Com. v. Gordon

Decision Date04 February 1983
Citation443 N.E.2d 119,15 Mass.App.Ct. 901
PartiesCOMMONWEALTH v. Geoffrey D. GORDON.
CourtAppeals Court of Massachusetts

Evan T. Lawson, Boston (Paul M. Osborne, Boston, with him), for defendant.

Susan C. Mormino, Asst. Dist. Atty., for Commonwealth.

Before ARMSTRONG, CUTTER and SMITH, JJ.

RESCRIPT.

Gordon was convicted before a jury of six persons in a District Court after an earlier bench trial by a District Court judge. He was charged on separate complaints with (a) operating a motor vehicle negligently so as to endanger the lives and safety of the public, and (b) intentional possession of a class B controlled substance, cocaine. Both complaints arose in the following circumstances, which the jury could have found on the evidence.

On December 2, 1980, two Watertown police officers arrived at the scene of a three-vehicle accident. "The physical evidence indicated that ... [Gordon's] automobile had left the roadway, crossed the curb onto the shoulder of the road, grazed a small building, and entered a parking lot striking a parked automobile pushing it into another parked automobile." The front of Gordon's "automobile was smashed and the windshield was shattered." There was testimony from an officer that Gordon "told him all he could remember about the accident was he reached over to get his briefcase and the next thing he knew the accident happened."

Gordon, "unsteady on his feet" had been injured. His "eyes were unblinking and glassy," his "speech was slurred," and, in one officer's opinion, Gordon "was operating under the influence of 'something.' " He was placed under arrest and taken to the police station, seated alone in the back seat but handcuffed behind his back, with his brief cases beside him. During the ride one officer observed Gordon "turn and reach into one of the briefcases" and "saw a 'dark object' in ... [Gordon's] hand." The officer told him to "keep out of his case and that he could get what he needed at the [police] station." At the police station, the officer "found a vial on the seat behind where ... [Gordon] was sitting." The vial's contents were analyzed and found to contain cocaine.

1. The trial judge, in the circumstances, acted within his discretion in denying severance of the two charges which grew out of one transaction and would be proved by substantially the same evidence. Commonwealth v. Hoppin, 387 Mass. 25, 32-33, 438 N.E.2d 820 (1982). Certainly there was no "clear abuse of discretion." Commonwealth v. Borans, 379 Mass. 117, 149, 393 N.E.2d 911 (1979). See Mass.R.Crim.P. 9(a)(1), (3), and (d), 378 Mass. 859-860 (1979).

2. From the physical evidence, from Gordon's admission to the officer about reaching over to get his briefcase, and from his confused conduct immediately after the accident, the jury reasonably could infer that Gordon at least had been negligently inattentive and possibly had been driving under the influence of a drug. See Lonergan v. American Ry. Express Co., 250 Mass. 30, 36, 144 N.E. 756 (1924); Bryne v. Great Atl. & Pac. Tea Co., 269 Mass. 130, 131, 168 N.E. 540 (1929); Dinardi v. Herook 328 Mass. 572, 574-575, 105 N.E.2d 197 (1952); O'Rourke v. MacAllister, 350 Mass. 777, 778, 215 N.E.2d 794 (1966); Commonwealth v. Burke, 6 Mass.App. 697, 701, 383 N.E.2d 76 (1978). See also Noon v. Beford, 349 Mass. 537, 543, 209 N.E.2d 292 (1965). The evidence, without resort to conjecture or surmise, was sufficient to support a jury finding of negligent operation so as to endanger the public. See cases collected in Nolan, Criminal Law, § 574 (1976 & Supp.1982). Compare Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965). The judge did not err in refusing to direct verdicts for Gordon.

3. The vial, which was found to contain cocaine, was introduced without objection on the testimony of the officer who had attached a tag to it when he took possession of it and he identified it at trial. See Commonwealth v. Hogg, 365 Mass. 290, 294, 311 N.E.2d 63 (1974). See also Commonwealth v....

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8 cases
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 16, 1984
    ...("cause"); Commonwealth v. Burke, 6 Mass.App. 697, 699-700, 383 N.E.2d 76 (1978) ("negligently"). See also Commonwealth v. Gordon, 15 Mass.App. 901, 901-902, 443 N.E.2d 119 (1982) (finding evidence sufficient to warrant a verdict of negligent operation so as to endanger the public), aff'd, ......
  • Com. v. Diaz
    • United States
    • Appeals Court of Massachusetts
    • March 16, 1983
    ...S.Ct. 2039, 20 L.Ed.2d 881 (1967). Commonwealth v. Hogg, 4 Mass.App.Ct. 225, 230, 344 N.E.2d 924 (1976). See Commonwealth v. Gordon, 15 Mass.App.Ct. 901, 902, 443 N.E.2d 119 (1982). It is well settled that weaknesses in a chain of custody affect the weight of the evidence rather than its ad......
  • Com. v. Gordon
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 7, 1983
    ...and of operating a motor vehicle negligently so that the lives and safety of the public might be endangered, Commonwealth v. Gordon, 15 Mass.App. 901, 443 N.E.2d 119 (1982), we allowed his application for further appellate review. The defendant filed a statement of the evidence with the tri......
  • Commonwealth v. Shepherd
    • United States
    • Appeals Court of Massachusetts
    • May 10, 2022
    ... ... vehicle negligently so as to endanger the public. See ... Commonwealth v. Gordon, 15 ... Mass.App.Ct. 901, 901 (1982) ... Contrast Commonwealth ... v. Zagwyn, 482 Mass. 1020, 1022 (2019) ... ("evidence of a broken ... ...
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