Opinion
16-P-181
05-26-2017
COMMONWEALTH v. Milton MCCARTHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Milton McCarthy, was convicted by a jury on three indictments for misdemeanor motor vehicle homicide, in violation of G. L. c. 90, § 24G(b ), and one indictment for misdemeanor operating a motor vehicle under the influence of intoxicating liquor or with a blood alcohol level of .08 or greater (OUI) causing serious bodily injury, in violation of G. L. c. 90, § 24L(2). On appeal, he argues that the Commonwealth failed to prove the element of proximate causation beyond a reasonable doubt at trial and failed to provide evidence of causation sufficient to establish probable cause to the grand jury. Because we conclude that the evidence of causation was sufficient, we affirm.
The defendant was charged with felony vehicular homicide and felony OUI causing serious bodily injury, but was convicted of the lesser included misdemeanor offenses. He was also convicted of OUI, in violation of G. L. c. 90, § 24(1)(a )(1), but this indictment was later dismissed as duplicative. He was found responsible for a marked lanes violation. He was acquitted of negligent operation of a motor vehicle.
Discussion. 1. Motion for required findings. The defendant argues the judge erroneously denied his motion for required findings of not guilty because the Commonwealth's evidence did not establish that his actions were the proximate cause of the injuries to Haralambos Kosimidis and the deaths of his three passengers, Elpida Kosimidis, Elefthria Pantekidis, and Georgio Pantekidis. The defendant argues that the evidence of causation was insufficient because the injuries to the victims were too remote and were caused by a superseding third party or by Haralambos. These arguments are unavailing.
Because victims share the same surnames, we shall refer to them by their first names.
In reviewing the denial of a motion for a required finding of not guilty, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (quotation omitted). "The standard of causation [for vehicular homicide] is the same as that employed in tort law." Commonwealth v. Carlson, 447 Mass. 79, 83 (2006). "Conduct is a proximate cause of death if the conduct, ‘by the natural and continuous sequence of events, causes the death and without which the death would not have occurred.’ " Ibid., quoting from Commonwealth v. Rosado, 434 Mass. 197, 202, cert. denied, 524 U.S. 963 (2001).
Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. In the early morning hours of January 1, 2014, the defendant was driving north on Interstate 95 when he lost control of his motor vehicle, a silver Audi. His passenger, Kendall Thomson, had been asleep in the front passenger seat and woke up to the sound of passing over rumble strips. He saw the defendant with his head down, eyes closed, and his hands not on the steering wheel. Thomson tapped the defendant on the shoulder, and the defendant woke up and grabbed the steering wheel. The Audi crashed into the guardrail and spun 180 degrees, becoming disabled within the far left travel lane, with no lights on, facing oncoming traffic. The Commonwealth presented expert testimony that the defendant made no evasive maneuvers prior to impacting the guardrail. The defendant and Thomson exited the vehicle, but the defendant returned to the vehicle to retrieve personal items.
Another driver, Bernardino Santeusanio (Buick) , attempted to swerve and avoid the disabled Audi, but made impact. The Audi then hit the defendant, knocking him to the ground and seriously injuring him.
The type of car driven by each individual involved is noted in parentheses.
Yet another vehicle, a Cadillac driven by Haralambos, was traveling in the left lane. A witness, Edward Kinsella, testified that he saw Haralambos's Cadillac pass him in the left lane traveling approximately seventy miles per hour and crash head-on into the disabled Audi without braking or swerving. All four occupants of the Cadillac were injured, and Elefthria, Georgio, and Elpida later died of their injuries.
There were two separate collisions among other drivers attempting to avoid the damaged vehicles and debris in the roadway, one between Antonio Galvao (Nissan) and Paul Redmond (Lincoln), and another between Ronald Gonzalez (Subaru) and Stacy Bourlos (Kia).
The defendant was taken to the hospital, where his blood was drawn, and his blood alcohol content was determined to have been .14 percent at the time of the accident.
The defendant's actions were "hardly a remote link" in the chain of events leading to the deaths and injuries of the victims. See Commonwealth v. Berggren, 398 Mass. 338, 341-342 (1986). The jury could have found that the defendant, by driving with a blood alcohol content above the legal limit, set into motion the "natural and continuous sequence of events" that caused the victims' injuries and deaths. Id. at 341.
The defendant makes much of conflicting evidence presented at trial, including statements by the defendant and Thomson that an unknown vehicle side-swiped the Audi, causing the defendant to crash into the guardrail; inconsistent statements by Thomson as to when he woke up and what caused the defendant to lose control of the Audi; expert testimony supporting the defendant's version of events; and conflicting testimony as to the speed of Haralambos's vehicle, whether he took any action to avoid the collision, and whether he collided with the Audi or the guardrail.
An expert for the defense testified that some tire marks the Commonwealth attributed to the Kia were not made by any of the vehicles identified as being involved in the crash, and that there was damage to the rear of the Audi that he contended was not addressed by the Commonwealth's expert.
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The defendant's arguments are unpersuasive. The Commonwealth presented ample evidence at trial from which the jury could conclude that the defendant's conduct was the proximate cause of the injuries and deaths. The jury were entitled to evaluate the credibility of the testimony presented; "the fact ‘[t]hat contradictory evidence exists is not a sufficient basis for granting a motion for a required finding of not guilty.’ " Commonwealth v. Marinho, 464 Mass. 115, 118 (2013), quoting from Commonwealth v. Merry, 453 Mass. 653, 662 (2009).
We conclude that the Commonwealth presented sufficient evidence to prove the element of causation beyond a reasonable doubt and to support the defendant's convictions.
2. Probable cause. Before trial, the defendant filed a motion to dismiss the indictments based on insufficient probable cause, which was denied. The defendant argues that his motion should have been granted because the Commonwealth failed to present sufficient evidence of causation to the grand jury and because the grand jury were improperly or insufficiently instructed on the element of causation. Neither party included the grand jury minutes in the record, nor moved to supplement the record after argument. "Because we do not have the minutes of the grand jury before us, ... the appellate record is insufficient and we are unable to assess this claim." Commonwealth v. Basey, 82 Mass. App. Ct. 278, 283-284 (2012).
Judgments affirmed.