Com. v. Geisler

• Citation: 14 Mass.App.Ct. 268,438 N.E.2d 375
• Parties: COMMONWEALTH v. Donald F. GEISLER.
• Decision Date: 30 September 1982
• Court: Appeals Court of Massachusetts

Page 375

438 N.E.2d 375

14 Mass.App.Ct. 268

COMMONWEALTH v. Donald F. GEISLER.

Appeals Court of Massachusetts,

Berkshire.

Argued May 17, 1982.

Decided Aug. 2, 1982.

Further Appellate Review Denied

Sept. 30, 1982.

John D. Lanoue, Adams, for defendant.

Gregory E. Gallagher, Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, GREANEY and SMITH, JJ.

GREANEY, Justice.

After trial in a District Court, a six person jury found the defendant guilty of homicide by motor vehicle, G.L. c. 90, § 24G, and leaving the scene of an accident without making himself known, G.L. c. 90, § 24(2)(a). On appeal, he contends (1) that his motions for required findings of not guilty were improperly denied; (2) that various evidentiary errors were made; (3) that certain requests for jury instructions were improperly refused; and (4) that the prosecutor's final argument contained prejudicial remarks. We reject these contentions and affirm the convictions.

Since the defendant challenges the sufficiency of the evidence supporting his convictions, we review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Reid, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1803, 1813, 424 N.E.2d 495, and cases cited. One Samuel Miller testified that on September 29, 1979, about 2:30 A.M., he was driving north on Route 8 through the town of Cheshire toward the town of Adams. It was raining at the time. While still in Cheshire, Miller observed another car ahead of him, also traveling north, and saw the flashing lights of a parked police cruiser in the distance. Both cars thereafter crossed the town line into Adams and passed the cruiser.

As Miller approached the car ahead, he observed that it was "swerving" slowly "[f]rom the edge of the breakdown lane, back over the center line" of the road. He decided to pass the car but as he pulled closer, he noticed the "upper torso" of a human body "extending from the right [front] side of the car." The body was apparently impaled on the car in a position "with the ... right arm extended over the head." Miller remained behind the car briefly to be certain that this was, in fact, a body he was seeing. He then pulled over and stopped at the side of the road.

After about a minute, Miller resumed driving in an effort to catch up with the car carrying the body. In a few moments, he saw it ahead of another vehicle which had intervened, and observed that it was "still [traveling] with a bit of swerving." The intervening car continued north on Route 8, and the car carrying the body made a right turn onto Liberty Street in Adams. There, Miller saw the body fall off the car and onto the road. The car then ran over the body and drove away. ¹

Miller stopped his car and approached the body lying in the road. He noticed that "the body sort of moved, sort of made a wheezing sound." The victim died shortly thereafter. There was medical evidence that his death was caused by multiple traumatic injuries of the kind that would be sustained by someone who had been struck by a moving vehicle and dragged along for some distance.

An Adams police officer testified that about 3:10 A.M. that night he was assisting the operator of a disabled vehicle on Route 8 in Adams. He had parked his cruiser in the northbound lane, about two hundred feet north of the Cheshire town line, and had left its lights flashing. The officer saw a car pass the cruiser going north and noticed that the car "was dragging something," although he could not see what it was. About five minutes later, the officer was called to Liberty Street in Adams, where he observed the body of the victim. He then drove south on Route 8, looking for evidence connecting the victim's death with the car he had seen shortly before.

While still in Adams, about one mile from Liberty Street, the officer found a piece of red cloth which matched the shirt worn by the victim. In front of a bar in Cheshire, 4.8 miles from Liberty Street, the officer found pieces of plastic resembling broken parts of an automobile grille scattered in the northbound lane over an area of seventy-five to one hundred feet. ²

About 6:45 A.M. police officers cruising the streets of Adams observed a car which was missing a portion of its grille on the right side, and which also had a dent on the right front side of the hood. The car was parked on Cherry Street near the home of the defendant. It was a light green 1977 Plymouth Volare with a vinyl roof, and was registered to the defendant's wife. The car was subsequently identified by witnesses Miller and Angeli as the car which they had seen on the night of the incident. An expert witness was able to reconstruct 90 to 95% of the missing portion of this car's grille from the broken pieces of plastic found on Route 8 in Cheshire. In addition, analysis of fibers taken from the right front fender and tire of this car showed them to be consistent with fibers of the clothing worn by the victim. ³

About 7:00 A.M. that same morning, a State trooper interviewed the defendant at his home. After receiving Miranda warnings, the defendant gave the trooper the following account of his whereabouts on the previous night. The defendant said that he left home alone about 9:00 P.M.; that he drove his wife's car to a bar in Pittsfield, where he had one drink; that he left the bar about 10:15 P.M. and drove north on Route 8 through Adams ⁴ to North Adams; that he returned to Adams about 11:00 P.M. and parked the car on Cherry Street; that he then walked around town for several hours; and that he returned home about 2:00 A.M., and went to bed. The defendant also said that the car was not damaged when he parked it the night before, and that he had "no idea" how it had been damaged. The trooper testified that he recalled the defendant's saying further that the car was "right where he parked it" the night before, that "no one [else] drove the car" that night, and that "he was the only one that had keys" to the car. ⁵

1. The defendant argues first that the evidence was insufficient to warrant a finding that he was the person who operated the car, and, as a consequence, that the judge erred in denying his motions for required findings of not guilty. Mass.R.Crim.P. 25, 378 Mass. 896 (1979). Although there was ample evidence to warrant the conclusion that the damaged car found near the defendant's home was the car that struck the victim, there was no direct evidence that the defendant was the person driving the car. In several cases of this sort, circumstantial evidence has been held insufficient to permit a finding of guilt to a moral certainty, and to the exclusion of any other reasonable hypothesis. See Commonwealth v. Shea, 324 Mass. 710, 713-714, 88 N.E.2d 645 (1949); Commonwealth v. Mullen, 3 Mass.App. 25, 26-27, 322 N.E.2d 195 (1975). In a number of other cases, however, circumstantial evidence has been held sufficient to establish beyond a reasonable doubt that the defendant was the driver of the vehicle in question. See Commonwealth v. Henry, 338 Mass. 786, 153 N.E.2d 751 (1958); Commonwealth v. Swartz, 343 Mass. 709, 711-713, 180 N.E.2d 685 (1962); Commonwealth v. Rand, 363 Mass. 554, 561-562, 296 N.E.2d 200 (1973); Commonwealth v. Smith, 368 Mass. 126, 128-129, 330 N.E.2d 197 (1975); Commonwealth v. Doyle, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 2077, 2078-2080, 429 N.E.2d 346.

We believe that the evidence presented here was sufficient to permit a finding that the defendant was driving the car that struck the victim. The defendant's own statements to police show that after consuming some alcohol, the defendant drove the car on Route 8 through Cheshire and Adams; that the car was under his exclusive control until at least 11:00 P.M.; that as far as he knew, no one else had driven it that night, see Commonwealth v. Henry, supra; that he left the car locked when he parked it; and that he had the only keys to the car. ⁶ See Commonwealth v. Rand, supra 363 Mass. at 562, 296 N.E.2d 200. The car was found parked within a block of the defendant's home only a few hours after the accident, see Commonwealth v. Smith, supra 368 Mass. at 128-129, 330 N.E.2d 197, and there was no evidence that its doors or ignition had been tampered with. The jury could have disbelieved the defendant's statement that, at the time of the accident, he was either walking around Adams alone or at home. The jury could also have viewed as false his implicit claim that some unknown person had taken the car without authority, struck the victim, and returned it to precisely the same place where he had parked it earlier. Moreover, had the jury found, from all the evidence discussed above, that the defendant fabricated the statement regarding his whereabouts in order to mislead the police, they could have considered that statement as evidence manifesting consciousness of guilt. ⁷ See Commonwealth v. Swartz, supra 343 Mass. at 712-713, 180 N.E.2d 685; Commonwealth v. Smith, supra 368 Mass. at 129, 330 N.E.2d 197; Commonwealth v. Doyle, supra --- Mass.App. at ---, Mass.App.Ct. (1981) at 2080, 429 N.E.2d 346. "While proof of mere consciousness of guilt alone may be insufficient to convict of crime, see Commonwealth v. Montecalvo, [367 Mass. 46, 52, 323 N.E.2d 888 (1975)], evidence of such a state of mind when coupled with other probable inferences may be sufficient to amass the quantum of proof necessary to prove guilt. See Commonwealth v. Best, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 2039, 2049, 411 N.E.2d 442." Commonwealth v. Porter, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2275, 2281, 429 N.E.2d 14. See Commonwealth v. Booker, 386 Mass. 466, 469-470, 436 N.E.2d 160 (1982). Applying the relevant standards, see Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979), we conclude that the evidence was sufficient to permit a finding beyond a reasonable doubt that the defendant was the driver of the car that hit the victim. ⁸

2. The defendant...