Com. v. Diaz

• Decision Date: 30 January 1985
• Citation: 19 Mass.App.Ct. 29,471 N.E.2d 741
• Parties: COMMONWEALTH v. Kevin V. DIAZ.
• Court: Appeals Court of Massachusetts

Page 741

471 N.E.2d 741

19 Mass.App.Ct. 29

COMMONWEALTH v. Kevin V. DIAZ.

Appeals Court of Massachusetts Middlesex.

Argued Sept. 12, 1984.

Decided Nov. 29, 1984.

Further Appellate Review Denied Jan. 30, 1985.

Nona E. Walker, Boston, for defendant.

Karen J. Kepler, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, KASS and SMITH, JJ.

KASS, Justice.

As might be expected on a holiday weekend, traffic on July 5, 1982, was moderate to heavy on Route 128 as it coursed through Lexington. Several witnesses, the jury could have believed, saw the defendant's car travelling much faster than the fifty-five miles per hour at which traffic was moving (a State trooper put the defendant's speed at ninety miles per hour) and noticed that car veering from lane to lane. In the course of his high speed lane switching, Diaz--there is no dispute that he was the driver--was seen to be fishtailing and at the edge of control, if not beyond it. Diaz overtook on its left a vehicle in the third lane operated by a man named Greuter and spun or skidded in front of it. Greuter tried to steer around the Diaz car and, in the process, lurched across the median strip, over the guard rail, and into an oncoming (northbound) lane of traffic. A collision ensued between the Greuter car and a car whose driver had the misfortune to be travelling in the northbound lane. That driver was killed in the accident. The defendant's car was not itself involved in any collision. Diaz stopped and approached the accident scene, apologized to Mrs. Grueter, went back to his car and, without further ado, drove off. His car and license plate number, had, however, been noticed.

Diaz was charged with homicide by motor vehicle (G.L. c. 90, § 24G), driving to endanger (G.L. c. 90, § 24), and operating a motor vehicle after knowingly causing injury without making known his name, residence, and the registration number of his automobile (G.L. c. 90, § 24). He was found guilty on all counts in a bench trial in the District Court and appealed to a jury-of-six session in which he was again convicted on all three complaints. The conviction of driving to endanger was placed on file. Diaz appeals on the grounds that the trial judge: (1) in the course of a supplementary instruction to the jury in effect directed a finding of guilty of vehicular homicide; (2) instructed the jury in a manner which allowed the jury to apply a civil law standard of proximate cause; and (3) instructed the jury in a manner which unconstitutionally shifted the burden of proof on one element of two of the crimes charged. We affirm.

1. Effect of the supplementary charge. After a period of deliberation, the jury sent word to the judge that they could not reach a unanimous verdict on one of the three complaints with which Diaz stood charged. The judge instructed the jury along the lines recommended in Commonwealth v. Rodriquez, 364 Mass. 87, 97-102, 300 N.E.2d 192 (1973), but after some further period (the transcript does not contain precise times) the jurors pronounced themselves still deadlocked on one count. Counsel for the parties recommended to the judge that he receive the verdicts arrived at. If the jury were hung on operating to endanger, as counsel and the judge suspected, then declaration of a mistrial on that complaint seemed acceptable and the Commonwealth indicated that a new trial was unlikely.

As matters transpired, the jury had arrived at verdicts of guilty of operating to endanger and leaving the scene of an accident, but could not agree on vehicular homicide. There was an element of illogic to that. Vehicular homicide, as defined in G.L. c. 90, § 24G, inserted by St.1976, c. 227, presupposed operation of a "motor vehicle recklessly or negligently so that ... lives or safety ... might be endangered." Leaving the scene of an accident presupposed causing injury to a person, G.L. c. 90, § 24. ¹ Therefore, if the jury had found Diaz guilty of driving to endanger and causing injury, including Cerrone's death, they had also found the elements of vehicular homicide. The judge decided not to accept the partial verdict and to reinstruct the jury on the common element of causation in two of the complaints, a course of action he announced to counsel at a side bar conference and to which neither party objected. See and compare Commonwealth v. Liakos, 12 Mass.App. 57, 63, 421 N.E.2d 486 (1981). ²

In his clarifying instruction, the judge asked the jurors to deliberate again on the two counts as to which they had agreed on a verdict. He called to their attention that if they were to find Diaz not guilty of vehicular homicide, they must also find him not guilty of leaving the scene of an accident after causing injury to a person. The judge went on to define once again the components of the crime of leaving the scene of an accident, emphasizing the causation and knowledge elements, i.e., that the jury must, to convict, find that Diaz knew that he had caused injury to Mr. Cerrone. The judge then spoke as follows:

"And with regard to the offense for which you have been unable to reach a verdict, obviously that is the offense charging him with negligently operating his motor vehicle and causing the death of Mr. Cerrone. That particular offense is a combination of operating a motor vehicle negligently, upon which you have returned a verdict, and the causation issue, upon which you have returned a verdict with regard to the leaving the scene.

"So that you have got to be able to piece together the facts as you find them to be to have a consistent verdict. These verdicts, as you presently have presented them to court, are inconsistent as a matter of law, so I'm going to ask you to return to your deliberations and again go over the facts of the situation as I have instructed you, and try to reach a verdict that would be consistent with the law as I have instructed you on it and with the facts obviously as you find them to be."

Defense counsel did not expressly object to the supplementary charge but did ask the judge also to instruct the jury again on causation. Counsel expressed her concern that, left as it was, the charge "sounds to me like directing a verdict of guilty on the vehicular homicide." This forms the basis for the first argument which Diaz presses on appeal: that the trial judge's instructions had the effect of directing the jury to return a guilty verdict on the charge of vehicular homicide.

It is well understood that jury verdicts will not be disturbed because they are factually inconsistent. ³ Dunn v. United States, 284 U.S. 390, 393-394, 52 S.Ct. 189, 190-191, 76 L.Ed. 356 (1932). Commonwealth v. White, 363 Mass. 682, 684-685, 296 N.E.2d 822 (1973). The rule recognizes the power, possibly salutary, of juries to compromise and to act out of leniency. See United States v. Martorano, 557 F.2d 1, 9 (1st Cir.1977), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978). See also the concurring opinion of Quirico, J., in Commonwealth v. Dickerson, 372 Mass. 783, 811-812, 364 N.E.2d 1052 (1977). That principle does not, however, deter a trial judge from instructing a jury, before a verdict is recorded, about the elements common or uncommon to the crimes charged and to call attention to the jurors' misunderstanding of previous instructions. Commonwealth v. Haskins, 128 Mass. 60, 61-62 (1880). "[J]urors may have the power to ignore the law, but their duty is to apply the law as interpreted by the court, and they should be so instructed." United States v. Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied sub nom. Boardman v. United States, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970). ⁴ Compare Commonwealth v. Dickerson, 372 Mass. [19 Mass.App.Ct. 34] at 797, 364 N.E.2d 1052 (Hennessey, C.J., for the court) and 800 (Quirico, J., concurring). From the vantage of a defendant, an instruction concerning the common elements of separate charges may be discomfiting, but a court is not bound to "forbear stating what the law is upon a given state of facts." Sparf & Hansen v. United States, 156 U.S. 51, 101, 15 S.Ct. 273, 293, 39 L.Ed. 343 (1895). It is appropriate for the judge to tell a jury what verdict to bring in if the jurors find certain facts. Commonwealth v. Boyd, 367 Mass. 169, 186, 326 N.E.2d 320 (1975). If, as the court observed in Commonwealth v. Dickerson, 372 Mass. at 797, 364 N.E.2d 1052, a charge should include an instruction that the jury "have a duty, if they conclude that the defendant is guilty, to return a verdict of guilty of the highest crime which has been proved beyond a reasonable doubt against the defendant," even though the jury has the power ⁵ to do otherwise, then, by extension of that principle, a judge may properly instruct a jury to return consistent verdicts, even though the jurors have the power to do otherwise.

That instruction must stop short of coercing a verdict of guilty. A judge crosses the line between enlightening the jurors' understanding and coercing them when "he overcomes the will by the weight of his authority." Horning v. District of Columbia, 254 U.S. 135, 139, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920) (Brandeis, J., dissenting). See also Commonwealth v. Hebert, 379 Mass. 752, 755, 400 N.E.2d 851 (1980). Our cases are not without example: Commonwealth v. Sneed, 376 Mass. 867, 872-873, 383 N.E.2d 843 (1978) (judge adopted advocacy role in instructing jury); Commonwealth v. Hebert, supra, 379 Mass. at 754-755, 400 N.E.2d 851 (disregarding a juror's reservations when polling a jury and explaining to that juror that the evidence for conviction was clear); Commonwealth v. Webster, 391 Mass. 271, 272-277, 461 N.E.2d 1175 (1984) (judge interrogated a single juror who held a minority position--for acquittal--in a manner likely to be a signal to the other jurors that the judge disagreed with the single juror's view of the evidence); Commonwealth v. Borges, 2 Mass.App. 869, 870, 316 N.E.2d 627 (1974) (judge's comment on the...