Com. v. Campbell

• Decision Date: 19 February 1985
• Citation: 394 Mass. 77,474 N.E.2d 1062
• Parties: COMMONWEALTH v. John R. CAMPBELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1062

474 N.E.2d 1062

394 Mass. 77

COMMONWEALTH v. John R. CAMPBELL.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 9, 1984.

Decided Feb. 19, 1985.

John R. Campbell, pro se.

Joseph P. Musacchio, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant appeals from his conviction in the Superior Court of two counts of homicide by a motor vehicle while under the influence of an intoxicating substance. G.L. c. 90, § 24G(a ). ¹ The conviction arose from a 1982 motor vehicle accident resulting in the deaths of two pedestrians. We transferred the case here on our motion. We affirm.

The defendant argues that the judge erred by denying his motion for a required finding of not guilty because there was insufficient evidence of either the defendant's negligence or a causal relationship between the defendant's actions and the victims' deaths. Further, the defendant challenges the judge's decision to permit the jury to nominate a foreperson and argues that the judge impermissibly restricted the defendant's use of a District Court transcript to impeach a witness's credibility. He also contends that the judge improperly instructed the jury that simple negligence is a sufficient basis on which to convict the defendant of vehicular homicide under G.L. c. 90, § 24G (a ). In addition, the defendant argues that the substantive provisions of G.L. c. 90, § 24G, are unconstitutionally vague ² because a felony conviction under § 24G(a ) could result from the jury's inferring negligence from the fact of operating under the influence. This result, he asserts, impermissibly blurs the distinction between the elements required to be proved for a felony under subsection (a ) and a misdemeanor under subsection (b ) of G.L. c. 90, § 24G.

Although the defendant did not object at trial to the following points, he now argues them on appeal: (1) the judge failed to instruct the jury that, if the victims' conduct was the sole or proximate cause of the victims' deaths, then the defendant cannot be found guilty; (2) the judge should have instructed the jury that operating a vehicle under the influence is not alone sufficient to prove negligence because a person can still use reasonable and due care in driving; and (3) the prosecutor's closing argument was improper. We affirm.

We summarize the evidence. At approximately 8:15 P.M. on October 7, 1982, Serafina Mendes and August Silvia were struck on Route 28 in Stoneham by an automobile driven by the defendant. Silvia, eighty years of age, died at the scene of the accident and Mendes, sixty-five years of age, died approximately forty-five minutes after arriving at the hospital.

Route 28 in Stoneham has two northbound and two southbound lanes divided by a double yellow line. The posted speed limit is thirty-five miles an hour and on the evening of October 7, the area was well lit, ³ the road was dry, and there were no obstructions between the sidewalks and the road itself.

The defendant was traveling in the northbound lane. One Michael Scalisi was traveling southward in the passing lane on Route 28 and saw the defendant's vehicle cross the double yellow line dividing the northbound and southbound lanes and "partially veer[ ] into [Scalisi's] lane." Scalisi maneuvered his car into the other southbound lane. Thereafter, Scalisi saw something go over the top of the defendant's car, and he heard the sound of glass shattering and paper dragging. He did not hear the sound of a horn or brakes squealing. He saw the defendant's car move over to the other lane and slow down. At the time the defendant's car passed Scalisi's car, Scalisi estimated the speed of the defendant's car to be approximately forty miles an hour.

At approximately 8:15 P.M., as Ann and John Thomas were leaving a business establishment on Route 28, they heard a thud. Both looked toward Route 28 and saw a hat fly over the top of the defendant's car. They did not hear a horn sound or brakes squeal. John Thomas estimated the defendant's speed as between forty to forty-five miles an hour. Ann Thomas estimated the speed to be forty-five miles an hour. John Thomas saw the body of Serafina Mendes ⁴ and ran over to see if he could be of assistance. He noticed a man's shoe and looked northward. He saw a man's body (August Silvia) about fifty yards away from the Mendes body.

Another citizen, Edward Reynolds, traveling southbound, saw two bodies in the road, some distance apart from each other. He asked his wife, the driver, to pull over. He left his car to check Silvia's vital signs. At that time he observed the defendant's car. The windshield was shattered. The windshield had what appeared to be skin and blood stains on it. When Reynolds approached the defendant's car, he noticed that the defendant could not stand or walk without using his car for support. Reynolds said to the defendant, "You're drunk. You idiot." Reynolds told the defendant that he (the defendant) had hit two people while he was drunk. The defendant responded, "What's the big deal?" Reynolds then said, "One person is dead. The other person is really hurt and could die." Reynolds continued, "You're drunk. It's bad enough you get in an accident, period, natural things that happen, but you're drunk. There is no need for it." The defendant said, "So." Reynolds said that the defendant's eyes looked like the eyes of someone who was very drunk. Reynolds smelled hard liquor on the defendant's breath.

John Thomas heard Reynolds say to the defendant, "You're ... drunk." The defendant said he was not. He heard Reynolds again say, "You're drunk. You hit them." The defendant paused and said, "Yes, I am." The defendant paused again and then said, "I hit them."

The police arrived. One officer approached the defendant and read the Miranda warnings to him. The officer smelled alcohol on the defendant's breath and observed the defendant walk in an unsteady manner. The defendant's speech was slurred. The officer concluded that the defendant was under the influence of intoxicating liquor. A second officer asked the defendant to walk toward his (the defendant's) car. The defendant staggered as he walked. The officer smelled the odor of alcohol on the defendant's breath, saw that the defendant's eyes were bloodshot, and arrested the defendant.

The police officers took the defendant to the police station, where he was informed of the charges against him. All the officers observed indications that the defendant was under the influence of intoxicating liquor. One officer said that the defendant had difficulty negotiating the stairs in the station and following directions for the fingerprinting. That officer stated that, after he explained the fingerprinting process and asked for the defendant's right hand, the defendant gave him his left hand. The officer then physically took the defendant's right hand and printed the thumb. To further requests for specified fingers, the defendant either put out the wrong finger or did not respond at all.

The defense admitted that the road was clear and well-lit and that the defendant never saw the victim Mendes, who it was later learned was wearing white and light-colored clothing. The defendant claimed that his speed was between thirty and thirty-five miles an hour, that he did not cross the double yellow line separating the north and southbound lanes, and that he was not drunk or under the influence of intoxicating liquor. He said he was three to five feet from one of the two victims, later identified as Silvia, when he first saw him and therefore did not have time to sound the horn or apply the brakes of his automobile before impact. He said he did not hit the brakes immediately after the impact because he thought this would further injure the man on the car hood, and that he instead gradually slowed down and pulled the car over to the right side of the road. The defendant said that his irregular walking and his need for support was due to an operation four weeks earlier for boils on his buttocks. He asserted that, as he got out of his car, he hit the surgical wounds and was in "excruciating" pain. The defendant admitted to drinking a Manhattan at a Chinese restaurant while he waited for a take-out order. The defendant also asserted that an oncoming car had its high beam headlights on and that just before the accident he flicked his lights at the other car.

1. Sufficiency of the evidence. The defendant argues that the judge erred in denying his motion at the close of all evidence for a required finding of not guilty because the Commonwealth failed to present sufficient evidence to establish either the defendant's negligence or a causal relationship between the defendant's actions and the victims' deaths. Since the defendant challenges the sufficiency of the evidence supporting his conviction, we review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Reid, 384 Mass. 247, 257, 424 N.E.2d 495 (1981). There is no error. On appeal the defendant does not claim there was insufficient evidence of driving under the influence of intoxicating liquor. He limits his challenge to the claim that there is insufficient evidence of negligence apart from driving under the influence.

The Commonwealth presented ample evidence for the jury to conclude that, independent of driving under the influence of intoxicating liquor, the defendant negligently operated his motor vehicle. The jury could infer negligence from testimony that the defendant drove faster than the posted speed limit, ⁵ crossed the center line on Route 28 immediately before the accident, failed to slow down or stop immediately after the impact, and carried one of the victims on the hood of his car for approximately one hundred feet. See Commonwealth v. LaFrance, 361 Mass. 53, 56, 278 N.E.2d 394 (1972). The area was well-lit, the weather clear, and the traffic normal. The jury...