Com. v. Burke

• Decision Date: 27 November 1978
• Citation: 383 N.E.2d 76,6 Mass.App.Ct. 697
• Parties: COMMONWEALTH v. Richard F. BURKE.
• Court: Appeals Court of Massachusetts

Page 76

383 N.E.2d 76

6 Mass.App.Ct. 697

COMMONWEALTH v. Richard F. BURKE.

Appeals Court of Massachusetts, Norfolk.

Argued Oct. 10, 1978.

Decided Nov. 27, 1978.

Eugene F. Sullivan, Sr., Boston (Eugene F. Sullivan, Jr., Boston, with him), for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and ROSE and ARMSTRONG, JJ.

ROSE, Justice.

The defendant was tried by a jury in the Superior Court on seven indictments, and convicted on five: motor vehicle homicide, operating a motor vehicle negligently so as to endanger the lives and safety of the public, two charges of leaving the scene after causing personal injury, and leaving the scene after causing property damage. He was found not guilty on two indictments: operating a motor vehicle while under the influence of intoxicating liquor, and operating under the influence and thereby causing death. The indictments were based on the events of an accident which occurred on October 26, 1976, at approximately 7:30 P.M., on Route 126 in Bellingham, involving the defendant's tractor-trailer. As a result of the accident, a four-year-old child was killed and her father seriously injured.

The case is before us on the defendant's substitute bill of exceptions. The defendant argues (1) that G.L. c. 90, § 24G, inserted by St.1976, c. 227, is unconstitutionally vague since it does not sufficiently designate the conduct proscribed; (2) that the trial judge's charge to the jury on ordinary negligence rather than wanton or reckless conduct was erroneous; (3) that the trial judge erred in denying the defendant's motion to suppress statements made by the defendant to police officers; (4) that the trial judge erred in denying the defendant's motion to dismiss the indictments on the ground that the nolle prosequi of complaints in the District Court by the district attorney after indictments were returned by the grand jury was an abuse of the district attorney's discretion; and (5) that the trial judge erred in allowing an object not admitted in evidence to remain in the presence of the jury until the last day of trial. We find that none of the defendant's contentions warrants reversal of his convictions.

1. We turn first to the defendant's contention that G.L. c. 90, § 24G, under which he was convicted of the negligent operation of a motor vehicle resulting in death, is unconstitutionally vague. ¹

To satisfy due process requirements, a criminal statute must be sufficiently clear so as to give notice of the conduct it prohibits. Commonwealth v. A Juvenile, 368 Mass. 580, 597, 334 N.E.2d 617 (1975); Commonwealth v. Bohmer, --- Mass. ---, ---, ^A 372 N.E.2d 1381 (1978). If the terms of the statute are "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application," Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), the statute is void for vagueness. A statute will not fail for vagueness if it provides a comprehensible normative standard, "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with . . . ." Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973), quoting from United States Civil Serv. Comm. v. National Ass'n of Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). See COMMONWEALTH V. ORLANDO, --- MASS. ---, 359 N.E.2D 310 (1977)^B.

We are of the opinion that the motor vehicle homicide statute satisfies the due process criteria. In explicit language, the Legislature has set forth those elements necessary to find criminal culpability under § 24G, relevant to this indictment: (1) operation of a motor vehicle, (2) upon a public way, (3) recklessly or negligently so as to endanger human life or safety, (4) thereby causing the death of a person. The defendant argues that the term "negligently" does not afford sufficient notice to those who must be guided by the statute. We do not agree. While this aspect of § 24G has not previously been construed by the courts of the Commonwealth, the standard of "negligence" has been fully explicated in numerous Massachusetts decisions (see e. g., Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919); Galliher v. Stewart, 310 Mass. 77, 80, 37 N.E.2d 125 (1941); Beaver v. Costin, 352 Mass. 624, 626, 227 N.E.2d 344 (1967); Goldstein v. Gontarz, 364 Mass. 800, 805, 309 N.E.2d 196 (1974); Scott v. Thompson, --- Mass.App. ---, --- - ---, ^C 363 N.E.2d 295 (1977)), and has been defined in many treatises (e. g., Harper & James, Torts §§ 16.2, 16.9 (1956); Prosser, Torts §§ 30-32 (4th ed. 1971); Restatement (Second) of Torts §§ 282, 283 (1965)).

We point out that the language in § 24G is modelled closely after that in § 24(2)(A ), as amended through St.1975, c. 156, § 1, prohibiting the negligent or reckless operation of a motor vehicle so as to endanger the lives or safety of the public. ² Prior to inclusion of the element of negligence in § 24, that section withstood a constitutional attack for vagueness in Commonwealth v. Pentz, 247 Mass. 500, 143 N.E. 322 (1924). After revision of § 24, by St.1928, c. 281, § 1, the negligence of a defendant became a material element of the operating to endanger offense. ³ See Commonwealth v. Charland, 338 Mass. 742, 157 N.E.2d 538 (1959); Commonwealth v. Pearson, 360 Mass. 851, 274 N.E.2d 346 (1971).

We conclude that the Legislature has clearly and sufficiently delineated the conduct prohibited by § 24G. Given the well-settled and comprehensible definition of negligence in the law of Massachusetts, we hold that § 24G provides a person of ordinary intelligence with sufficient notice of that conduct which is prohibited by the statute, and is therefore not unconstitutionally vague.

2. We find no error in the judge's instructions to the jury, defining ordinary negligence, rather than wanton or reckless conduct, as the standard applicable to the indictment charging the defendant with negligent motor vehicle homicide under § 24G. The defendant's reliance on Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944) is misplaced, since that case was governed by the law applicable to the crime of manslaughter. The defendant's request for an instruction that guilt might only be predicated on wanton or reckless conduct was patently at odds with the express language of the statute. The fact that the standards provided by § 24G are stated in the disjunctive ("recklessly or negligently") indicates the Legislature's intent that a finding of ordinary negligence will suffice to establish a violation of the statute. We hold that the trial judge was correct in charging the jury on ordinary negligence.

3. We find no error in the denial of the defendant's motion to suppress statements made by him to police officers. We summarize the facts relevant to this motion which could have been found on the evidence introduced at the pretrial hearing.

Approximately one hour and a half after the accident on Route 126, Bellingham police officers located the defendant's tractor-trailer in Milford, parked in a K-Mart parking lot. When the defendant arrived at the parking lot at 9:15 P.M. to pick up his vehicle, he was approached by police officers who inquired, "Mr. Burke?" The defendant responded, "Are you from Bellingham? . . . Are you here about the accident?" According to the testimony of Sergeant Ayotte of the Bellingham Police Department, the defendant then voluntarily accompanied the police to the station house. En route, the defendant asked, "What did I hit, anyway?", and was told that the matter would be discussed at the police station. Sergeant Ayotte testified that upon their arrival at the station, he read the Miranda rights to the defendant and that the defendant then waived his right to remain silent and expressed a willingness to talk. The defendant responded to questions concerning the accident and said that he had been operating his tractor-trailer on Route 126 in Bellingham at approximately 7:30 P.M. He told the police that he believed he had struck a tree limb. The defendant took a breathalyser test at the request of the police and said that he had consumed several beers and several "shots" of whiskey upon returning home that evening some time after the incident. Sergeant Ayotte testified that, in his opinion, the defendant was under the influence of alcohol while at the police station.

At the pretrial hearing the defendant argued in support of his motion to suppress that he had been placed under arrest at the K-Mart parking lot and that he had been subjected to custodial interrogation at the police station for more than one-half hour before being apprised of his Miranda rights. He argued as a second basis for his motion that, even if Miranda rights were properly given, he was incapable of making a knowing and intelligent waiver because of his intoxicated condition when taken into custody. After hearing the testimony summarized above, the judge denied the defendant's motion. The judge stated that, in denying the motion, he had considered the factor of the defendant's intoxicated state.

a. The Miranda warnings. The Commonwealth had the burden of proving that the Miranda warnings were properly given. Commonwealth v. Smith, 2 Mass.App. 821, 822, 310 N.E.2d 143 (1974). The narrow issue before us is whether the evidence introduced at the pretrial hearing was sufficient to warrant the judge's denial of the motion to suppress. See Commonwealth v. Hogg, --- Mass.App. ---, ---, ^D 344 N.E.2d 924 (1976).

While the defendant's bill of exceptions does not include a statement of findings and rulings by the trial judge, we think that the denial of the motion to suppress implies a finding (see Commonwealth v. Barker, 311 Mass. 82, 88, 40 N.E.2d 265 (1942); Commonwealth v. Fournier, --- Mass. ---, --- - ---, ^E 361 N.E.2d 1294 (1977); Commonwealth v. Hogg, supra at ---, ^F 344 N.E.2d...