Opinion
No. 15–P–900.
07-22-2016
COMMONWEALTH v. Shawn MARSHALL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Dorchester Division of the Boston Municipal Court, the defendant, Shawn Marshall, was convicted of negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On appeal, the defendant contends that the judge erred in denying his motion for a required finding of not guilty because the evidence presented by the Commonwealth that he was speeding, by itself, was insufficient to show negligence. We affirm.
The jury also found the defendant responsible for the civil infraction of speeding.
In reviewing the denial of a motion for a required finding of not guilty, “we consider the evidence, together with permissible inferences from that evidence, in the light most favorable to the Commonwealth and ‘determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Commonwealth v. Platt, 440 Mass. 396, 400 (2003), quoting from Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1997). “To make this determination, we look only to the evidence presented by the Commonwealth, and disregard any contrary evidence presented by the defendant.” Platt, supra at 400–401. Circumstantial evidence alone is competent to establish guilt beyond a reasonable doubt. Commonwealth v. Nadworny, 396 Mass. 342, 354 (1985), cert. denied, 477 U.S. 904 (1986). The inferences drawn from circumstantial evidence “need only be reasonable and possible; [they] need not be necessary or inescapable.” Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
To establish guilt under G.L. c. 90, § 24(2)(a), the Commonwealth must prove that the defendant “(1) operated a motor vehicle, (2) upon a public way, (3) (recklessly or) negligently so that the lives or safety of the public might be endangered.” Commonwealth v. Duffy, 62 Mass.App.Ct. 921, 921 (2004). We confine our review to the third element, as it is the only element in dispute.
The negligence standard utilized in this context is the same as that in tort law. Id. at 922 n. 2. “Negligence ... in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which ... the person of ordinary caution and prudence ought to exercise under the particular circumstances.” Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 137 (2006) (quotation omitted). “Excessive speed, by itself, does not mandate ... a finding [of negligence,] but it can be considered in combination with other evidence, in determining whether the defendant's operation constituted negligent operation.” Duffy, supra at 922. Here, the combination of the defendant's excessive speed and evidence of the defendant's loss of control was sufficient to support the defendant's conviction for negligent operation.
The evidence established that the defendant drove his motorcycle to an intersection at a speed of in excess of twice the legal limit permitted for that road—the expert opined the defendant traveled “at least [fifty-one] miles per hour.” It was approximately 10 P.M. on a spring evening in May, and a bicyclist was approaching that same intersection. When the bicyclist neared the intersection, he heard a motorcycle in the distance but, looking both ways, he did not see one approaching. Having the right of way (the bicyclist testified the light was green for him to proceed), he made his way into the intersection, where he was struck by the motorcycle operated by the defendant. In our view, this combination of the defendant's highly excessive speed and his failure to stop for a bicyclist substantiated the conviction. The jury could reasonably infer from this evidence that “[the defendant's] ability to control his motorcycle was significantly impaired, increasing the risk that he would lose control of the motorcycle and decreasing his ability to respond to the actions, unexpected or otherwise, of the [bicyclist].” Duffy, supra at 923. Contrast Aucella v. Commonwealth, 406 Mass. 415, 419 (1990) (“[T]here was no evidence that the automobile was being driven at an excessive speed or in an erratic manner before it struck the pedestrians”).
The evidence of a forceful impact further supported the inference that the defendant drove at a dangerously high rate of speed, resulting in his loss of control of the motorcycle. The motorcycle slid 220 feet from the point of impact, making scrape marks in the road, before it collided with a “cement steel reinforced stanchion” and came to a rest. The bicyclist was found on the median strip near a pool of blood. The defendant was launched from the motorcycle and was found “wedged” underneath a black automobile. Based on the totality of this evidence viewed in the light most favorable to the Commonwealth, we conclude, therefore, that the evidence amply supported the defendant's conviction for negligent operation of a motor vehicle beyond a reasonable doubt. See Latimore, 378 Mass. at 677.
Judgment affirmed.