Com. v. Burnett

• Decision Date: 10 May 1994
• Citation: 632 N.E.2d 1206,417 Mass. 740
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Glen BURNETT.

Page 1206

632 N.E.2d 1206

417 Mass. 740

COMMONWEALTH v. Glen BURNETT.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued March 9, 1994.

Decided May 10, 1994.

Brownlow M. Speer, Boston, for the defendant.

Judith Ellen Pietras, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The defendant, Glen Burnett, appeals from his conviction of motor vehicle homicide. See G.L. c. 90, § 24G(a ) (1992 ed.). The defendant raises two issues on appeal. He alleges that it was error for the judge to preclude him from impeaching the credibility of a witness, the driver of the other vehicle, with his prior conviction for "operating to endanger." See G.L. c. 233, § 21, Fourth (1992 ed.). The defendant also challenges the judge's refusal to admit, as an excited utterance, an out-of-court statement made by the driver of the other automobile. We conclude that the judge's rulings were correct, and now affirm.

Facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). In the early morning of October 20, 1990, Leonard Besner and Thomas White were headed south in the left lane on Roosevelt Avenue in Springfield. Besner was driving. An automobile coming from the opposite direction, in rounding a corner, crossed over the double yellow line and collided with Besner's vehicle. As a result of the collision, Thomas White died of massive injuries due to blunt trauma. The defendant admitted that he was the driver of the second vehicle.

The evidence indicated that both drivers had consumed alcoholic beverages. Burnett testified that he had consumed a forty-ounce beer earlier in the afternoon. Besner testified that he drank two mixed drinks at a bar that night before driving. Blood samples revealed that Burnett's blood alcohol level was .17. Besner's blood alcohol level was .07.

Donna Morrissette and Kelly Connor were following approximately four automobile lengths behind Besner at the time of the accident. The two women met Besner and White earlier that evening at the bar. Connor and Besner were planning to go out to breakfast. Morrissette and Connor both testified that they saw Burnett's vehicle cross over the yellow line and hit Besner's car. In addition, a Springfield police officer assigned to the traffic bureau testified that he was able to determine, from the location of debris from the vehicles, that the point of impact was in Besner's lane of travel. The officer stated that a "head-on collision with some speed involved" was caused by the defendant's crossing the double line into Besner's lane.

Burnett said that he was driving north on Roosevelt Avenue with a friend, Tamara Henson, when he saw lights coming toward him in his lane. He attempted unsuccessfully to swerve to avoid hitting the automobile. He became unconscious as a result of the accident and remembered nothing after the moment of impact. Tamara Henson corroborated the defendant's version that Besner's automobile crossed over the line, causing the accident. Defense counsel argued to the jury that it was Besner, not the defendant, who crossed over the center line. He argued that the evidence showed Besner had been drinking. A jury convicted the defendant of motor vehicle homicide.

1. Evidence of prior convictions under G.L. c. 233, § 21, Fourth. General Laws c. 233, § 21, Fourth, provides, in relevant part: "The conviction of a witness of a crime may be shown to affect his credibility, except as follows: ... the record of his conviction for a traffic violation upon which a fine only was imposed shall not be shown for such purpose unless he has been convicted of another crime or crimes within five years of the time of his testifying."

The defendant sought to introduce evidence that Besner had a prior conviction for operating to endanger, for which he was fined $50. The defendant contends that "operating to endanger" is far more serious than the sort of offenses contemplated by G.L. c. 233, § 21, Fourth. He argues that the statute was not intended to exclude a more serious offense like operating to endanger which carries a possible penalty of two years imprisonment. See G.L. c. 90, § 24G(a ) (1992 ed.). The defendant asserts that it was error for the judge to deny him the opportunity to impeach Besner with a prior conviction. We do not agree.

The plain language of G.L. c. 233, § 21, Fourth, excludes convictions "for a traffic violation upon which a fine only was imposed." The use of the word "only" implies that some traffic violations will be serious enough to be punishable by imprisonment. The statute draws a distinction based on what punishment was actually imposed, not what punishment could possibly have been imposed. If a conviction for operating to endanger results in imprisonment, the conviction does not come within the terms of G.L. c. 233, § 21, Fourth. The judge correctly excluded the evidence because the conviction did not satisfy the requirements of G.L. c. 233, § 21. There was no error. ¹

2. Excited utterance. The defendant attempted to introduce a statement made by Besner at the hospital, one and one-half hours after the accident. The defendant's mother, Mrs. Burnett, overheard Besner say to Thomas White's sister that he and White had drunk a couple of beers, "some hard stuff," and had "smoked shorts." Defense counsel offered the statement, for its truth, on the basis of the spontaneous utterance exception to the hearsay rule.

"Under the spontaneous exclamation exception to the hearsay rule, 'a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.' " Commonwealth v. Fuller, 399 Mass. 678, 682, 506 N.E.2d 852 (1987), quoting Blake v. Springfield St. Ry., 6 Mass.App.Ct. 553, 556, 379 N.E.2d 1112 (1978). In determining whether an utterance meets the tests of admissibility, the trial judge ought to be given broad discretion. "[O]nly in clear cases ... of an improper exercise of discretion should his ruling be revised." Id., quoting Commonwealth v. McLaughlin, 364 Mass. 211, 223, 303 N.E.2d 338 (1973). See Commonwealth v. Zagranski, 408 Mass. 278, 285, 558 N.E.2d 933 (1990).

The judge held a...