Opinion
No. 12–P–1517.
2013-12-16
COMMONWEALTH v. Mark R. LAVALLEE.
By the Court (RUBIN, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in District Court, the defendant was convicted of negligent operation of a motor vehicle and leaving the scene of property damage, both in violation of G.L. c. 90, § 24(2)( a ). We affirm.
Sufficiency of the evidence. The evidence, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), permitted the jury to find the following facts. At about 3:00 P.M. on April 2, 2011, the defendant was driving his pickup truck “at a very high rate of speed” on a “very narrow” one-way street in Webster. The truck swerved to the left before it turned sharply to the right and collided with a black sedan parked on the side of the street. The impact was “[s]ignificant,” and the truck “plowed” the sedan into a building about fifty yards up the street. There was evidence that the defendant's truck did not come to a complete stop, but “took off” immediately following the collision. Hearing the crash, a crowd—including the sedan's owner—gathered to see what had happened. The defendant drove his truck to his home about a quarter of a mile away, where he telephoned the police and reported the accident. On appeal, the defendant challenges the sufficiency of the Commonwealth's proof with respect to the charge of leaving the scene of property damage. More specifically, the defendant asserts that the Commonwealth failed to prove that he went away from the collision without stopping and making known his name, residence, and the register number of his motor vehicle. Because he reported the accident to police after he returned home, the defendant claims that he fulfilled the requirements of the statute.
The defendant's argument is unconvincing. The leading case discussing this offense, Commonwealth v. Horsfall, 213 Mass. 232, 236 (1913), makes clear that the operator has an obligation to leave his information with “those whose person or property has been injured.” Only if this is not “reasonably possible” may the operator give the information to “some one in their interest or to some public officer or other person at or near the place and time of injury.” Ibid. See Criminal Model Jury Instructions for Use in the District Court 5.180 (1995). Here the evidence was undisputed that the defendant did not furnish his information to the owner of the damaged sedan (or to anyone else) at the scene. Although the defendant maintains that the notice he did provide was close enough to satisfy the terms of the statute, the jury disagreed and there was ample evidence to support such a conclusion.
The only remaining question is whether it was “reasonably possible” for the defendant to have stopped and provided his information. Although the defendant does not press the point on appeal, he did maintain below that he could not stop at the scene because his brakes had failed. But in considering the defendant's motion for a required finding of not guilty, the judge was not required to credit the defendant's self-serving statements to that effect. See Commonwealth v. Platt, 440 Mass. 396, 400–401 (2003). Moreover, the Commonwealth presented ample evidence that the defendant's brakes were functioning both before and after the collision. For example, two witnesses testified that they heard brakes being applied before the crash, and the defendant drove home (which required him to turn onto a different street) after the crash. To the extent that any of the evidence regarding the brakes was in dispute, the judge correctly left determination of those facts to the jury.
Jury instructions. The defendant also challenges the judge's instruction to the jury with respect to the charge of negligent operation. During their deliberation, the jury presented a question to the judge about the definition of “negligence” and whether it includes “prior or postaccident” conduct or is “all inclusive.” The judge then instructed the jury, “If you find that he acted negligently either before the accident, at the accident, or after the accident, the defendant's intent is not relevant.” As the defendant acknowledges, there is no inherent error in allowing a jury to consider a defendant's postcollision conduct in their determination of negligence. See Commonwealth v. Duffy, 62 Mass.App.Ct. 921, 923 (2004). Nevertheless, the defendant asserts that the judge's instruction amounted to unfair surprise because he had no notice that his postcollision driving would be the focus of the negligent operation charge. However, the complaint was not limited to his precollision conduct, and he sought no bill of particulars. Moreover, the prosecutor made references to the defendant's postcollision driving in both his opening and closing statements, and the prosecutor elicited direct testimony regarding it as well. The judge's answer to the jury question did not amount to any unfair surprise.
The defendant separately asserts that, in light of the reinstruction, the judge should have given a specific unanimity instruction (even though the defendant acknowledges that he never requested one).
We disagree. “When a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.” Commonwealth v. Thatch, 39 Mass.App.Ct. 904, 905 (1995). Here, there is significant force to the Commonwealth's argument that there was one continuous course of conduct that was limited in both time and space (and that therefore a specific unanimity instruction was not appropriate). In any event, regardless of whether the defendant might have been able to obtain such an instruction had he requested one, the failure of the judge to give an instruction sua sponte did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Federico, 70 Mass.App.Ct. 711, 719–720 (2007) (“It is ... well established that a judge's failure to give a specific unanimity instruction sua sponte does not automatically give rise to a substantial risk of a miscarriage of justice where ... the Commonwealth presented evidence sufficient to withstand a motion for a required finding of not guilty on each of the charged offenses”).
The general objection that the defendant made to the judge's reinstruction did not flag the separate question whether a specific unanimity instruction additionally should have been given. The issue therefore was not preserved.
Judgments affirmed.