By the Court (Milkey, Carhart & Massing, JJ.), Clerk
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
A Superior Court jury convicted the defendant of one count of felony motor vehicle homicide, and of one count of operating a motor vehicle under the influence of liquor. On appeal, he argues that: 1) there was insufficient evidence as to one element of the crime of felony motor vehicle homicide, and 2) errors in the judge's instructions regarding the lesser included offense of operating a motor vehicle under the influence, effectively precluded the jury from considering that alternative. We affirm except as to the conviction that was placed on file.
The finding of guilty of the lesser included offense was placed on file without the defendant's consent. Generally, a conviction that is placed on file is not appealable since there is no judgment from which an appeal can be taken. See Commonwealth v. Caetano, 470 Mass. 477, 776 (2015). However, "[w]e have recognized that a defendant has a right to appeal a conviction on file without [his] consent." Id. at 777. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975).
Sufficiency. To make out a case of felony motor vehicle homicide, the Commonwealth must prove, inter alia, that the defendant had driven his vehicle in a reckless or negligent manner. G. L. c. 90, § 24G(a). The defendant argues that the Commonwealth's proof of that element was insufficient as a matter of law. In assessing that claim, we review the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
The victim was a pedestrian who was crossing the street when the defendant hit him with his car. In addition to the Commonwealth's evidence that the defendant was inebriated, the jurors also viewed the scene of the accident, heard evidence regarding the weather and lighting conditions, and heard expert testimony about the defendant's perception and reaction time when the victim entered the road. Based on the Commonwealth's evidence, rational jurors could have found, beyond a reasonable doubt, that the defendant could have avoided hitting the victim but for his inattention to the road or slow reaction time. Such evidence amply supported a jury finding that the defendant was driving negligently when he killed the victim. See Commonwealth v. Zevitas, 418 Mass. 677, 678-680 (1994) (evidence of negligence sufficient where defendant did not see victim and failed to avoid hitting him).
Jury instructions. As the parties now agree, the judge's instructions regarding the lesser included offense of misdemeanor motor vehicle homicide contained two errors. The first was the judge's instructing the jury that this offense required proof, inter alia, that the defendant was driving under the influence of alcohol. This was error because someone can be convicted of misdemeanor motor vehicle homicide by proof that the defendant was driving under the influence or that he was operating recklessly or negligently. See Commonwealth v. Williams, 73 Mass. App. Ct. 833, 839-840 (2009); G. L. c. 90 § 24G(b). The second error was that the judge -- in listing elements of misdemeanor vehicular homicide -- neglected to mention that the defendant's operation of the vehicle had to cause someone's death. No objection to the errors was lodged. Our review is therefore limited to whether the errors caused a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The Commonwealth asserts that where, as here, a jury convicted a defendant of a greater offense after having been properly instructed as to that offense, any error in the instructions as to a lesser included offense per se cannot constitute reversible error. The defendant counters by pointing to cases that turn in part on the fact that the jury were not instructed on a lesser included offense. See Commonwealth v. Tavares, 471 Mass. 430, 442 (2015). We need not reach the Commonwealth's categorical arguments because we conclude that, in any event, the errors in the instructions here created no substantial risk of a miscarriage of justice.
Notably, although the judge erroneously suggested that driving under the influence was an element of misdemeanor motor vehicle homicide, she went on to state that the Commonwealth had to prove, as an element of that offense, "that the defendant operated the motor vehicle either while under the influence of alcohol or, in the alternative, that the defendant operated the motor vehicle recklessly or negligently so that lives or safety of the public might have been endangered" (emphasis supplied). Then, she correctly summarized the difference between felony and misdemeanor vehicular homicide as follows:
"Thus, the difference between the felony and misdemeanor offense of vehicular homicide is that the felony requires proof beyond a reasonable doubt of both operating under the influence of alcohol and operating recklessly or negligently so that the lives or safety of the public might have been endangered, but the misdemeanor requires proof beyond a reasonable doubt of only one of these."
We think this correct statement of the law went a long way toward curing the earlier misstatement. See generally
Commonwealth v.
Campbell,
378 Mass. 680, 706 (1979) ("We have repeatedly said that a charge must be construed as a whole and that, in consequence, isolated misstatements or omissions do not necessarily constitute reversible error").
Moreover, the key issue in dispute at trial was whether the defendant had driven negligently, and nothing in the judge's instructions on misdemeanor motor vehicle homicide suggested to the jury that they had to find that he had driven negligently in order to convict him of that offense. As a result, convicting the defendant of misdemeanor motor vehicle homicide remained very much in play even if the jury accepted the judge's earlier misstatement that misdemeanor motor vehicle homicide required proof that the defendant was driving under the influence. Therefore, the error could not have, as the defendant argues, in practical effect, meant that the jury were precluded from considering the lesser included option. Rather, it is evident that in convicting the defendant of the greater offense, the jury in the end were convinced beyond a reasonable doubt that the defendant had driven negligently.
On that point, the Commonwealth presented overwhelming proof that the defendant was intoxicated, so for purposes of the jury's consideration of the lesser included offense, it mattered little if the jury believed such proof was required.
The defendant's argument that the failure of the judge to mention causation in the context of the misdemeanor motor vehicle homicide instruction has even less force. Especially where the judge accurately highlighted to the jury what the difference between the two offenses was, and the jury knew that both offenses were a form of "homicide," we think it implausible the jury thought causation was beside the point for the lesser included offense. Moreover, the omission of the element, if anything, made it easier for the jury to find the defendant guilty of the misdemeanor. The jury were accurately instructed that they had to find that the defendant caused the victim's death in order to convict him of the greater offense, and the jury did so find. There was no substantial risk of a miscarriage of justice.
Finally, we note the defendant was also found guilty of driving under the influence, and that finding was placed on file without the defendant's consent pending appeal. As the parties agree, driving a motor vehicle under the influence of liquor is a lesser included offense of felony motor vehicle homicide; we therefore vacate the conviction, set aside the verdict, and dismiss the indictment of driving under the influence of intoxicating liquor, and affirm the judgment of motor vehicle homicide.
So ordered.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: November 20, 2015.