Opinion
13-P-1966
07-20-2015
COMMONWEALTH v. JOHN COUSINEAU.
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
The defendant appeals from his conviction by a District Court jury of two counts of motor vehicle homicide, alleging that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that his actions were the proximate cause of the decedents' deaths. We affirm.
Background. "Since the defendant challenges the sufficiency of the Commonwealth's evidence, we shall review the facts introduced by the Commonwealth in the light most favorable to the Commonwealth." Commonwealth v. Dunnington, 390 Mass. 472, 473 (1983). At approximately 6:20 A.M. on August 26, 2009, Henry O'Brien and Gregory Butler were traveling south on interstate Route 495 in O'Brien's Honda CRV; O'Brien was driving. Route 495 is a divided highway that runs north and south. The northbound and southbound sections each consist of three travel lanes and a breakdown lane, and are divided by a grassy median. The speed limit on Route 495 is sixty-five miles per hour, and the road recently had been repaved. It was a dry, sunny day and traffic was light at that time.
The defendant also was traveling southbound on Route 495 when witnesses observed his Chevrolet Malibu being operated erratically and weaving within its lane. As the Chevrolet passed the Chelmsford rest area, a witness observed the defendant's head leaning to the left, his eyes apparently closed. The defendant's vehicle continued on, and the witness saw it "shift suddenly within the same lane." Around this time, O'Brien's Honda merged onto Route 495. The Chevrolet began to go down a hill, it gained speed, and then it struck the rear of the Honda. The impact caused the Honda to veer left across the other two travel lanes, over the median, and onto Route 495 northbound. There, the Honda was struck by oncoming traffic, and both Butler and O'Brien were killed.
A criminal complaint issued, charging the defendant with two counts of motor vehicle homicide by negligent operation. At trial, the Commonwealth's accident reconstruction specialist testified that data she retrieved from the Chevrolet's airbag control module indicated no input either to the brake or the gasoline pedal in the seconds before the Chevrolet collided with the Honda. The data also showed that the defendant was traveling seventy-three miles per hour approximately five seconds before the airbags deployed. According to the Commonwealth's expert, the Honda was struck in the right rear by the Chevrolet, "which caused the vehicle to start rotating in a counterclockwise direction veering to the left."
After the Commonwealth rested its case, the defendant moved for required findings of not guilty on the basis that the Commonwealth had failed to establish that he was negligent or that his actions were the proximate cause of O'Brien's and Butler's deaths. The judge denied the motion and, following the defendant's presentation of evidence, the jury returned guilty verdicts on both counts of the complaint.
Discussion. The defendant's sole argument is that the trial judge erroneously denied his motion for required findings of not guilty because the Commonwealth's evidence did not establish that his actions were the proximate cause of O'Brien's and Butler's deaths. "In reviewing the denial of a motion for required findings of not guilty, we must determine 'whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged.'" Commonwealth v. Mejia, 461 Mass. 384, 392 (2012), quoting from Commonwealth v. Linton, 456 Mass. 534, 544 (2010).
General Laws c. 90, § 24G(b), as appearing in St. 1982, c. 376, § 2, provides in part that "whoever operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of homicide by a motor vehicle." To sustain a conviction under this statute, the Commonwealth must prove beyond a reasonable doubt that the defendant's negligence caused the death of another. Commonwealth v. Campbell, 394 Mass. 77, 87 (1985). "[T]he appropriate standard of causation to be applied . . . is that employed in tort law," Commonwealth v. Berggren, 398 Mass. 338, 340 (1986); that is, "a cause, which, in the natural and continuous sequence, produces the death, and without which the death would not have occurred." Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980), quoting from California Jury Instructions, Criminal § 8.55 (4th rev. ed. 1979).
In the light most favorable to the Commonwealth, the evidence established that the defendant's vehicle was swerving within its own travel lane while he appeared to be asleep. The defendant's vehicle moved into the right lane behind the Honda, which was going slower than the seventy-three miles per hour at which the defendant was traveling. The defendant applied neither the brakes nor the gasoline in the eight seconds before the left front of his Chevrolet struck the right rear of the Honda. The impact caused the Honda to veer off to the left, where it crossed the median and emerged on the northbound side of Route 495. The Honda was struck by oncoming traffic, and O'Brien and Butler died.
From this evidence, a jury could conclude beyond a reasonable doubt "that the defendant, without justification or excuse, had not been attentive to the road in front of him during the crucial period when his [Chevrolet] was approaching the [Honda at a high rate of speed] and, hence, had failed to 'exercise that degree of care, diligence and safety that an ordinarily prudent person would exercise under similar circumstances.'" Commonwealth v. McGrath, 60 Mass. App. Ct. 685, 691-692 (2004), quoting from Commonwealth v. Kline, 19 Mass. App. Ct. 715, 720 (1985). "[T]here was evidence that the defendant had a clear view of the road ahead of him but still failed to take any action to avoid hitting the [Honda] with the [front of his Chevrolet]," McGrath, supra at 692, and the evidence easily supports an inference that the Honda would not have left the roadway in the manner that it did, and would not have traveled onto Route 495 north where it was struck by oncoming traffic, had it not been struck by the Chevrolet. "In these circumstances, the jury could properly conclude, beyond a reasonable doubt, both that the defendant was negligent and that his negligence had caused the victim[s'] death[s]." Ibid.
The defendant argues otherwise, stating that the evidence of proximate cause was insufficient because the jury reasonably could infer from the Honda's path and speed, following what he characterizes as a "fender-bender," that O'Brien either failed to engage his brakes or engaged the gasoline instead. This, the defendant contends, was a superseding, intervening act that proximately caused the deaths.
We disagree. There was no evidence at trial regarding the Honda's operation after it was struck from behind by the defendant. The only evidence related to the Honda's postimpact path of travel. There was no evidence that would support an inference that O'Brien did or did not apply the brakes or the gasoline, and even if there was evidence that would support an inference that O'Brien was negligent, "a victim's contributory negligence . . . does not excuse a defendant whose conduct also causes the death of another." Campbell, 394 Mass. at 87. It is "only in situations in which the second act of negligence looms so large in comparison with the first, that the first is not to be regarded as a substantial factor in the final result." Commonwealth v. Mandell, 29 Mass. App. Ct. 504, 506 n.5 (1990), quoting from Perkins & Boyce, Criminal Law 787 (3d ed. 1982). "[T]he evidence in the case so far excluded the hypothesis that the victim was solely at fault," such that there was no error in denying the defendant's motion for required findings. Commonwealth v. Haley, 23 Mass. App. Ct. 10, 15 (1986). There was no dispute that O'Brien and Butler died as a result of injuries they sustained in the crash, which the evidence showed was precipitated by the defendant's negligent operation.
The Commonwealth's expert did not calculate the Honda's postimpact speed.
Judgments affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: July 20, 2015.