Opinion
19-P-75
03-30-2020
COMMONWEALTH v. Danzie DALEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Danzie Daley, was convicted of negligent operation of a motor vehicle. See G. L. c. 90, § 24 (2) (a ). On appeal, he claims that the evidence was insufficient. We affirm.
The jury found the defendant not guilty of firearm-related offenses.
The notice of appeal referenced the denial of a motion to suppress; however, the defendant did not raise this argument in his brief. Accordingly, it is waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1630 (2019).
Background. The jury could have found the following facts. On the dark and rainy evening of October 30, 2016, a person, later identified as the defendant, was driving a black Audi in a residential and thickly settled neighborhood. At approximately 9:00 P.M. , Boston Police Officer Samora Lopes and his partner, Officer Nilton Ramos, were conducting surveillance in an unmarked minivan. They saw the defendant pull into a driveway, reverse, and shine his headlights towards the minivan. The passenger got out of the Audi and tried to look inside the minivan with a flashlight before getting back into the Audi; the defendant then drove away. Ramos relayed the Audi's description to the other officers in the area.
Officer Joao Rodrigues was nearby with his partner, Officer Norman Texeria, when they spotted the Audi after hearing its description. They followed the car without turning on their lights or sirens. The Audi accelerated at a high rate of speed and made a sharp turn without signaling. The officers then lost sight of it. At trial, Rodrigues testified that, based on his training and experience, he believed the defendant was driving at a "speed greater than reasonable" and above the speed limit.
Officer Scott Pulchansingh also saw the Audi. Although he had heard the description over the radio, it was the car's very high rate of speed that drew his attention. He saw the Audi turn "sharply" and "recklessly" while "traveling at a high rate of speed." He testified that the car was definitely "exceeding 25 miles an hour." Pulchansingh activated his light and sirens, but the defendant was driving too fast for him to catch up. The Audi approached a "very dangerous intersection," did not stop at the stop sign, and made a "hard" turn at a high rate of speed. Despite the area being "very busy" and "heavily trafficked," the defendant did not appear to look for traffic or pedestrians. A nearby homeowner testified that she could hear the "screeching of the tires." As the Audi approached another intersection, it slowed down for a block, before eventually pulling over.
Discussion. We review claims of insufficient evidence to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (emphasis in original)." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Commonwealth must prove beyond a reasonable doubt that the defendant operated a motor vehicle, on a public way, and drove 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 at issue here.
"A defendant's driving need not have been erratic ... so long as the conduct, taken as a whole, might have endangered the lives and safety of the public." Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 370 (2019). There are myriad ways in which a defendant's behavior might endanger the lives of the public. See, e.g., Commonwealth v. Jewett, 471 Mass. 624, 631 (2015) (defendant crossed over lines, made wide turns, weaved, refused to pull over, and nearly hit parked car while attempting to evade police); Commonwealth v. Johnson, 413 Mass. 598, 601 (1992) (speeding vehicle attempted to evade police and almost hit unmarked vehicle); Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 33 (2007) (defendant accelerated in manner that caused tires to spin, car to "fishtail" and make screeching noise); Commonwealth v. Labelle, 67 Mass. App. Ct. 698, 700–701 (2006) (sped through yellow light at intersection during busy time of day); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 255 (2006) (erratically crossed lanes and straddled breakdown lane); Duffy, 62 Mass. App. Ct. at 922-923 (speeding through thickly-settled neighborhood).
The defendant argues that the officers were unable to say precisely how fast he was going; however, this is not required. Cf. Teixeira, 95 Mass. App. Ct. at 369. His claim that his driving did not create an actual danger also fails. "The question is whether the defendant's driving had the potential to cause danger to the public, not whether it actually did." Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015). Here, the jury could have found that the defendant was driving too fast for the conditions and in doing so, had the potential to cause danger to the public. He accelerated at a high rate of speed down a thickly-settled residential street -- such that the police officer could not keep up with and lost sight of him. He made turns -- without signaling, stopping at the stop sign, or looking for traffic or pedestrians -- through a "very dangerous" intersection, all in a thickly-settled residential neighborhood.
Finally, the defendant points to the fact that he was not charged with operating under the influence of alcohol and there were no signs of impairment. However, intoxication is not an element of negligent operation. See Duffy, 62 Mass. App. Ct. at 921. On these facts, a reasonable jury could conclude that the defendant drove negligently so as to put the lives or safety of the public in danger.
Judgment affirmed.