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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Platt,
Present:
The case was tried before Richard D. Savignano, J.
William W. Adams for the defendant.
Karen H. O'Sullivan, Assistant District Attorney, for the Commonwealth.
LENK, J.
After trial by jury, the defendant was
convicted of leaving the scene of an accident involving property damage,[1]
and of making a false report of a motor vehicle theft.[2] He appeals his
convictions, asserting that (1) the trial judge erred in denying his
motion for a required finding of not guilty after the Commonwealth had rested;
and (2) notwithstanding the defendant's failure to renew his motion for a
required finding of not guilty, the convictions should be set aside because the
Commonwealth's case had deteriorated between the time it rested and the
conclusion of all the evidence. As we reverse on the first ground, we need not
reach the second.
The evidence. "Since the defendant challenges the sufficiency of the
evidence supporting his convictions, we review the evidence in the light most
favorable to the Commonwealth." Commonwealth v. Geisler,
At approximately
The next day, the officer returned to the defendant's residence so that the
defendant could fill out a stolen motor vehicle report. The defendant told the
officer that his automobile had been stolen at about
Six days later, on June 28, an investigator from the defendant's motor vehicle
insurer interviewed the defendant at his house regarding the insurance claim he
had made. The defendant told the investigator that, on the night his automobile
was stolen, the defendant and his girlfriend had driven to a supermarket to
pick up some items. They began to argue and, at a traffic light, his girlfriend
got out of the automobile. The defendant then pulled over to the side of the
street, turned the automobile off, and ran after her, leaving the keys in the
ignition. When he later returned to the spot where he had left his automobile,
it was gone. He and his girlfriend then walked home. When the investigator
asked the defendant why he waited until
Motion for required finding. The defendant argues that it was error for the
trial judge to have denied his timely motion for a required finding of not
guilty. The issue turns solely on whether, viewing this evidence[3] in
the light most favorable to the Commonwealth, the jury could have found, beyond
a reasonable doubt, that the defendant and no other was the operator of his
automobile at the time of the accident.
There was no direct evidence that the defendant was the person driving the car
at the time of the accident. As noted in Commonwealth v. Geisler,
"In several cases of this sort,
circumstantial evidence has been held insufficient to permit a finding of guilt
to a moral certainty, and to the exclusion of any other reasonable hypothesis.
The matter before us falls somewhere along the
spectrum bounded, on the one side, by the Shea-Mullen[5] line of cases
and, on the other, by the Henry to Geisler[6] line of cases, which we
summarize in some detail in the margin.
The Commonwealth's evidence in the matter before us is more than was thought
insufficient in Shea and Mullen, yet less than was thought sufficient in the
six cases forming the Henry to Geisler line. Unlike Shea, there was evidence
that placed the defendant driving in his car at roughly the time of the
accident. Unlike Mullen, there was no physical evidence undercutting the
Commonwealth's contention that the accused was in the driver's seat.
What the Commonwealth presented was evidence of timing consistent with the
defendant's opportunity to have driven his car at the time of the accident,
shortly before 12:15 A.M., the accident's location less than a mile from the
defendant's house, a delay of five and one-half hours in his reporting the
approximately 12:15 A.M. theft of his car at a location within walking distance
of his house, his demeanor when initially reporting the theft, discrepancies in
the two recountings of the theft that he gave about a week apart, and two small
fresh abrasions seen on his person less than six hours after the collision. To
the extent the defendant's reported theft of his car is considered false, the
Commonwealth contends it may evidence consciousness of guilt.
The Commonwealth's physical evidence, both as to the damaged car and the
defendant's person, was not especially probative, one way or the other, on the
point of who was driving the car at the time of the collision. This is quite
unlike Mullen and Doyle. The car was found with its wheels in the air, having
sustained front end damage, a broken windshield, damage to the dash, and the
deployment of two airbags. There was no evidence of bloodstains in it that
might have been compared with the defendant's blood. The two superficial
injuries observed on the defendant were in themselves unremarkable and
inconclusive, and the Commonwealth failed to offer any expert testimony
"to remedy this obvious lacuna . . . [by] shed[ding] some
light on how . . . the [defendant's] injuries occurred."
While there was evidence that the defendant had been driving the car in the
relevant time period, there was also evidence that he reported it had been
stolen with the ignition key inside it, unlike Henry, Swartz, Rand, Smith and
Geisler, which turned in part on the defendant's sole possession and control of
the vehicle. See note 6, supra. Moreover, unlike Swartz, where the defendant's
silence and inaction for twenty-five hours after knowing his car had been taken
and damaged by an unauthorized person permitted the inference of his
consciousness of guilt, see Commonwealth v. Swartz, 343
While the question is quite a close one, we cannot be confident that
"[t]he inferences from the entire evidence warranted the jury in finding
that the defendant was operating his automobile at the time of the
accident." Commonwealth v. Henry, 338
Judgments reversed.
Verdicts set aside.
Judgment for defendant.
FOOTNOTES:
[1] G. L. c. 90, § 24(2)(a).
[2] G. L. c. 268, § 39.
[3] We do not discuss evidence offered on behalf of
the defendant following the close of the Commonwealth's evidence.
[4] It is undisputed that the defendant's vehicle
caused the accident. To the extent that the evidence does not support a jury
finding that the defendant was the operator of his automobile at the time of
the accident, it follows that the defendant's conviction for knowingly having
made a false written statement alleging theft of his motor vehicle cannot
stand.
[5] In Commonwealth v.
Shea, 324 Mass. 710, 712-714 (1949), the Commonwealth had not introduced any
evidence placing the defendant in the car on the date of the motor vehicle
accident, and there was evidence that another person had been driving the car
less than three hours before the accident in a different town.
In Commonwealth v. Mullen, 3 Mass. App. Ct. 25, 26 (1975), the evidence was
likewise insufficient to establish that the defendant had been driving the car
at the time of the 2:00 A.M. collision. The defendant was one of two occupants
in the car and had been found shortly after the accident, well clear of the
right rear side of the car, front passenger door agape, while the other
occupant had died still stuck inside. See ibid. Because this alone suggested
that the defendant had been in the passenger's and not the driver's seat, and
because the Commonwealth had called no witnesses, including experts, to shed
light on how any of the pair's injuries had occurred, the evidence was
insufficient to support the conviction. See id. at 26-27. That the defendant
owned the car, had driven it about six hours earlier in Quincy, and had made
comments evidencing consciousness of guilt, were not enough "to resolve
the uncertainty and permit a choice between, at the very most, equal
inferences."
[6] In Commonwealth v.
Henry, 338 Mass. 786 (1958), the apparently somewhat intoxicated defendant told
police, within an hour after his car had been involved in a hit-and-run
collision, that only he had driven the car that afternoon.
In Commonwealth v. Swartz, 343 Mass. 709, 709-710 (1962), the hit-and-run
collision took place at 10:00 P.M.; about a day later, police found the
defendant's car parked near his house, damaged in respects consistent with the
previous night's collision. The defendant acknowledged the car as his and
explained that he had parked it in front of a tavern about
In Commonwealth v. Rand, 363 Mass. 554, 561-562 (1973), the evidence was
sufficient where the defendant was shown to have been operating the same car as
had been involved, one-half hour earlier, in a hit-and-run accident on the same
street as that on which he was seen later driving, where the defendant had the
opportunity to operate the car at the time of the accident, had sole possession
of the ignition keys, and had not authorized anyone else to use the car.
In Commonwealth v. Smith, 368 Mass. 126, 127-129 (1975), the evidence justified
a finding that the subject car had been in the defendant's sole control for
several hours before the hit-and-run collision, that one person had been in the
car at the time of the collision, that the car was parked -- in a damaged
condition, with a warm radiator, and bearing paint marks consistent with the
other vehicle -- near where the defendant was found, within roughly an hour
after the accident. The fact finder
"did not have to believe the defendant's
statement that he had not been out for seven hours prior to the time of the
accident or that the vehicle had been stolen. If the vehicle had not been
stolen, the defendant's false report of the alleged theft within fifteen
minutes of the accident permitted an inference of his consciousness of
guilt."
In Commonwealth v. Doyle, 12 Mass. App. Ct.
786, 787 (1981), there was a one-car collision at 12:45 A.M. which left one
occupant dead and the other -- the defendant -- trying to extricate his
companion from the operable driver's side door, while the passenger's side door
was severely damaged and inoperable. Given this and other physical evidence
placing the deceased in the passenger's seat, as well as the defendant's
ownership of the car and his multiple evasive and conflicting statements
showing consciousness of guilt, the evidence sufficed to establish that the
defendant was the driver. See id. at 788-789.
In Commonwealth v. Geisler,