Opinion
19-P-677
06-08-2020
COMMONWEALTH v. FRANKLIN PERRY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Franklin Perry, was found guilty of leaving the scene of an accident involving personal injury. See G. L. c. 90, § 24 (2) (a½) (1). On appeal, he argues that the trial judge erroneously denied (1) his motion for a required finding of not guilty and (2) his request for a jury instruction regarding passive participation in the accident. We affirm.
He was acquitted of operating while under the influence of alcohol, third offense; and child endangerment.
Discussion. 1. Sufficiency of the evidence. The defendant contends that because he was a passive participant in the collision, and not the cause of the collision, the judge improperly denied his motion for a required finding of not guilty. To prove the defendant's guilt under § 24 (2) (a½) (1), the Commonwealth must demonstrate that the defendant (1) operated a motor vehicle; (2) on a public way; (3) knowingly collided with or otherwise injured a person; and (4) went away without stopping or making known his name, address, and the registration number of his vehicle; where (5) the collision caused injury to the person that did not result in death. See G. L. c. 90, § 24 (2) (a½) (1); Commonwealth v. Muir, 84 Mass. App. Ct. 635, 638 (2013). See also Commonwealth v. LeBlanc, 475 Mass. 820, 824 n.6 (2016). The defendant contends that there was no knowing collision because the victim ran into his car and the defendant was merely a passive participant.
Viewed in the light most favorable to the Commonwealth, see Aucella v. Commonwealth, 406 Mass. 415, 416 (1990), the defendant's car was in motion at the time it collided with the pedestrian, a twelve year old boy. The defendant kept moving, dragging the boy. At the boy's brother's request, the defendant backed up, releasing the twelve year old, but then drove away. A rational jury could have found that the victim ran into the defendant's moving car, that the defendant was aware of the collision, and left the scene of the collision without providing the requisite information.
The defendant claims that his expert credibly testified that the collision was unavoidable, that the victim ran into his car, and that the defendant was therefore a passive participant. "It is well established that fault is not a determining factor; rather, we look to whether the defendant was in some way an actor, not a mere participant." Commonwealth v. Constantino, 443 Mass. 521, 528 (2005). Here, regardless of negligence, the defendant hit the victim in a moving car, dragged him, and left the scene of the accident without stopping to make himself known. His guilt of this offense was not contested at trial.
Defense counsel told the jury in her opening statement and closing argument that the defendant was guilty of leaving the scene of an accident causing personal injury. She urged the jury to acquit the defendant of the other charges.
The defendant relies on Commonwealth v. Bleakney, 278 Mass. 198, 200-202 (1932), a case in which a pedestrian walked into a car that was at a full stop. The Supreme Judicial Court held that the phrase "knowingly colliding" in G. L. c. 90, § 24, "was not intended to punish the driver of a motor vehicle against which, while it is stopped in traffic, another person thoughtlessly or carelessly falls or walks where the position of such motor vehicle is a mere condition and not a cause of the collision." Bleakney, supra at 202. Bleakney specifically distinguished cases in which the defendant's car was in motion during the collision. Id. at 204. The Supreme Judicial Court reinforced this distinction some sixty years later in Commonwealth v. Robbins, 414 Mass. 444, 448 (1993). "Nothing in Bleakney suggests that a defendant who 'was in some way [an] actor,' . . . although not negligent, is not within the purview of the statute" Robbins, supra. Cf. Constantino, 443 Mass. at 528. Although the defendant may not have been at fault, he was an actor in the collision. The evidence was sufficient.
2. Jury instruction. The defendant requested a jury instruction consistent with his interpretation of Bleakney to the effect that the jury could not find him guilty if he was a mere passive participant. We review this claim of error for an abuse of discretion or error of law. Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 391-392 (2013). The car was in motion, and for the reasons stated above, the defendant was not a passive participant. See Robbins, 414 Mass. at 448. There was no error in the judge's refusal to give the instruction.
Judgment affirmed.
By the Court (Sullivan, Kinder & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 8, 2020.