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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. McIntyre, 36 Mass.App.Ct.
193 (1994)
Appeals Court of Massachusetts,
No. 92‑P‑1666.
Argued
Decided
Further Appellate Review Denied
Kenneth L. Sullivan,
Elspeth B. Cypher, Asst.
Dist. Atty., for Com.
Before [36
Mass.App.Ct. 193]
ARMSTRONG, DREBEN and SMITH, JJ.
SMITH, Judge.
The
defendant was found guilty by a jury of manslaughter, motor vehicle homicide,
and one count of an indictment charging him with operating a motor vehicle
while under the influence of intoxicating liquor, recklessly and negligently,
and by such operation causing serious bodily injury. He was found not guilty of a second count
charging the same offense. All of the
indictments (FN1) arose from an accident that occurred shortly after
On appeal,
the defendant claims that the judge committed error in denying (1) his motion
for required findings of not guilty, (2) his motion to dismiss the indictments
or, in the alternative, to suppress certain evidence, and (3) his motion for a
new trial.
[1][2] 1. Denial of the defendant's motion for required
findings of not guilty. The
defendant claims that the Commonwealth failed to present sufficient evidence in
regard to the indictments charging manslaughter and operating a motor vehicle
while under the influence of intoxicating liquor, recklessly [36 Mass.App.Ct.
195] and negligently and by such
operation causing serious bodily injury, and, therefore, that the judge
committed error in denying his motion for required findings of not guilty.
"The
standard which we apply in reviewing the propriety of the denial of a motion
for a required finding of not guilty is 'whether the evidence, read in a light
most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a
reasonable doubt.' " Commonwealth v. Amado,
387 Mass. 179, 186, 439 N.E.2d 257 (1982), quoting from Commonwealth v. Basch, 386 Mass. 620,
622, 437 N.E.2d 200 (1982), and cases cited.
"We consider the evidence at the close of the Commonwealth's case
and at the close of all the evidence to determine whether the motion should
have been granted." Commonwealth v. Marley, 396 Mass.
433, 442, 486 N.E.2d 715 (1985).
We
summarize the evidence introduced by the Commonwealth on its case in
chief. (FN2) Just past midnight on April 4, 1989, the
victim, Steven Martin, was driving his motor vehicle, a Datsun,
north on route 152 in North Attleborough. Two friends of Martin were passengers in his
automobile. It was a foggy night. Suddenly one of the passengers saw headlights
coming across the road toward the Martin vehicle through the fog. He yelled, "Look out." Martin braked, but his vehicle was hit head‑on
by a Ford Bronco driven by the defendant.
Martin died as a result of his injuries sustained in the collision. One of his passengers was confined to a
hospital for ten days with a skull fracture, two sprained ankles, and an injury
to his lower back; the other passenger
suffered a bruised and chipped hip.
When the
police arrived at the accident scene, they noticed that both vehicles that had
been in the head‑on collision were in the northbound lane. The defendant was not at the scene, and a
police officer was dispatched to the defendant's home, which was located
nearby. The officer was informed by the [36 Mass.App.Ct.
196] defendant's father that the
Bronco belonged to his son, who had just arrived home and was upstairs.
After
being called by his father, the defendant came downstairs, wearing pajama
bottoms, a shirt and no shoes. Upon
being questioned by the officer, the defendant responded that he had been in an
accident and came home in order to call an ambulance. The defendant told the officer that the
accident occurred when a vehicle had swerved into his lane and hit his vehicle
head‑on. The officer noticed that
the defendant's voice sounded "thick" and that the defendant slurred
his words. The officer also noticed that
the defendant had a bloody nose, a cut lip and what appeared to be a fresh
bruise over one eye. The defendant
declined the officer's offer to take him to the hospital for medical treatment.
The
defendant agreed to return to the accident scene with the officer. The defendant's father also drove to the
accident scene. After the defendant
entered the cruiser, the officer advised the defendant of his Miranda rights.
At the
accident scene, the defendant informed a detective investigating the accident
that he had gone to a bar in Providence, Rhode Island, at 9:00 P.M., drank two
vodkas mixed with grapefruit juice, and left between 11:00 P.M. and 11:30 P.M. He dropped a friend off and then proceeded to
North Attleborough by route 95. After leaving route 95, he drove south on
route 152. As he was traveling south, a
vehicle traveling north approached him in his lane. The defendant stated that he swerved to the
opposite side of the road to avoid a collision.
As he did so, however, the other vehicle swerved back into its proper
lane and a head‑on collision occurred.
The defendant stated that he left his automobile and went to his house,
which was near the scene of the accident, to call the fire or police
department.
Upon
hearing the defendant's story, the officer commented to him that there were no
swerve marks coming from the southbound lane into the northbound lane but that
there were straight skid marks, about thirty feet in length, left by the
defendant's vehicle in the northbound lane up to the point of impact.
[36 Mass.App.Ct.
197] During the defendant's
recitation, the detective observed that the defendant was unsteady on his feet,
his eyes were red and glassy, and he had an odor of alcohol about him. Another officer asked the defendant if he
would submit to field sobriety tests.
The defendant agreed. As a result
of the defendant's performance of the tests, the defendant was arrested for
operating a motor vehicle while under the influence of liquor. As the defendant was being driven to the
police station, he recited the alphabet over and over in a singsong manner,
asking, "How's that? Is that a lot
better?"
The police
investigation continued at the accident scene.
Two damaged telephone poles were observed two tenths of a mile from the
scene of the collision. They were
alongside the southbound lane, the same lane in which the defendant was traveling before
the accident. The first telephone pole
(approaching the accident scene from the north) was missing a piece about
fourteen inches from the ground and appeared to have been scraped about four
and one‑half feet up the pole. It
appeared to have been side‑swiped.
Tire tracks were visible on the grassy dirt area running from the first
pole to the second pole. The second pole
(132 feet from the first pole) was cracked in half, and a metal pole, attached
to the wooden pole, was bent. A cracked
Ford insignia from a vehicle's grille was discovered inside a hole in the
pole. An examination of the defendant's
grille showed that it was missing the Ford insignia. In addition, a piece of wood was wedged
between the right front tire and the rim of the defendant's vehicle.
An
accident reconstruction expert testified for the Commonwealth. In his opinion, the Martin vehicle had been
traveling between twenty and forty miles per hour and the defendant's vehicle
between forty‑five to fifty‑five miles per hour at the time of the
collision. He also opined that the
defendant's vehicle had been in the wrong lane for almost 100 feet before the
collision and that the Martin vehicle was, at all times, in its proper
lane. In the witness's opinion, the
defendant's explanation of the accident‑‑that he was in the southbound
lane when he saw a vehicle in his lane which [36 Mass.App.Ct. 198] caused him to turn left into the northbound lane just as the
other vehicle did‑‑was not possible as the operators of the
vehicles would have been unable to see each other because one vehicle was
traveling around a curve and the other vehicle was traveling up a hill.
At the
close of the Commonwealth's evidence, there was sufficient evidence from which
the jury could find beyond a reasonable doubt that the defendant operated his
motor vehicle while under the influence of intoxicating liquor, recklessly and
negligently, and by such operation caused serious bodily injury. The defendant admitted that prior to the
accident he had consumed two drinks that contained alcohol. There was evidence that after consuming the
alcoholic drinks, the defendant while operating his motor vehicle crashed into
two telephone poles, crossed the center line of the road, and traveled between
forty‑five and fifty‑five miles per hour in the wrong lane for at least
100 feet until he collided with the Martin vehicle, killing Martin and causing
serious bodily injuries to at least one of the passengers. After the accident, he was unsteady on his
feet, his eyes were red and glassy, he had an odor of alcohol about him, and he
failed field sobriety tests.
The
Commonwealth also presented sufficient evidence to justify sending the
manslaughter indictment to the jury under the required finding standard. It was the Commonwealth's theory at trial
that the defendant's actions constituted the crime of involuntary
manslaughter. "Involuntary
manslaughter is defined as an unlawful homicide unintentionally caused by an
act that constitutes such a disregard of the probable harmful consequences to
another as to amount to wanton or reckless conduct." Commonwealth v. Jones, 382
Mass. 387, 389‑390, 416 N.E.2d 502 (1981). The jury could have concluded that the manner
in which the defendant operated his motor vehicle after consuming alcoholic
beverages, including its speed, the striking of the telephone poles, the
failure to stop afterwards, the crossing of the center line of the road and
continuing on for a distance before colliding with the victim's vehicle,
constituted wanton or reckless conduct.
[36 Mass.App.Ct.
199] Because the defendant filed a
motion for required findings of not guilty at the close of all the evidence,
"[w]e consider the evidence at [that stage] to determine whether the
Commonwealth's position as to proof had deteriorated since it had closed its
case." Commonwealth v. Basch,
386 Mass. 620, 622 n. 2, 437 N.E.2d 200 (1982).
The
defendant introduced evidence, through his father, challenging the
Commonwealth's position that the defendant was under the influence of liquor
while he was operating his motor vehicle.
Other witnesses testified that it was very foggy at the time of the
accident. An accident reconstruction
expert testified that, in his opinion, the accident happened in the manner
described by the defendant.
Inasmuch as the weight and credibility of the
evidence is "a matter wholly within the province of the jury," Commonwealth v. Martino, 412 Mass. 267,
272, 588 N.E.2d 651 (1992), "there was nothing compelling in this evidence
which caused the prosecution's case to deteriorate." Commonwealth v. Walker, 401
Mass. 338, 343‑344, 516 N.E.2d 1143 (1987). The judge properly denied the defendant's
renewed motion for required findings of not guilty filed at the close of all
the evidence. (FN3)
2. Denial of defendant's motion to dismiss the
indictments. General Laws c. 263, §
5A, as amended by St.1983, c. 557, provides in part: "A person held in custody at a police
station ... charged with operating a motor vehicle while under the influence of
intoxicating liquor, shall have the right, at his request and at his expense,
to be examined immediately by a physician selected by him. The police official in charge of such station
..., or his designee, shall inform[36
Mass.App.Ct. 200] him of such right immediately upon being
booked, and shall afford him a reasonable opportunity to exercise it."
The
defendant filed a motion to dismiss the indictments. In addition, the defendant later filed a
motion to suppress any references by the police at the trial to the consumption
of alcohol by the defendant and any testimony concerning the opinions the
police may have had about whether the defendant was intoxicated. The basis of both motions was a claim that
the police violated G.L. c. 263, § 5A, by failing to
notify the defendant of his right to an independent examination by a physician
at his own expense and also by denying him a reasonable opportunity to exercise
that right. The judge held an
evidentiary hearing on the defendant's motion to dismiss. After the hearing, the judge filed a
memorandum of decision which contained her findings of fact and rulings of
law. She denied the defendant's motion
to dismiss in its entirety. Later, she
incorporated the findings on the motion to dismiss in her denial of the motion
to suppress. The defendant claims error.
We summarize
the judge's findings of fact. Both the
defendant and his father are attorneys.
When the defendant was taken to the police station, his father followed
in his own vehicle. At the station, the
father identified himself as an attorney representing his son and was asked to
wait about ten minutes while the booking procedure and paperwork were
completed. Following the wait, the
father was escorted to the cellblock area where he found the defendant and a
police officer engaged an argument.
The police
had twice asked the defendant to take a breathalyzer test, but he refused. Instead, he requested a blood test to
determine the amount of alcohol in his blood but was told by the officer that
the police were not required to allow him to have a blood alcohol content test
because he had refused to take the breathalyzer test.
The father
interjected and stated that, pursuant to G.L. c. 263,
§ 5A, the defendant did have a right to a blood alcohol content test. After reading the text of G.L.
c. 263, § 5A, which was posted on a wall in the station, the officer reversed [36 Mass.App.Ct.
201] his position and agreed with
the defendant's father. (FN4) The officer stated, however, that under the
statute it was the defendant's responsibility to have a physician come to the
police station in order to administer the test.
Noting the virtual impossibility of obtaining the services of a
physician who would come to the police station, the father requested that the
police transport the defendant to a hospital which was four‑tenths of a
mile from the police station. The police
reminded the defendant that he had declined medical treatment and repeated that
the police had no obligation to take him to the hospital for a blood alcohol
content test. Sometime after the defendant
made his request, an officer, one Bennett, went to the hospital to check on the
condition of the injured passengers.
Although the police could have transported the defendant to the hospital
at that time, they did not do so.
Approximately
two hours after his arrest, the defendant was released on bail. He and his father drove directly to the
emergency room of the hospital and requested a blood alcohol content test. They were informed by a physician that it [36 Mass.App.Ct.
202] was the policy of the hospital
not to extract a suspect's blood for alcohol testing without a police officer
present. The defendant telephoned the
police station and was told by the officer in charge that he did not know if he
could spare an officer at that time and that the defendant should call
back. When he did, the defendant was
informed that he was no longer in custody and that the police had decided not
to get involved any further. The defendant
and the father then drove home.
[3] a. Lack
of notice to the defendant. In
order to comply with G.L. c. 263, § 5A, the police
must notify the defendant of his right to request an independent physical
examination at his own expense. Commonwealth v. Andrade, 389 Mass. 874,
876‑877, 453 N.E.2d 415 (1983).
Here, the judge found that the police did not advise the defendant of
his right to such an independent examination.
She ruled, however, that the action of the police was not deliberate or
intentional misconduct but, rather, was an honest mistake about the application
of the law which the police corrected when they reviewed the statute. Further, the judge concluded that the
defendant was not prejudiced by the lack of notice because the defendant is an
attorney and was aware of his right to an independent examination, as was his
father acting as the defendant's attorney.
The defendant, however, claims that his motion to dismiss the
indictments should have been allowed because the law demands strict compliance
with the notice requirement of G.L. c. 263, § 5A,
and, therefore, once the judge ruled that there was a violation of G.L. c. 263, § 5A, she should have dismissed the
indictments.
[4] We
agree with the defendant that "strict compliance with the requirements of G.L. c. 263, § 5A, should be the unaltered practice," Commonwealth v. Gruska,
30 Mass.App.Ct. 940, 942, 570 N.E.2d 164 (1991),
unless exigent circumstances are present that might justify a police officer's
failure to notify the defendant of his right to a physical examination. See
Commonwealth v. Andrade, 389 Mass. at 879, 453 N.E.2d 415. Notice is important because, by enacting G.L. c. 263, § 5A, the Legislature "create[d] a right
to obtain evidence that is available [36
Mass.App.Ct. 203]
for only a short period of time and also [sought] to protect this right by
requiring that the defendant be informed of its existence." Id.
at 881, 453 N.E.2d 415.
"[E]ach
case must be considered on its own set of facts...." Commonwealth v. Andrade, supra
at 878, 453 N.E.2d 415. Here, the
undisputed evidence shows that shortly after the defendant arrived at the
police station, he requested an independent examination by a physician. This evidence clearly establishes that the
defendant, perhaps because he was an attorney, was well aware of his rights pursuant to G.L.
c. 263, § 5A. In the rather unusual
circumstances of this case, "literal compliance would not have afforded
the defendant notice beyond that required by the statute."
Commonwealth v. Gruska, supra, 30 Mass.App.Ct. at 941, 570 N.E.2d 164. Therefore, we hold that the failure of the
police to notify the defendant that he was entitled to an examination by a
physician of his own choice was "inconsequential."
Commonwealth v. Ames, 410 Mass. 603, 608, 574 N.E.2d 986
(1991). The violation did not require
dismissal of the complaints. We hasten
to add, however, that the police should comply with the statute, regardless of
a defendant's profession or occupation.
[5] b. The defendant's attempt to obtain a G.L. c. 263, § 5A, examination. The defendant claims that the police both
failed to take any action to assist the defendant and hindered the defendant's
efforts to obtain an independent examination pursuant to G.L.
c. 263, § 5A. The judge rejected the
defendant's claim. There was no error.
"General
Laws c. 263, § 5A, requires that the police provide the defendant with 'a
reasonable opportunity to exercise his right to an examination by a physician
of his choice at his request and expense.' " Commonwealth v. Lindner,
395 Mass. 144, 146, 478 N.E.2d 1267 (1985), quoting from Commonwealth v. Alano, 388 Mass. 871,
878, 448 N.E.2d 1122 (1983). Under the
statute, "the police must not prevent or hinder an individual's timely,
reasonable attempts to obtain an independent examination, but they need not
assist him." Commonwealth v. Alano,
supra at 879, 448 N.E.2d 1122.
"[The] statute places primary responsibility for an independent[36 Mass.App.Ct.
204]
blood test in the hands of the defendant, not the police."
Commonwealth v. Lindner, supra, 395 Mass. at 148, 478 N.E.2d 1267.
The police
were not required to "transport [the] defendant to [the hospital] to
obtain an independent test...." Commonwealth v. Rosewarne,
410 Mass. 53, 55, 571 N.E.2d 354 (1991).
It follows that the police were also not obligated to go to a hospital
or similar place at the defendant's request in order to assist him in obtaining
an examination.
The fact
that the hospital was nearby or that the police were available to transport the
defendant to the hospital, or to go to the hospital at his request, is not
relevant. It is clear that the police
are not under any duty to assist a defendant in obtaining a physical
examination or a blood alcohol content test.
The proximity of a hospital to the place of custody or the availability
of the police does not create a duty where none has existed. To hold otherwise would mean that those
defendants arrested for operating under the influence who are brought to police
stations on "slow" nights or who are brought to police stations
located near hospitals would be entitled to more opportunities under G.L. c. 263, § 5A, than defendants who are arrested on
"busy" nights or who are brought to police stations located some
distance from a hospital. That, surely,
was not the intent of the Legislature.
The
hospital is a private institution, and the judge found that its policy of not
taking blood from a defendant was entirely self‑serving and established
with the idea of keeping its staff, as much as possible, out of court. There was evidence to support that finding. There was no evidence that the hospital's
policy was dictated or arranged by the police.
There were
no errors in the denial of the motions.
Judgments affirmed.
Order denying motion for new trial affirmed.
(FN1.) The defendant was the subject of additional
indictments charging him with (1) operating a motor vehicle while under the
influence of intoxicating liquor, (2) operating negligently so as to endanger,
(3) failure to stop after causing personal injury (three counts), and (4)
failure to stop after causing property damage (three counts).
At the close
of the Commonwealth's evidence and again at the close of all the evidence, the
defendant filed motions for required findings of not guilty and for the
dismissal of duplicative indictments.
The judge allowed the motion for required findings of not guilty in
regard to the indictments which charged the defendant with failure to stop
after causing personal injury and failure to stop after causing property
damage. The judge allowed the motion to
dismiss as duplicative those indictments which charged the defendant with
operating a motor vehicle while under the influence and operating a motor
vehicle so as to endanger.
(FN2.) Additional facts will be related in
part 2 of this opinion when we consider the defendant's claim that the police
violated the provisions of G.L. c. 263, § 5A.
(FN3.) The defendant filed a motion for a new
trial on the ground that the guilty verdict on the manslaughter indictment was
against the weight of the evidence. The
judge denied the motion, and the defendant claims error.
A
verdict that is against the "weight of the evidence" has been
expressed as the verdict being "so far against the general current of the
evidence that to allow the verdict[ ] to stand without retrial would invoke a
serious risk of perpetrating an injustice...." Commonwealth v. Woods, 382
Mass. 1, 7, 413 N.E.2d 1099 (1980). A
trial judge's decision to deny such a motion is within his or her discretion. Id.
at 8, 413 N.E.2d 1099. On this record,
there was no abuse of the judge's discretion.
(FN4.)
The source of the officer's mistake probably came from a misunderstanding on
his part of the different purposes of G.L. c. 90, §
24(1)(e ), and G.L.
c. 263, § 5A.
General
Laws c. 90, § 24(1)(e ), "does
not confer a right to a chemical test, such as a breathalyzer, on one arrested
for driving under the influence. Rather,
it provides that, if the police administer a chemical test, the test [result]
is not admissible [at trial] unless the defendant received the specified
protections, including an opportunity to secure an independent test."
Commonwealth v. Alano, 388 Mass. 871, 875,
448 N.E.2d 1122 (1983). "[A]
defendant is not entitled to an independent test under [G.L.
c. 90, § 24(1)(e),] unless the police
first administer one." Ibid.
Here,
the defendant refused to take a police‑administered breathalyzer
test. Therefore, he was not entitled to
an independent test under G.L. c. 90, § 24(1)(e ).
However,
under G.L. c. 263, § 5A, a person arrested for operating
under the influence of intoxicating liquor has a right, at his own expense, to
be examined by a physician selected by him, and that examination may include a
chemical blood alcohol content test. Commonwealth v. Alano,
supra at 875, 448 N.E.2d 1122.
The
right given to the defendant by G.L. c. 263, § 5A, is
separate from G.L. c. 90, § 24(1)(e ), and does not depend on the
defendant's acceptance or rejection of a police‑administered test.