Com. v. Berggren

• Decision Date: 26 August 1986
• Citation: 398 Mass. 338,496 N.E.2d 660
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Lars R. BERGGREN.

Page 660

496 N.E.2d 660

398 Mass. 338

COMMONWEALTH v. Lars R. BERGGREN.

Supreme Judicial Court of Massachusetts Barnstable.

Argued May 6, 1986.

Decided Aug. 26, 1986.

John M. Connolly, Falmouth, for defendant.

Don L. Carpenter, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

LYNCH, Justice.

The defendant is awaiting trial before a jury of six in the Barnstable Division of the District Court on a complaint charging him with motor vehicle homicide by negligent operation of a motor vehicle so as to endanger public safety (G.L. c. 90, § 24G(b) [1984 ed.] ). ¹ The District Court judge granted the joint motion to "report an issue" to the Appeals Court pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979). We transferred the report here on our own motion.

We summarize the stipulated facts. On March 29, 1983, about 8:28 P.M., Patrolman Michael Aselton of the Barnstable police department was on radar duty at Old Stage Road in Centerville. He saw the defendant's motorcycle speed by him and commenced pursuit in a marked police cruiser with activated warning devices. The defendant "realized a cruiser was behind him but did not stop because he was 'in fear of his license.' " The pursuit lasted roughly six miles through residential, commercial and rural areas. At one point, the defendant had gained a 100-yard lead and crossed an intersection, continuing north. The patrolman's cruiser approached the intersection at about "76 m.p.h. minimal" and passed over a crown in the roadway which caused the patrolman to brake. The wheels locked and the cruiser slid 170 yards, hitting a tree. Patrolman Aselton died as a result of the impact. The defendant had no idea of the accident which had occurred behind him. "No other vehicles were in any way involved in the causation of the accident." The stipulation further states that the decision to terminate a high speed chase "is to be made by the officer's commanding officer." No such decision to terminate the pursuit had been made at the time of the accident. The Barnstable police department determined that patrolman Aselton died in the line of duty.

We understand the report to raise the question ² whether the stipulated facts would be sufficient to support a conviction of motor vehicle homicide by negligent operation under G.L. c. 90, § 24G (b). ³ We hold that it is.

A finding of ordinary negligence suffices to establish a violation of § 24G. Commonwealth v. Jones, 382 Mass. 387, 389, 416 N.E.2d 502 (1981), and cases cited. Commonwealth v. Diaz, 19 Mass.App.Ct. 29, 36, 471 N.E.2d 741 (1984). See 20 A.L.R.3d 473, 476-479 (1968), and cases collected (A showing of ordinary negligence has generally been held or recognized as sufficient to convict an accused under a "vehicular negligent homicide statute" where [as in Massachusetts] the term "negligence" appears without qualification or modification). The Appeals Court has observed: "It would seem to follow that if the jury's task is to find ordinary negligence, then the appropriate principles of causation to apply are those which have been explicated in a large body of decisions and texts treating the subject in the context of the law of torts." Commonwealth v. Diaz, supra. See Commonwealth v. Geisler, 14 Mass.App.Ct. 268, 276, 438 N.E.2d 375 (1982); Commonwealth v. Burke, 6 Mass.App.Ct. 697, 699-700 & n. 3, 383 N.E.2d 76 (1978). The defendant argues, however, that the "causation theory properly applied in criminal cases is not that of proximate cause." Commonwealth v. Lang, 285 Pa.Super. 34, 42-43, 426 A.2d 691 (1981), citing Commonwealth v. Root, 403 Pa. 571, 576-580, 170 A.2d 310 (1961), and Commonwealth v. Redline, 391 Pa. 486, 504-505, 137 A.2d 472 (1958). If this theory has any application in this Commonwealth (see Commonwealth v. McLeod, 394 Mass. 727, 735, 477 N.E.2d 972 [1985]; Commonwealth v. Rhoades, 379 Mass. 810, 824, 401 N.E.2d 342 [1980] ), it does not apply to a charge of negligent vehicular homicide. We adopt instead the suggestion of the Appeals Court and conclude that the appropriate standard of causation to be applied in a negligent vehicular homicide case under § 24G is that employed in tort law.

The defendant essentially contends that since he was one hundred yards ahead of the patrolman's cruiser and was unaware of the accident, his conduct cannot be viewed as directly traceable to the resulting death of the patrolman. ⁴ The defendant, however, was speeding on a motorcycle at night on roads which his attorney at oral argument before this court characterized as "winding" and "narrow." He knew the patrolman was following him, but intentionally did not stop and continued on at high speeds for six miles. From the fact that the defendant was "in fear of his license," it may reasonably be inferred that he was aware that he had committed at least one motor vehicle violation. Under these circumstances, the defendant's acts were hardly a remote link in the chain of events leading to the patrolman's death. Commonwealth v. Rhoades, supra at 824, 401 N.E.2d 342. The officer's pursuit was certainly foreseeable, as was, tragically, the likelihood of serious injury or death to the defendant himself, to the patrolman, or to some third party. The patrolman's death resulted from the "natural and continuous sequence" of events caused by the defendant's actions. Commonwealth v. McLeod, supra at 735-736, 477 N.E.2d 972. ⁵

We conclude that the proper standard of causation for this offense is the standard of proximate cause enunciated in the law of torts. We further conclude that, should the jury find the facts as stipulated in the instant case, and should the only contested element of the offense of motor vehicle homicide by negligent operation be that of causation, these facts would support a conviction under G.L. c. 90, § 24G(b).

1 He was also charged with operating negligently to endanger (G.L. c. 90, § 24), and failing to stop for a police officer G.L. c. 90, § 25). The stipulated facts also state that a complaint issued for failure to...