Opinion
11-P-1226
05-04-2012
COMMONWEALTH v. ALI KULUMBA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of leaving the scene of an accident causing property damage, G. L. c. 90, § 24(2)(a), and operation of a motor vehicle with a suspended license, G. L. c. 90, § 23. On appeal, the defendant argues that (1) there was insufficient evidence to convict him of leaving the scene of an accident; (2) the judge gave an erroneous instruction on that charge; and (3) the judge improperly admitted hearsay testimony at trial. We affirm.
1. Sufficiency of the evidence. To prove the crime of leaving the scene of an accident, the Commonwealth must establish beyond a reasonable doubt 'that (1) the defendant operated a motor vehicle (2) on a public way (3) and collided with or caused injury in some other way to another vehicle or to property; (4) the defendant knew that he had collided with or caused injury in some other way to that other vehicle or property; and (5) after such collision or injury, the defendant did not stop and make known his name, address, and the registration number of his motor vehicle.' Commonwealth v. Velasquez, 76 Mass. App. Ct. 697, 698-699 (2010), quoting from Commonwealth v. Platt, 440 Mass. 396, 400 n.5 (2003). The defendant does not seriously challenge the sufficiency of the evidence that he was operating the vehicle at the time of the collision, that he was on a public way, and that he refused to provide the required identification. He contends, however, that the Commonwealth failed to prove that he was 'in some way an actor, a partial cause in the collision.' Commonwealth v. Robbins, 414 Mass. 444, 446 (1993). See Commonwealth v. Bleakney, 278 Mass. 198, 202 (1932). We disagree. The jury could easily and reasonably find that the defendant's actions contributed to the collision. Chavez testified that the Navigator (which the defendant was driving) began to accelerate when the light turned green and then stopped again, causing Chavez to rear-end the Navigator. Chavez made eye contact with the defendant and motioned for him to pull over, which he did. The defendant's actions after the accident also support a finding that he knew that he had been involved in an accident: when approached by Chavez, he did not deny the fact that an accident had occurred, but rather provided his wife's pertinent information and then switched cars with her and drove away -- all clear indications of consciousness of guilt.
Nor could the defendant credibly do so; all three of these elements were amply satisfied by Chavez's testimony.
Relying on Bleakney, supra, the defendant argues that, because his car was stopped when the collision occurred, he was a 'passive participant' and therefore had not 'knowingly collid[ed]' with another vehicle within the meaning of the statute. Bleakney involved far different facts: a pedestrian walked into the side of a stationary car. Moreover, the court specifically did not decide what constitutes knowing collision 'where the defendant's vehicle is at rest and someone collides with it, if the defendant in whole or in part was the one colliding, or in any degree contributed to the collision.' Ibid. Bleakney does not stand for the proposition that every driver whose car happens to be stopped at the moment of collision is a passive participant outside the reach of G. L. c. 90, § 24(2)(a). See Robbins, 414 Mass. at 448 ('Nothing in Bleakney suggests that a defendant who 'was in some way [an] actor,' [278 Mass. at 202,] although not negligent, is not within the purview of the statute '). Where, as here, there is sufficient evidence that the defendant contributed to the collision, the mere fact that his car may have been stopped at the moment of collision does not mean that the statute does not apply.
2. Jury instructions. The defendant argues that the judge erred in failing to instruct the jury specifically that the defendant did not have to provide information before leaving the scene if he was merely a 'passive participant' in the collision. Because there was no objection at trial, we review to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 12-13 (1999). There was no error. The judge accurately instructed the jury on the five elements of the charge, reciting the model instruction almost verbatim. See Criminal Model Jury Instructions for Use in the District Court, Instruction 5.180 (2009) (Model Instruction 5.180). See also Velasquez, 76 Mass. App. Ct. at 698-699. The judge also gave the supplemental model instruction specifying that proof of knowing collision 'requires the defendant to know either that he had been involved in a collision or whether he caused such injury in some other way.' See Supplemental Instruction 3 to Model Instruction 5.180, supra. The fact that the judge did not use the exact phrase 'passive participant' did not render the instruction inadequate. See Commonwealth v. Torres, 420 Mass. 479, 484 (1995) ('We do not require that any specific words be spoken in a jury instruction').
3. Hearsay. Finally, we disagree with the defendant's argument that his wife's testimony about questions the police officer asked her at the scene of the accident was inadmissible hearsay. The police officer's questions were not hearsay because they were not offered for their truth. See Commonwealth v. Serrano-Ortiz, 53 Mass. App. Ct. 608, 614 (2002); Mass. G. Evid. § 801(c) (2011).
Judgments affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),