Opinion
No. 15–P–1747.
01-05-2017
COMMONWEALTH v. Christopher Matthew MORRISEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of leaving the scene of an accident involving property damage in violation of G.L. c. 90, § 24(2)(a ). He argues on appeal that the evidence was insufficient to prove beyond a reasonable doubt that he operated his vehicle on a public way and that he failed to provide his name, address, and registration number to the driver of the other vehicle; that the trial judge gave an erroneous jury instruction on the "public way" element of the offense; and that his trial counsel was ineffective for failing to raise certain challenges to the exclusion of the testimony of a defense witness. We affirm.
Background. We summarize the facts, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). The other person involved in the accident, Dennis Sullivan, was driving his Jeep Wrangler on Phinney's Lane in Centerville at approximately forty to forty-five miles per hour. As he got closer to the vehicles in front of him and prepared for an upcoming turn, he slowed his speed. Suddenly, and for no apparent reason, the driver of the Toyota Camry immediately ahead of him braked and came to a full stop. Sullivan "slammed on [his] brakes" but was unable to stop in time and collided with the Camry.
Sullivan and the driver of the Camry, identified by Sullivan at trial as the defendant, pulled over to the side of the road and got out of their vehicles to inspect for damage. Sullivan observed damage to the bumper and wheel well of his Jeep and a "crimp" in the bumper of the defendant's Camry. When Sullivan suggested that they telephone the police and exchange information, the defendant replied, "[D]on't even bother," stating that he is an "ex-cop" and "can get away with anything in this town." Sullivan returned to his vehicle and dialed 911. The defendant then "jumped" into his vehicle and drove away in a hurry. Sullivan testified that at no point during this encounter did the defendant provide his name, address, or registration number.
A nearby resident, Paul Giammasi, heard the impact of the collision from his house on Phinney's Lane and went to a window to listen to the drivers' conversation. He observed that both men were "obviously irritated" and "talking with each other in a loud voice." Giammasi heard the driver of the Camry say that "either he was with the police or he was the police." He also heard "the driver of the Jeep explain to the driver of the Camry that he couldn't leave because he called the police, and then the Camry left ." According to Giammasi, when the driver of the Camry left the scene, he "was going fast," "back[ing] up and accelerat[ing] at a high speed."
Discussion. After the briefs were filed in this case but prior to oral argument, the Supreme Judicial Court held in Commonwealth v. LeBlanc, 475 Mass. 820, 821–824 (2016), that the crime of leaving the scene of an accident involving property damage, G.L. c. 90, § 24(2)(a ), does not require proof that the accident occurred on a public way. LeBlanc therefore renders moot the defendant's arguments that there was insufficient evidence to establish that Phinney's Lane is a public way, and that the judge gave an erroneous jury instruction on the public way element of the offense. Although the defendant contended at oral argument that LeBlanc should not apply retroactively, that contention fails in light of the fact that the Supreme Judicial Court applied its ruling to LeBlanc himself and upheld his conviction. See LeBlanc, supra at 824–825 (finding it "plain" and "unambiguous" that G.L. c. 90, § 24 [2] [a ], "does not contain a public way element"). The defendant has presented no reason why his case should be treated differently.
Turning to the defendant's remaining arguments, we conclude that the evidence was sufficient to establish that he left the scene of the accident without "stopping and making known his name, residence and the register number of his motor vehicle." G.L. c. 90, § 24(2)(a ). Sullivan directly testified that the defendant did not provide any such information, and his account was corroborated by Giammasi's testimony that the driver of the Camry left the scene abruptly and "at a high speed." Although the defendant points to his own contrary testimony, assessing the credibility of the witnesses was entirely within the purview of the jury, who were entitled to believe Sullivan and disbelieve the defendant. See Commonwealth v. Martino, 412 Mass. 267, 272 (1992). Likewise, the defendant's argument that "parts of Sullivan's testimony [were] inconsistent" goes to the weight and credibility of the evidence, matters for the jury to resolve. See Commonwealth v. Ruci, 409 Mass. 94, 97 (1991) ; Commonwealth v. Boucher, 438 Mass. 274, 275–276 (2002). Thus, viewed in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 677, the evidence was sufficient to support the conviction.
Lastly, the defendant claims that his trial counsel was ineffective for failing to raise certain arguments when the judge excluded hearsay testimony from the defendant's girl friend. In particular, according to the defendant, trial counsel should have argued that the testimony was admissible under the excited utterance exception or constitutionally based exception to the hearsay rule. We "strongly disfavor raising claims of ineffective assistance on direct appeal," rather than through the preferred method of a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). An exception to that principle is "when the factual basis of the claim appears indisputably on the trial record." Ibid., quoting from Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994). This is not such a case. The record does not contain any information about trial counsel's strategy, nor does it even reveal what the substance of the girl friend's testimony would have been. Without that information, we cannot assess whether trial counsel's decisions were "manifestly unreasonable" or whether they "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgment affirmed.