Com. v. Drew

CourtAppeals Court of Massachusetts
Writing for the CourtPERRETTA
Citation11 Mass.App.Ct. 517,417 N.E.2d 53
Decision Date04 March 1981
PartiesCOMMONWEALTH v. Robert E. DREW, Jr.

Page 53

417 N.E.2d 53
11 Mass.App.Ct. 517
COMMONWEALTH

v.
Robert E. DREW, Jr.
Appeals Court of Massachusetts, Suffolk.
Argued Oct. 14, 1980.
Decided March 4, 1981.

Page 54

[11 Mass.App.Ct. 518] Richard C. Chambers, Everett, for defendant.

John Delano Boyle, Asst. Dist. Atty., for the Commonwealth.

Before [11 Mass.App.Ct. 517] BROWN, PERRETTA and KASS, JJ.

[11 Mass.App.Ct. 518] PERRETTA, Justice.

The defendant appeals from his convictions on complaints charging him with speeding, G.L. c. 90, § 17, as amended through St.1975, c. 494, § 7, and vehicular homicide, G.L. c. 90, § 24G, inserted by St.1976, c. 227. He raises two issues: (1) whether the complaints must be dismissed because of the alleged failure of the police to comply with the procedural requirements of G.L. c. 90C, § 2, and (2) whether the evidence was sufficient to prove that the victim died as a result of the injuries caused by the defendant. We affirm the judgments.

At about 9:30 P.M., on November 10, 1977, one Janice Goudey was driving her car around the Broadway rotary in Revere. The posted speed limit was twenty-five miles an hour. As she proceeded around the south side of the rotary, two cars sped into the traffic circle from a road on the north side of the rotary. These cars were travelling side by side at about sixty to seventy miles an hour, and neither driver attempted to maneuver the circle or to reduce his speed. Instead, both drove directly across the rotary surface. The defendant crashed into Goudey, and she was thrown from her vehicle. Both were taken to the hospital, and the defendant was released that night. Goudey died of a pulmonary embolism on November 24, 1977.

Revere Police Sergeant Edward Leach investigated the accident, and he issued a citation to the defendant on November 10, 1977. This citation indicated that a speeding complaint would be sought in the Chelsea District Court. When Leach was advised that Goudey had died, he did further investigatory work concerning the accident and on December 5, 1977, he issued another citation to the defendant. This citation indicated that a complaint for vehicular homicide would be sought in the Chelsea District Court.

The defendant requested hearings on the issuance of a complaint in each instance, and after several continuances [11 Mass.App.Ct. 519] of the various scheduled dates, one hearing was held on both requests, after which the complaints issued.

1. The motion to dismiss.

The defendant moved to dismiss the complaints, alleging that the vehicular homicide citation was not deposited in the Chelsea District Court within three days of the date on which it was written and that duly executed applications for complaints were not filed with the parts of the citations designated as requests for complaints, contrary to those provisions of G.L. c. 90C, § 2, as amended through St.1968, c. 725, § 3, which have been set out in full in the margin. 1 These procedures were "included in

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the statute to implement the 'no fix' purpose of the statute," and when they are not followed, the motor vehicle complaint must be dismissed. Commonwealth v. Clinton, 374 Mass. 719, 721, 374 N.E.2d 574 (1978). 2

The basis of the defendant's objection that the vehicular homicide citation was not timely filed in the Chelsea District Court was that it was not date stamped. The judge concluded that when the date of filing is not recorded by the District Court, it is impossible for a defendant to prove that a request for a complaint was untimely filed. He further concluded that a failure to record the date undermines the [11 Mass.App.Ct. 520] "no fix" purpose of § 2 just as seriously as an officer's failure to satisfy the time limit of the statute. He nonetheless refused to dismiss the complaint because he also concluded that vehicular homicide was not a motor vehicle offense within the meaning of G.L. c. 90C, § 1, 3 and, therefore, that § 2 was inapplicable to the complaint.

We conclude that the judge correctly denied the motion to dismiss but for reasons different from those advanced by the judge. We hold that vehicular homicide is a motor vehicle violation as defined by c. 90C, § 1. It is "an offense which both necessarily and exclusively encompasses the 'operation or control' of a motor vehicle," and it is an offense which is "aimed at regulating the manner in which automobiles are operated on a public way." Commonwealth v. Giannino, 371 Mass. 700, 702, 703, 358 N.E.2d 1008 (1977) (use of an automobile without authority, c. 90, § 24, held not to be an automobile law violation). See also Commonwealth v. Boos, 357 Mass. 68, 70, 256 N.E.2d 316 (1970) (larceny of a motor vehicle, c. 266, § 28, held not to be an automobile law violation). Compare Commonwealth v. Jones, --- Mass. ---, --- - --- a, 416 N.E.2d 502 (1981). (The court concluded that the Legislature had retained involuntary manslaughter, by reckless operation of a motor vehicle, as an offense distinct from vehicular homicide.) Because vehicular homicide is an automobile law violation within the meaning of c. 90C, § 1, the procedural requirements of § 2 are applicable to the complaint.

Nor do we think that it is implicit in § 2 that a District Court clerk must...

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6 practice notes
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 1984
    ...See, e.g., Commonwealth v. Glowski, 15 Mass.App. 912, 443 N.E.2d 900 (1982) ("negligently"); Commonwealth v. Drew, 11 Mass.App. 517, 523, 417 N.E.2d 53 (1981) ("cause"); Commonwealth v. Burke, 6 Mass.App. 697, 699-700, 383 N.E.2d 76 (1978) ("negligently"). See also Commonwealth v. Gordon, 1......
  • Com. v. Diaz
    • United States
    • Appeals Court of Massachusetts
    • January 30, 1985
    ...N.E.2d 76 (1978). Commonwealth v. Geisler, 14 Mass.App. 268, 276, 438 N.E.2d 375 (1982). Cf. Commonwealth v. Drew, 11 Mass.App. 517, 523, 417 N.E.2d 53 (1981). It would seem to follow that if the jury's task is to find ordinary negligence, then the appropriate principles of causation to app......
  • Com. v. Perry
    • United States
    • Appeals Court of Massachusetts
    • March 30, 1983
    ...382 Mass. 387, 416 N.E.2d 502 (1981) (additional citation for third death not required); Commonwealth v. Drew, 11 Mass.App. 517, ---, 417 N.E.2d 53 (1981). Mass.App.Ct.Adv.Sh. (1981) 527, 532 (citations designated as requests for complaints not filed with applications for complaints), or th......
  • Bishop v. Kelso, No. 89-8641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 15, 1990
    ...People v. Gittings, 136 Ill.App.3d 655, 91 Ill.Dec. 207, 483 N.E.2d 553, 559 (1st Dist.1985); Commonwealth v. Drew, 11 Mass.App. 517, 417 N.E.2d 53, 57 Page 1471 The harder question concerns actual cause--whether the evidence was sufficient to support a conclusion that, beyond a reasonable ......
  • Request a trial to view additional results
6 cases
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 1984
    ...See, e.g., Commonwealth v. Glowski, 15 Mass.App. 912, 443 N.E.2d 900 (1982) ("negligently"); Commonwealth v. Drew, 11 Mass.App. 517, 523, 417 N.E.2d 53 (1981) ("cause"); Commonwealth v. Burke, 6 Mass.App. 697, 699-700, 383 N.E.2d 76 (1978) ("negligently"). See also Commonwealth v. Gordon, 1......
  • Com. v. Diaz
    • United States
    • Appeals Court of Massachusetts
    • January 30, 1985
    ...N.E.2d 76 (1978). Commonwealth v. Geisler, 14 Mass.App. 268, 276, 438 N.E.2d 375 (1982). Cf. Commonwealth v. Drew, 11 Mass.App. 517, 523, 417 N.E.2d 53 (1981). It would seem to follow that if the jury's task is to find ordinary negligence, then the appropriate principles of causation to app......
  • Com. v. Perry
    • United States
    • Appeals Court of Massachusetts
    • March 30, 1983
    ...382 Mass. 387, 416 N.E.2d 502 (1981) (additional citation for third death not required); Commonwealth v. Drew, 11 Mass.App. 517, ---, 417 N.E.2d 53 (1981). Mass.App.Ct.Adv.Sh. (1981) 527, 532 (citations designated as requests for complaints not filed with applications for complaints), or th......
  • Bishop v. Kelso, No. 89-8641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 15, 1990
    ...People v. Gittings, 136 Ill.App.3d 655, 91 Ill.Dec. 207, 483 N.E.2d 553, 559 (1st Dist.1985); Commonwealth v. Drew, 11 Mass.App. 517, 417 N.E.2d 53, 57 Page 1471 The harder question concerns actual cause--whether the evidence was sufficient to support a conclusion that, beyond a reasonable ......
  • Request a trial to view additional results

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