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Commonwealth v. Hernandez

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 27, 2016
14-P-1413 (Mass. App. Ct. Apr. 27, 2016)

Opinion

14-P-1413

04-27-2016

COMMONWEALTH v. WILLIAM HERNANDEZ.


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

Following a jury-waived trial in Chelsea District Court, the defendant was convicted of making a false motor vehicle insurance claim and attempted larceny over $250. On appeal he asserts the judge erred when he (1) admitted expert opinion evidence in damage analysis, (2) denied a motion to dismiss for failure to disclose what he claims were exculpatory witness statements, and (3) admitted an insurance company report and the defendant's recorded statement. We affirm.

Background. On September 23, 2009, the defendant reported to his insurance company that he had been in an automobile accident three days earlier in Revere. He explained to the insurance adjuster that he was making a left turn at the intersection of Revere Street and North Shore Road when he was struck by another vehicle which fled the scene. The defendant stated that his fiancée and her mother were in the car with him. The adjuster referred the claim to the insurance company's special investigations unit. The assigned investigator requested a damage analysis of the vehicle, and interviewed the defendant, his fiancée, and her mother. Following the investigation, the claim was denied and the case was referred to the District Attorney's office.

The defendant moved in limine to exclude the testimony of the Commonwealth's expert, Phillip Pantano. After a voir dire, the judge found Pantano was qualified as an expert in damage analysis and permitted his testimony. In essence, Pantano testified that the damage to the defendant's car was not consistent with a collision with another vehicle as the defendant had reported. Rather, in Pantano's opinion, the damage resulted from a collision with a stationary object rather than a second vehicle. The defendant called an expert in accident reconstruction and damage analysis who challenged Pantano's testimony and concluded that the damage was consistent with a vehicle-to-vehicle collision.

Discussion. Expert testimony. "[T]he question of an expert's qualifications is for the trial judge, and his determination will be reversed only on an abuse of discretion or error as matter of law. . . . The criterion of the judge is whether the witness possesses sufficient skill, knowledge or experience in the field of his testimony that the [fact finder] may receive appreciable assistance from it." Peterson v. Foley, 77 Mass. App. Ct. 348, 350 (2010), quoting from McCarthy v. Litton Indus., Inc., 410 Mass. 15, 27 (1991). More specifically,

"[T]the judge, as gatekeeper, must first determine whether the proponent of the evidence has met the five foundational requirements for admissibility: (1) that the expert testimony will assist the trier of fact because the information is beyond the common knowledge of jurors; (2) that the witness is qualified as an expert in the relevant area of inquiry; (3) that the expert's opinion is based on facts or data of a type reasonably relied on by experts to form opinions in the relevant field; (4) that the theory underlying the opinion is reliable; and (5) that the theory is applied to the particular facts of the case in a reliable manner."
Commonwealth v. Polk, 462 Mass. 23, 31 (2012).

Here, during the course of a pretrial voir dire examination at which experts for the Commonwealth and the defendant both testified, the judge learned that Pantano worked as a damage analyst for the Insurer's Service Bureau. He had extensive experience in auto body repair, was a certified collision analyst, was licensed in damage appraisal in Massachusetts and Rhode Island, had examined close to 8,000 damaged vehicles in a thirty-year career in damage appraisal, and had previously been qualified as an expert in automobile damage approximately one hundred times. In this case, he examined the damage that ran from the left front door of the defendant's vehicle to the left tail light, including the depth and direction of the scratches, the pitting of the paint, and the transfer material. From that examination he concluded the damage was caused by the vehicle moving forward along several objects that transferred "white and maroon brownish material" and also by chipping from cement or stone. The transfer material and chipping were not consistent with a collision with another vehicle. The defense expert disagreed with that conclusion, but acknowledged that examination of physical damage to vehicles, including transfer material, is relied upon by experts in accident reconstruction. Based on this evidence, we find no error in the judge's conclusion that the foundational requirements for admissibility of expert testimony had been met.

The defendant also complains that Pantano testified beyond the scope of damage analysis into accident reconstruction, about which he was not qualified to testify. Testimony that exceeded the area of his expertise was struck, and an objection on this ground was sustained.

Motion to dismiss. On the morning of trial the Commonwealth learned that the passengers in the defendant's vehicle, his fiancée and her mother, had been interviewed by representatives of the insurance company. The prosecutor immediately notified defense counsel. Defense counsel then moved to dismiss the case, arguing that the Commonwealth had failed to turn over exculpatory evidence. The trial judge denied the motion, reasoning that the defendant had not shown unfair surprise since the witnesses were known to him, and that there was no showing of prejudice. We agree. While it is well established that the Commonwealth has an obligation to turn over any facts of an exculpatory nature, Mass.R.Crim.P. 14(a)(1)(A)(iii), as amended, 444 Mass. 1501 (2005), the extraordinary sanction of dismissal is appropriate only upon a finding that the undisclosed evidence was exculpatory and material. Commonwealth v. Lam Hue To, 391 Mass. 301, 308 (1984). There is nothing in the record to support such a finding here. At trial, and on appeal, the defendant has failed to explain what the witnesses said during the interviews that would have been exculpatory and material to the defense.

Hearsay statements. The defendant argues that two documents, a claims summary by adjuster John Kiely, and the transcript of an interview of the defendant, by claims investigator David Potter, were inadmissible hearsay. We disagree. First, based on the evidence presented, the judge correctly found that the claims summary form was made in the regular course of business, not in anticipation of litigation, and before any civil or criminal proceedings had been instituted. Accordingly, the document qualified as a business record and an exception to the hearsay rule pursuant to G. L. c. 233, § 78. Nor did introduction of the claims summary form violate the defendant's right under the Sixth Amendment to the United States Constitution to confront the witness because "[b]usiness and public records are generally admissible absent confrontation . . . because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial." Commonwealth v. Siny Van Tran, 460 Mass. 535, 552 (2011), quoting from Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).

Finally, the transcript of the interview with the defendant consists, in large part, of his own recorded statements. By definition, a party's own statement offered against him is not excluded by the hearsay rule. Mass. G. Evid. § 801(d)(2)(A) (2016). To the extent that the defendant claims error in the admission of the interviewer's part of the conversation, we note that Potter, the interviewer, asked questions. He did not make statements. Questions are not hearsay. Mass. G. Evid. § 801(a),(c) (2016). We discern no error or abuse of discretion in the admission of the transcript.

Judgments affirmed.

By the Court (Kafker, C.J., Kinder & Neyman, JJ.),

The panelists are listed in order of seniority. --------

/s/

Clerk Entered: April 27, 2016.


Summaries of

Commonwealth v. Hernandez

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 27, 2016
14-P-1413 (Mass. App. Ct. Apr. 27, 2016)
Case details for

Commonwealth v. Hernandez

Case Details

Full title:COMMONWEALTH v. WILLIAM HERNANDEZ.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 27, 2016

Citations

14-P-1413 (Mass. App. Ct. Apr. 27, 2016)