did not object at trial to the absence of an instruction on separate acts, we review to determine whether "there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts." Id. at 700.
Such a "significant possibility" is present here, where "the prosecutor did not specifically point out which alleged acts corresponded to which charges." Kelly, 470 Mass. at 702. That is, he did not point to one or more acts of negligence as supporting the negligent operation to endanger charge and any separate act or acts of negligence as supporting the motor vehicle homicide charges. To be sure, the Commonwealth had two theories of negligence, involving separate acts or decisions by the defendant. But nowhere did the prosecutor suggest that the MS-related theory related to the charge of negligent operation to endanger, the excessive speed theory related to the charges of negligent motor vehicle homicide, or vice versa. Nor is there any obvious basis in the record to determine that the jury linked any particular theory to any particular charge or charges. That the evidence might have been sufficient to find separate acts supporting the different charges does not eliminate the significant possibility that the jury did not so find. See id.; Commonwealth v. Traylor, 472 Mass. 260, 276-277 (2015) (test is not sufficiency of evidence to support multiple convictions, but whether there is any significant possibility that multiple convictions were based on same act).
We note that a single act of negligent operation could support both convictions under the negligent motor vehicle homicide statute; two victims died, and the statute "proscribes causing death and not the operation of the vehicle." Commonwealth v. Constantino, 443 Mass. 521, 526 (2005). See Commonwealth v. Meehan, 14 Mass. App. Ct. 1028, 1029 (1982).
Conclusion. The judgments of conviction of negligent motor vehicle homicide are affirmed. The judgment of conviction of negligent operation to endanger is reversed, the verdict on that charge is set aside, and a judgment shall enter dismissing that count of the indictment.
So ordered.
affirmed in part; reversed in part