Opinion
10-P-1520
04-18-2012
COMMONWEALTH v. EDWARD LEONARD.
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, Edward Leonard, charged with motor vehicle homicide by operating under the influence of alcohol and negligence, was convicted by a Superior Court jury of the lesser included offense of motor vehicle homicide through negligence, G. L. c. 90, § 24G, and now appeals. We affirm.
The defendant was found not guilty on charges of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b); operating a motor vehicle under the influence of alcohol, serious injury resulting and negligence, G. L. c. 90, § 24L(1); and manslaughter, G. L. c. 265, § 13.
Facts. In the early morning of March 8, 2007, the defendant, driving a Ford F-350 pickup truck west on the two-lane route 44 in Taunton, collided with an Oldsmobile Calais headed east. The pickup truck turned over and came to rest on its roof. The defendant was not injured. The Oldsmobile was 'totally crushed.' The driver was injured and a passenger later died after being taken to a hospital. There were no witnesses to the collision. A police reconstruction expert estimated that the truck's speed was between forty-seven and sixty-one miles per hour, and estimated the Oldsmobile's speed was in the range of thirty-five to forty-two miles per hour. The posted speed limit was forty miles per hour. The police expert opined that the truck was travelling in the eastbound lane at the time of the collision. The defendant's expert testified that the right front corner of the truck struck the passenger side of the Oldsmobile while the Oldsmobile was straddling the center line of the road, and that the truck was travelling forty-seven miles per hour at the time of impact. There was some evidence that the defendant was intoxicated.
Discussion. 1. Alleged failure to prove 'public way.' It readily is apparent from the trial record that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant operated his motor vehicle on a public way, specifically State route 44. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). There was evidence that the paved road was accessible to and, in fact, was accessed by the public, including fire, medical, and police personnel. There were commercial establishments along the road. In addition, there were traffic lights, marked lanes of travel in two different directions and fog lines, telephone poles, and guard rails. See, e.g., Commonwealth v. Mara, 257 Mass. 198, 209 (1926), and the other authorities cited in the Commonwealth's brief at pages 19 through 20.
2. Alleged error in jury instructions. The judge explained the difference between misdemeanor vehicular homicide and felony vehicular homicide by distinguishing the difference in the elements. The judge instructed the jury in part that 'there are two types of vehicular homicide that you will be asked to consider. One is what we call felony vehicular homicide. . . . If the Commonwealth has proved all five elements beyond a reasonable doubt . . . then you should find the defendant guilty of felony vehicular homicide. . . . Now, if you find the defendant not guilty of that charge, there is another charge of motor vehicle homicide called misdemeanor motor vehicle homicide.' In his conclusion, the judge instructed: 'Thus the difference between the felony and misdemeanor offense of vehicular homicide is the felony requires both proof beyond a reasonable doubt of operating under the influence of the intoxicating substance and operating recklessly or negligently so that the lives and safety of the public might be endangered, but the misdemeanor requires proof beyond a reasonable doubt of only one of these two.' Defense counsel timely objected, saying, 'I object to referring to [the offense of vehicular homicide] as felony homicide versus misdemeanor homicide, because in everybody's mind they think a misdemeanor is no big deal. They think misdemeanor is just like a fine or something. Right or wrong, that's what many people think. I do.' Assuming, without deciding, that this was error, it was harmless beyond a reasonable doubt. See Commonwealth v. Sanchez, 70 Mass. App. Ct. 699, 701-702 (2007). The jury only convicted the defendant of the lesser included offense, misdemeanor motor vehicle homicide, indicating, in light of these facts, that any possible error benefitted the defendant. Furthermore, the judge properly instructed the jury that they were not to consider punishment that a defendant might receive. We presume that jurors follow the jury instructions. Commonwealth v. Campbell, 394 Mass. 77, 86 (1985). There is little likelihood that the jury engaged in the speculation suggested by the defendant.
Judgment affirmed.
By the Court (Cypher, Vuono & Rubin, JJ.),