Opinion
13-P-854
12-16-2014
COMMONWEALTH v. THOMAS E. LANTYCH.
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
The defendant, Thomas E. Lantych, was convicted after a jury-waived trial of motor vehicle homicide by negligence in violation of G. L. c. 90, § 24G(b). The primary issue at trial and before us on appeal is whether the Commonwealth sustained its burden to prove beyond a reasonable doubt that the defendant was negligent in the operation of his vehicle. For the reasons that follow, we affirm the defendant's conviction.
Background. Based on the evidence, and the reasonable and possible inferences that could be drawn from the evidence, including a view of the scene, see Mass. G. Evid. § 1109 (2014), the judge was warranted in finding the following facts and crediting the testimony described below. Conifer Hill Road in Danvers at the location of the crash consists of two, twelve-foot-wide lanes in the southbound direction, which are separated by a solid white line, and one sixteen-foot-wide lane in the northbound direction, which is separated from the southbound lanes by a double yellow line. The area is commercial in nature. At approximately 12:15 P.M. on Sunday June 7, 2009, Thomas Lantych was operating a Cadillac Escalade vehicle. He made a right turn from the Stop and Shop supermarket parking lot and entered Conifer Hill Road in Danvers heading southbound. There was little, if any, traffic on the road and he had a clear, unobstructed view of the roadway. After traveling approximately 160 feet, the defendant's vehicle struck and killed Linda Robinson as she stood outside and close to her vehicle, having stepped out of it, turned, and almost closed the door.
Prior to trial, the defendant stipulated to three of the four required elements of the offense: namely, that he had operated a motor vehicle on a public road and caused the death of the victim. See Mass. G. Evid. § 611(g) (2014).
The evidence includes numerous photographs and sketches of the scene. These depict the location of the vehicles and the victim as they were found by the first responders, and the damage to each of the vehicles. The evidence also includes a sketch prepared by the Commonwealth's accident reconstruction expert showing the path taken by the defendant's vehicle to the point of impact with the victim. In addition, the evidence included the driver's side door and door latch of the victim's vehicle, and various items of her personal property found at the scene. There were also photographs depicting the victim's injuries which were received in evidence and marked as exhibits.
There were no eyewitnesses to the crash. Two civilian witnesses were in the vicinity and responded immediately following the crash. One of them, Glenna Maher, saw the defendant kneeling over the victim attempting to assist her. The defendant told Maher, "I didn't mean to, I didn't mean to"; "[t]hat he was driving and that he didn't see her in time." When asked what had happened, he stated that he was coming "[d]own the hill" after taking a right turn out of the parking lot and that "he didn't see her in time." The defendant also told Maher that the victim was standing outside her Jeep Cherokee vehicle when he hit her. The victim's bag and wallet were inside the vehicle on the console.
Massachusetts State police Trooper Steve Browning arrived at the scene within about ten minutes of the crash. He found the victim lying in the right lane on the southbound side of Conifer Hill Road, slightly ahead (south) of her vehicle, which was parked in that lane. The defendant's vehicle was parked about fifteen yards further south on Conifer Hill Road in the same lane. Glenna Maher and the defendant were trying to assist the victim. Trooper Browning testified that the defendant told him "that she came out of nowhere and that he didn't see her." The defendant pointed to the southbound lane to the left of where the victim's body was found. After emergency medical personnel arrived, the defendant and Trooper Browning spoke again. The defendant stated "that she was in the middle of the road and that she had come out of nowhere." The defendant again pointed to the southbound lane to the left of the lane in which the victim's body was found. Later, after inspecting the damage to the defendant's vehicle, Trooper Browning asked the defendant how it could be that the victim was in the middle of the road when his vehicle had suffered right side damage. The defendant responded, "I don't know."
Trooper Browning noticed damage to the driver's side door of the Jeep Cherokee, which was nearly closed, and that the outside mirror on that side "was pushed forward in the sense that if you were looking at the Jeep on the side, you could see the mirror facing back at you." Trooper Browning observed damage to the defendant's vehicle as well and blood stains on both vehicles. The observations made by Trooper Browning are illustrated in photographs marked exhibit 3 and 4. Trooper Browning placed an "x" on exhibit 1 to mark the location where the defendant told him that the victim was standing when he struck her.
At some point after this, the defendant was advised of his Miranda rights by Massachusetts State police Sergeant Monzon. He made a further statement at the time, but it does not add anything material to the case.
Dr. Mindy Hull, a forensic pathologist and associate medical examiner, conducted a postmortem examination of the victim. The immediate cause of the victim's death was blunt force trauma to her right side including her neck and torso, "with fractures of the spine, ribs, pelvis, and femur." Dr. Hull opined that the victim's leg laceration was consistent with her leg striking her vehicle's driver's side door.
The Commonwealth's accident reconstructionist, State police Lieutenant William Pultar, arrived at the scene at 12:35 P.M., about twenty minutes after the crash occurred. The amber-colored hazard lights on the victim's vehicle were flashing. He examined the scene, the damage to the vehicles, the location where the victim's body and her personal articles (eyeglasses and sandals) were found, and the pattern of blood and tissue that appeared on the defendant's vehicle and on and inside the victim's vehicle. Lieutenant Pultar utilized a calibrated device like the one used by surveyors to take measurements of the relative distances between landmarks at the scene and the vehicles and prepared a scaled drawing that was received in evidence and marked exhibit 22. He determined that the northbound lane of Conifer Hill Road was sixteen feet wide and each of the two southbound lanes was twelve feet wide. The distance from where the defendant entered Conifer Hill Road at the Stop and Shop parking lot to the crash point was about 160 feet. Pultar testified that there are no view obstructions on the road in this area, it is in good condition, and it is straight. The speed limit in the area is thirty miles per hour. There was evidence that at the time of the events the Jeep's engine was off and the keys were in the ignition.
At trial, the defendant did not object to the witness's qualifications. The foundation testimony given by the witness was that he investigates and reconstructs thirty to forty accidents per year and has done so since 1982. He added that he has a degree in mechanical engineering and graduated with honors in engineering. On average, he takes two specialized training courses each year in topics related to accident reconstruction, including a course about how to relate injuries to the body and damage to vehicles as well as several courses about the investigation of pedestrian crashes. Lieutenant Pultar testified that he has been a member of ACTAR, the Accredited Commission for Traffic Accident Re-constructionists, for almost twenty years. He has published two articles in the field of accident reconstruction and developed a technique for determining the speed of vehicles that has been endorsed by Texas A & M University and incorporated into its curriculum. On average, he reported that he has testified in court once a month for the past twenty years. Lieutenant Pultar was well qualified to testify as an expert in accident reconstruction. See Peterson v. Foley, 77 Mass. App. Ct. 348, 351-352 (2010); Commonwealth v. Addy, 79 Mass. App. Ct. 845, 838-840 (2011). Contrast Commonwealth v. Guinan, 85 Mass. App. Ct. 445, 448-454 (2014).
Prior to trial, defense counsel moved to exclude the testimony of Lieutenant Pultar on grounds that it was based on speculation and had no foundation in the evidence. Lieutenant Pultar's report is in the record but was not marked as an exhibit. The defendant's motion was denied. The defendant makes the same argument on appeal, which we address in the text.
It should be noted that the defendant also called an accident reconstructionist as a witness. It was the opinion of the defense expert that the cause of the crash could not be determined.
Lieutenant Pultar made a series of calculations including an estimate of the speed of the defendant's vehicle at the moment of the crash, the position of the victim at the time of the crash, the distance the defendant's vehicle would travel once its brakes were applied, and the time it would have taken the victim to exit from her vehicle to a standing position in the roadway.
It was Lieutenant Pultar's opinion that the victim was standing outside her vehicle, facing it and not more than eighteen inches from it, when she was struck by the defendant's vehicle. See exhibit 23 (sketch). He testified that the location of the victim's sandals, which were found close to her parked vehicle, is a significant indicator of where the victim was at the moment of the crash. The driver's side door and door latch of the Jeep were offered in evidence and marked as exhibits 10 and 11, along with photographs of the same. Lieutenant Pultar pointed out that the Jeep's mirror was "bent backwards [mirror facing away from the vehicle]. It's not damaged. It's not broken." The same observation was made by Trooper Browning. Lieutenant Pultar explained that if the defendant's vehicle had struck the Jeep's mirror it would have broken it. He also explained that the side-view mirror on the passenger side of the defendant's car was bent back towards the vehicle, which indicated "a force going to the rear of the vehicle." He added that the "soft" deformations in the Jeep's door as opposed to crush marks were further evidence that the defendant's vehicle first struck the victim not the victim's vehicle. He testified that a deep laceration in the victim's thigh as described by Dr. Hull corresponded to damage observed on the driver's side door of the Jeep Cherokee. He described what he termed a "squeegee mark" along the side of the Jeep Cherokee where the victim had stood, which he defined as a "mark produced by a pedestrian sliding across the vehicle, removing the film of dirt covering the vehicle, and leaving behind tissue and blood." He also testified that the defendant's vehicle had blood splatter from the right front door to the rear wheel, some damage to the "headlight housing on the right side," "very minor dents" on the top of the right fender, and dents to the right side of the hood. "[C]ontact points" on the Escalade were indicated by a "scuff mark" on right front fender and some "squeegee marks along the hood."
Lieutenant Pultar testified that he conducted an experiment on a Ford Explorer in which he used a stopwatch to time himself performing a sequence of events consisting of turning off the engine, engaging the parking brake, removing the key from the ignition, putting on the hazard lights, and then stepping out of the vehicle and turning toward it with the door slightly ajar. He testified that he performed these acts as rapidly as possible and the elapsed time for this series of events was 4.5 seconds.
Lieutenant Pultar was subject to vigorous cross-examination on his methodology, his calculations, and the assumptions he made in making those calculations. For example, counsel questioned the witness's determination that it took the victim 4.5 seconds to exit her vehicle before the crash with the result that the witness conceded that she could have exited in 3 seconds. The witness also conceded that his standard for perception-reaction time was greater, possibly 1.7 seconds, when the time required to actually step on the brake was considered. The witness also conceded that if there were other vehicles on the road at the time of these events, the visual distraction caused by such vehicles could affect a driver's perception-reaction time.
Discussion. 1. Sufficiency of the evidence. A. The Latimore standard. Under the familiar Latimore standard, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979) (Latimore), when we review the evidence that was presented at trial to determine if it was sufficient, "we do not weigh the supporting evidence against conflicting evidence." Commonwealth v. Merry, 453 Mass. 653, 660 (2009). Our responsibility is to consider whether the evidence, including all reasonable and possible inferences favorable to the Commonwealth, was sufficient to enable any rational trier of fact to conclude beyond a reasonable doubt that the defendant was negligent. Latimore, supra, 378 Mass. at 677-678.
B. Proof of negligence. In order to convict the defendant of motor vehicle homicide as defined in G. L. c. 90, § 24G(b), the Commonwealth was required to prove beyond a reasonable doubt that he (1) operated a motor vehicle (2) negligently, (3) on a public way, and (4) caused the death of another. See G. L. c. 90, § 24G(b), as amended through St. 2005, c. 122, § 16. Only the second of these four elements is at issue in this case. The negligence that is required to prove a charge under § 24G(b) is "ordinary negligence." Commonwealth v. Berggren, 398 Mass. 338, 340 (1986). Commonwealth v. Carlson, 447 Mass. 79, 85 (2006).
In determining whether the defendant's operation was negligent, the judge was permitted to rely on "a large body of decisions and texts treating the subject in the context of the law of torts." See Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 36 (1984). The judge was permitted to consider that a person who operates a motor vehicle has a duty to exercise ordinary care for the safety of other motorists and pedestrians and that the duty of care increases as the likelihood and the severity of the harm that the operator may cause increases. See Commonwealth v. Angelo Todesco Corp., 446 Mass. 128, 137 (2006), and cases cited.
The evidence was sufficient to warrant the judge's finding of guilt beyond a reasonable doubt. With regard to the theory of negligent inattention, the judge was warranted in finding "that the defendant, without justification or excuse, had not been attentive to the road in front of him during the crucial period when his [vehicle] was approaching the victim . . . ." Commonwealth v. McGrath, 60 Mass. App. Ct. 685, 691 (2004). The expert witness testimony by Lieutenant Pultar was based on the application of specialized knowledge to evidence that was in the record. Based on his education, training, and experience, the witness was qualified to take crime scene measurements, to calculate variables such as the drag coefficient of a vehicle, to estimate the speed of the defendant's vehicle, and to identify the position of the vehicles and the victim at the moment of impact. See Jackson v. Anthony, 282 Mass. 540, 543-544 (1933); Peterson v. Foley, 77 Mass. App. Ct. 348, 351-352 (2010). The Commonwealth's accident reconstruction expert gave a detailed account of the basis for his opinions and was subject to vigorous cross-examination by defense counsel. It was appropriate for the witness to rely on an industry standard such as reaction-perception time in determining whether a motorist had sufficient time to brake or swerve to avoid a crash. See Peterson v. Foley, supra. The defendant's arguments regarding these aspects of the expert's opinion testimony were proper for the trier of fact to consider in determining the weight of the evidence.
The defendant argues that an aspect of the testimony by Lieutenant Pultar that was based on an out-of-court experiment should not have been admitted. The witness testified that it took between 3 to 4.5 seconds for the victim to step out of her vehicle and reach a standing position. The defendant contends that opinion was based on speculation. A judge has discretion to admit evidence of an out-of-court test or experiment designed to measure things such as speed, distance, or elapsed time even though it was conducted under conditions that differ from the manner in which the actual event occurred, provided that the experimental conditions and the conditions that gave rise to the litigation are substantially similar, and the results are helpful to the fact finder. See Ducharme v. Hyundai Motor America, 45 Mass. App. Ct. 401, 408 (1998). Here, the assumptions made by the witness for purposes of his experiment (that the victim did the following things in a sequence after parking her vehicle in the right lane: turned off the ignition, turned on the hazard lights, opened the door, stepped out of the vehicle, stood, and turned toward the vehicle) were reasonable given the facts and circumstances that are known even though the witness acknowledged under vigorous cross-examination that other alternatives were possible. Contrast Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 406 (2013) (evidence excluded because there were substantial differences between conditions of the experiment and the conditions of the accident).
With regard to the theory of negligence based on a violation of G. L. c. 89, § 2, by not passing the victim's vehicle at a safe distance, the defendant contends that in the absence of a definition of what is a "safe distance" there is no basis upon which to conclude that the defendant violated this statute. A safe distance in this context depends on the circumstances and includes the width of the road, the amount of traffic, visibility, and the nature of the surroundings. "[T]he question of what is reasonably safe under the circumstances is a question of fact." Anzoni v. Gosse, 274 Mass. 522, 525 (1931). The judge as the fact finder was warranted in concluding that by passing within eighteen inches of the vehicle as the victim stood next to the parked vehicle in circumstances in which the defendant had at least ten feet of an open lane to his left in which to operate, the defendant did not pass the vehicle at a safe distance.
2. The defendant has not demonstrated that the judge relied on material outside the record. During the trial, the defendant made extensive use of a report prepared by Lieutenant Pultar prior to trial. Two items from that report were admitted in evidence and marked as exhibits: (1) a diagram of the scene prepared by Lieutenant Pultar and (2) a second sketch known as a "Free Body Analysis Chart" that indicates the position of the vehicles and the victim's body at the moment of impact. Although the entire report was not admitted in evidence, a copy appears in the record appendix. The defendant contends that remarks made by the judge during sentencing indicate that contrary to law, he relied on Lieutenant Pultar's report. In a jury-waived trial, where the judge is presumed to have instructed himself correctly on the law, see Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000), there is less concern about the risk that exposure to evidence that was not admissible may affect the decision-making process. See Commonwealth v. Montanez, 439 Mass. 441, 449-450 (2003) (overruled in part on other grounds, Commonwealth v. King, 445 Mass. 217, 230-248 [2005]). Because no objection was made, we review to determine whether there is a substantial risk of a miscarriage of justice. In the present case, the defendant has not identified anything material to the defendant's guilt or innocence contained in Lieutenant Pultar's report that was not encompassed by his testimony and the other admissible evidence, and thus there is no risk of a miscarriage of justice.
At the sentencing hearing, the judge remarked, "[T]his is a terrible accident; a tragic loss of [the victim]. And the accident was easily avoidable, in my view. And I found clear negligence. And I credited the report and the testimony of the lieutenant, and I felt that he was highly credible in his report."
3. Testimony by the victim's husband. The judge did not abuse his discretion in permitting the victim's husband to testify. "[T]here is no error where a member of the victim's family likely to elicit sympathy testifies as to some relevant issue, even a relatively peripheral one and even where another witness could have given the same information without evoking the same level of sympathy from the jury." Commonwealth v. Marshall, 434 Mass. 358, 368 (2001), quoting from Commonwealth v. Santiago, 425 Mass. 491, 496-497 (1997). Robinson's testimony about the mechanical condition of the Jeep Cherokee, the reason for his wife's trip to the veterinarian's office on the day of the crash, and why she might have been in the location where the crash occurred was relevant and not unfairly prejudicial. See Commonwealth v. McGrath, 60 Mass. App. Ct. 685, 692 (2004).
4. Defendant's request to impeach Commonwealth witness Maher at the close of the evidence. On cross-examination of Glenna Maher, defense counsel inquired about whether she observed the hazard lights in the Jeep blinking when she first arrived on the scene. She responded in the affirmative. The witness said she had no memory of making a contrary statement to someone in defense counsel's office. She also testified on cross-examination that she had no memory of making a statement to the contrary to the police when she was interviewed shortly after the crash. In fact she said her memory was that her statement to the police was consistent with her testimony at trial. Defense counsel had her recorded police interview in court, but did not seek to impeach the witness with it.
Defense counsel had another opportunity to offer the evidence during the testimony of Sergeant Monzon, one of the police officers who interviewed Maher. However, the witness could not recall whether he had asked Maher if the Jeep's hazard lights were flashing. When defense counsel indicated he planned to use only that portion of the tape-recorded interview where Maher said she did not recall if the hazard lights were on, the prosecutor objected on grounds that if any portion of it was used it should be admitted in its entirety. Defense counsel stated that he would defer a decision about whether he would use the recorded interview on the matter and the judge responded by stating his rights were saved. Finally, after the testimony of the final defense witness, defense counsel requested permission to play that portion of Glenna Maher's recorded police interview where she reportedly states she does not recall whether the hazard lights were flashing when she arrived at the scene. The Commonwealth objected to the use of the tape and the judge sustained the objection, while noting that the evidence on this issue was in conflict.
The recorded interview was not marked as an exhibit or for identification, and thus is not part of the record on appeal. As the Commonwealth points out in its brief, no rule of evidence allows a party to impeach a witness in the manner proposed by the defendant. There are sound reasons why impeachment must be done either by the party who calls the witness in anticipation of the matter being raised on cross-examination, by the opposing party during cross-examination, or during the testimony of the witness with whom the witness to be impeached conversed. When the witness to be impeached or the witness who reportedly heard the prior inconsistent statement is testifying, each side has its opportunity to explore the circumstances in which the out-of-court statement was made so that the fact finder not only hears any inconsistency, but also has the evidence in its proper context.
Even if we assume that the ruling by the judge that the defendant's rights were saved had the effect of preserving a timely objection by the defendant, we are persuaded that the defendant was not prejudiced. See Commonwealth v. Alphas, 430 Mass. 8, 13 n.7 (1999). The evidence as to whether the Jeep's hazard lights were flashing at the time of the crash, based on reports from those who were among the first to arrive at the scene, is in conflict. The judge acknowledged that the evidence on this issue was in conflict, and that it was not "the biggest point." It was not a fact that Lieutenant Pultar regarded as essential to the opinion testimony he gave about the time the defendant had available to him to avoid the collision. Our view is that Maher's testimony concerning the Jeep's hazard lights was not material to the judge's decision.
Apart from testimony by Maher that the lights were flashing, Jacquelyn Cavanagh, a Commonwealth witness, and Noreen Kelly, a defense witness, each testified that the Jeep's hazard lights were not illuminated. Lieutenant Pultar testified that when he arrived on scene about twenty minutes after the crash, the hazard lights were illuminated. There was no evidence that anyone who responded to the scene turned the hazard lights on.
5. Denial of defendant's motion to continue sentencing hearing. The defendant argues that the judge deprived him of his right to present "information in mitigation of punishment," see Mass.R.Crim.P. 28(b), 378 Mass. 898 (1979), when it denied his motion to continue the sentencing hearing. The defendant made a request to continue the sentencing hearing after the Commonwealth moved for sentencing and made its recommendation. Defense counsel explained that his client was a Marine veteran who had been treated for Post Traumatic Stress Disorder and he wished an opportunity to bring, consult with, and possibly call witnesses from the Veteran's Administration. The judge stated that it was his practice to sentence on the day the case was decided, and denied the defendant's motion. Defense counsel then informed the judge that his client has been on leave since the accident from his position as a town of Beverley firefighter and as a reserve police officer for the town of Rowley. Defense counsel also stated that his client was an honorably discharged Marine Corps veteran of the war in Iraq. Defense counsel urged the judge to consider in-patient treatment of the defendant instead of a commitment to a penal institution. Defense counsel also urged the judge to consider ordering a mental health evaluation of the defendant.
Counsel should have been aware that the common practice in the District Court is to impose sentence on the same day a trial concludes. In a case such as this, counsel should have inquired in advance as to the judge's plans. However, the practice as to when sentence is imposed varies depending on the nature of the case and the practical needs of the parties. When defense counsel moved for a continuance, there was no objection from the Commonwealth. The record is silent as to whether a continuance would have created a hardship for the judge, the victim's family, or any other interested party. However, even assuming it was an abuse of discretion to deny the defendant's motion for a continuance, we are persuaded that there is no relief to which the defendant is entitled at this point. First, defense counsel did convey to the judge the essential elements of the facts about his client's background and prior mental health treatment which he said he needed time to develop. Second, the record indicates that the defendant is no longer incarcerated. If there are any conditions of probation that the defendant believes are inappropriate in light of his past or present mental health problems, he has an effective remedy in the form of a motion to revise the conditions of probation.
The original sentence was two and one-half years to a house of correction with one year to serve and the balance suspended until March 23, 2016, with various conditions of probation and a fifteen-year loss of license. The defendant's motion to revise and revoke initially was denied on November 15, 2011. On December 19, however, the judge, sua sponte, reconsidered his ruling and revised the sentence to 272 days of jail time, deemed served, with the balance suspended until March 23, 2016. As a result, the defendant was released from custody and is now serving his probationary term.
Conclusion. Simply the fact that no one saw the actual crash and that the sequence of events leading up to it might have been different from the version of events offered by the Commonwealth does not mean that the Commonwealth failed to sustain its burden of proof. See Commonwealth v. Kivlehan, 57 Mass. App. Ct. 793, 797 (2003). See also Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). For the reasons stated above, even though there was no evidence of excessive speed nor evidence of impairment due to alcohol or drugs, the evidence presented, and the reasonable and possible inferences that could be drawn from it, permitted the judge to conclude that the defendant did not exercise the degree of care and skill in operating his vehicle that a reasonable person would exercise in similar circumstances, and as a result caused the death of the victim. See Altman v. Aronson, 231 Mass. 588, 591 (1919).
Judgment affirmed.
By the Court (Kantrowitz, Cohen & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 16, 2014.