Opinion
20-P-594
05-04-2021
COMMONWEALTH v. Robert N. HAJJAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Barbara Page was crossing Summer Street, a six-lane divided highway in South Boston, when she was struck and killed by a vehicle driven by the defendant. A Superior Court jury convicted the defendant of motor vehicle homicide by negligent operation in violation of G. L. c. 90, § 24G (b ). He appeals his conviction and the denial of his postverdict motion for a required finding of not guilty. On appeal, the defendant claims error in (1) the denial of his motion to dismiss the indictment, (2) the judge's instruction on contributory negligence, and (3) the prosecutor's closing argument. He also challenges the sufficiency of the evidence against him. We affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following facts. The defendant's vehicle struck the victim as she stepped off the raised median of Summer Street at approximately 5 P.M. on November 19, 2014. The defendant immediately stopped, went to the victim who was lying in the street, and called 911. Boston police officers responded within minutes and observed that the victim was bleeding from the back of her head, but was conscious. The area was well lit and the road was dry. The defendant explained that he "was traveling about [twenty-five] miles an hour, took his eyes off the road for a brief second and when he looked up, he was on top of the victim."
The speed limit in the city of Boston is thirty miles per hour.
An ambulance transported the victim to the hospital, but she died before arrival. The defendant was taken to the police station where he agreed to participate in a recorded interview after being advised of his Miranda rights. The defendant stated that there was glare on the road, but that it did not affect him "at all." The defendant also stated that he might have been looking for something in the vehicle or moving clothing instead of watching the road.
The recording was introduced in evidence at trial but has not been included in the record on appeal.
The police determined that the defendant's vehicle did not have any mechanical problems that would have contributed to the accident. Environmental factors were also eliminated as a cause. A surveillance video showed that the defendant did not apply his brakes until the moment before impact. The Commonwealth's expert accident reconstructionist opined that the defendant had an unobstructed view of the victim for at least five seconds, and that the defendant's reaction time would have been 1.5 seconds. The defendant's expert agreed that five seconds under good lighting conditions "should be enough time for a driver to perceive and react to a pedestrian crossing the roadway." However, the defense expert concluded that the victim may not have been visible to the defendant until three seconds before impact due to glare. The defendant's expert attributed a 2.9 second reaction time to the defendant.
Discussion. 1. Motion to dismiss. The defendant was not issued a traffic citation and was not indicted until two and one-half years after the collision. In a motion to dismiss the indictment, the defendant argued that the failure to issue a citation deprived him of the opportunity to request a hearing before a District Court magistrate. See G. L. c. 90C, §§ 2 and 3 (B). A judge other than the trial judge denied the motion, reasoning that dismissal was not "a just or appropriate remedy" and that there was no prejudice to the defendant from the absence of a magistrate's hearing. We agree.
First, the provisions of the first sentence of the pertinent paragraph of G. L. c. 90C, § 2, providing that "[a] failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation" "shall not apply" to an indictment charging a violation of G. L. c. 90, § 24G, which resulted in a death. G. L. c. 90C, § 2. Because the defendant was indicted for negligent operation of a motor vehicle resulting in death in violation of G. L. c. 90, § 24G, the statutory requirement to serve a citation did not apply.
We disagree with the defendant's contention, raised for the first time on appeal, that the failure to give notice to the defendant of the potential criminal charges "thwarted" the purpose of the citation requirement and violated due process. We know of no authority, and the defendant has cited none, requiring the Commonwealth to provide notice of potential criminal charges in cases proceeding before a grand jury. Moreover, even if G. L. c. 90C, § 2, applied in this case, the notice purpose of the statute is fulfilled when "the notice provisions of the statute have been met by other means, such as by an arrest; whether knowledge is an essential element of the motor vehicle crime charged and is required to be proved at trial; and whether the nature of the driving incident is so serious that the driver is deemed to be on notice." Commonwealth v. Kenney, 55 Mass. App. Ct. 514, 519 (2002). Here, the seriousness of the situation would have been obvious to the defendant. The defendant knew that he had struck a pedestrian with his vehicle, that the pedestrian was bleeding from the head, and that she was transported from the scene to the hospital, and died. The defendant was taken to the police station. He was administered Miranda warnings and agreed to speak with the police. The defendant admitted that he was looking away from the road immediately before he struck the victim. Even if the defendant was entitled to prior notice of the potential criminal charges, the severity of the circumstances here provided that notice. See id.
Finally, the defendant was not prejudiced by the absence of a magistrate's hearing. Such hearings are to determine whether there is "probable cause to believe that the person who is the object of the complaint has committed the offense charged." G. L. c. 218, § 35A. Where, as in this case, a grand jury found probable cause to indict the defendant, there was "sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).
2. Sufficiency. The essential elements of motor vehicle homicide by negligent operation are: "(1) operation of a motor vehicle, (2) upon a public way, (3) recklessly or 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), quoting Commonwealth v. Burke, 6 Mass. App. Ct. 697, 699 (1978). 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 Todesca Corp., 446 Mass. 128, 141 (2006), quoting Commonwealth v. Berggren, 398 Mass. 338, 340 (1986).
The defendant challenges the sufficiency of the evidence that he operated his motor vehicle "in a negligent manner to endanger lives and public safety." Commonwealth v. Carlson, 447 Mass. 79, 82 n.4 (2006). The jury heard that the road was dry, that the defendant's vehicle was operating properly, that the lighting was good, and that the defendant admitted that he had taken his eyes off the road moments before impact and "when he looked up he was on top of the victim." This evidence, considered together with the expert opinion, viewed in the light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that the defendant did not exercise the degree of care that an ordinarily prudent person would exercise. See Commonwealth v. Kline, 19 Mass. App. Ct. 715, 720 (1985) (evidence of negligence sufficient where "[t]he jury could conclude that the defendant at a critical moment took his eyes off the road").
3. Contributory negligence instruction. It is well established that "[i]n criminal cases ... a victim's contributory negligence, even if it constitutes a substantial part of proximate cause (but not the sole cause), does not excuse a defendant whose conduct also causes the death of another." Commonwealth v. Campbell, 394 Mass. 77, 87 (1985). Here, the judge instructed the jury that "it is not a defense to a motor vehicle homicide that Barbara Page may have been negligent as well unless her negligence was the sole cause of the fatal collision. That is to say that you may only consider Barbara Page's negligence, if any, if you believe that Robert Hajjar was not negligent at all and Barbara's Page's negligence alone caused her death." The defendant claims error in the second sentence of this instruction arguing that it "prohibited jurors from considering Page's conduct at all." "We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party." Beverly v. Bass River Golf Mgmt., 92 Mass. App. Ct. 595, 603 (2018), quoting Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 611 (2000).
The prosecutor's argument in closing was consistent with this principle of law and was not error. In any event, the judge instructed the jury that "[w]hat the lawyers may have suggested the law was during their closing arguments may or may not be the law. You must listen to me on the law ..."
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Even if the second sentence of the judge's supplemental instruction, considered in isolation, might have been understood to instruct the jury that they should not consider the victim's conduct, "[w]e evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words. ... We do not consider bits and pieces of the instruction in isolation." Commonwealth v. Young, 461 Mass. 198, 207 (2012). Here the judge properly instructed the jury on each element of the criminal offense and provided a detailed instruction on the concept of negligence. The judge told the jury that they could consider "all of the circumstances you find relevant," "[t]he fact that there was a collision ... is not itself evidence that [the defendant] was negligent," and that they "must examine all of the evidence about how the collision occurred in order to determine whether the collision involves any negligence by [the defendant]." Considering all of the instructions together, we think it was clear that the jury were free to consider the victim's conduct in evaluating whether the defendant was negligent.
4. Closing argument. The defendant argued in closing that his failure to watch the road was understandable human error and not negligence. In response, the prosecutor asked the jury to consider whether it would be acceptable for a student driver to take their eyes off the road, or whether the jury would get in the car with someone who stated they were going to close their eyes for a second, or whether there would be a question of negligence if the defendant had been sending a text instead of just looking down. "[I]n all of those respects," the prosecutor argued, "the act that is negligent is exactly the same regardless of the motivation, it is the act of not watching where you are going while you were driving [thirty] miles an hour into a large congested urban area."
Referring to the testimony of the defendant's expert, the prosecutor then asked the jury whether, "in your day-to-day experience you think it takes you more than [one and one-half] seconds to react to somebody coming across the road? If a child ran out across the street do you think you would need [three] seconds just to think about it before you would react to it?" Although he did not object at trial, the defendant now claims that these examples were designed to incite the jury's passions, creating a substantial risk of a miscarriage of justice. We disagree.
"In determining whether an argument was improper we examine the remarks ‘in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.’ " Commonwealth v. Kolenovic, 478 Mass. 189, 199 (2017), quoting Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005). The prosecutor's rhetorical questions were not improper because they were a direct response to the defendant's closing argument. See Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018) (prosecutor entitled to respond to defendant's argument and point out weaknesses in defendant's case). The argument regarding reaction time was grounded in the testimony, and the prosecutor was entitled to argue "forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). The judge also repeatedly instructed the jury that the closing arguments were not evidence. "We presume, as we must, that the jury follow the judge's instructions and understand the argumentative, not factual, nature of closing arguments."
Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013). There was no substantial risk of a miscarriage of justice.
Judgment affirmed.
Order entered July 26, 2018, denying motion for required finding of not guilty affirmed.