Com. v. Porro

• Decision Date: 23 July 2009
• Docket Number: No. 08-P-199.,08-P-199.
• Citation: 909 N.E.2d 1184,74 Mass. App.Ct. 1125
• Parties: COMMONWEALTH v. Thomas PORRO.
• Court: Appeals Court of Massachusetts

909 N.E.2d 1184

74 Mass. App. Ct. 1125-1127

COMMONWEALTH v. Thomas PORRO.

No. 08-P-199.

Appeals Court of Massachusetts, Suffolk.

Argued February 12, 2009.

Decided July 23, 2009.

Charles W. Rankin, Boston (Jonathan P. Harwell with him) for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, DREBEN, & WOLOHOJIAN, JJ.

KAFKER, J.

[454 Mass. 677]

Fueled by road rage, the defendant, Thomas Porro, and the victim, Frank Merlonghi, chased each other through the streets of Boston. The chase ended when the defendant's car and Merlonghi's motorcycle collided and the defendant sped away. The defendant was charged by a grand jury with aggravated assault and battery by means of a dangerous weapon (an automobile) in violation of G.L. c. 265, § 15A (count one); assault by means of a dangerous weapon (a handgun) in violation of G.L. c. 265, § 15B(b) (count two); and leaving the scene of an accident causing personal injury in violation of G.L. c. 90, § 24(2)(a 1/2)(1) (count three). A jury found him guilty of count one for the lesser included offense of assault by means of a dangerous weapon and count three, leaving the scene of the accident causing personal injury, and acquitted him of count two. The defendant appeals, claiming instructional errors and challenging the exclusion of certain statements. On count three, leaving the scene of an accident, we affirm the judgment. On count one, assault by means of a dangerous weapon, we reverse the judgment and set aside the verdict. The Commonwealth may, however, retry him on this count under the attempted battery theory of assault with a dangerous weapon.

Background. The jury could have found the following facts: On March 29, 2006, the defendant, a special agent with the United States Department of Commerce, Office of Export Enforcement, was driving his government-issued car toward South Boston. As he turned onto Dorchester Avenue, he almost collided with a motorcycle driven by Merlonghi's friend, Bartley Loftus. Merlonghi drove his motorcycle alongside the defendant's car and engaged him in a loud shouting match. The two men continued the argument as they turned left on Summer Street. After that turn, the defendant began swerving his car toward Merlonghi. At some point, the defendant took out a gun. The defendant sped ahead and again almost hit Loftus. Merlonghi chased after the defendant and pulled up to the left side of his car. The defendant then pulled the steering wheel sharply to the left and the two vehicles collided. As a result of the collision, Merlonghi suffered serious bodily injury.

After colliding with Merlonghi, the defendant sped away. Although he had a cellular telephone and a radio in his car, he

[454 Mass. 678]

did not call the police. He drove less than a mile, possibly even less than one-half mile, and then stopped to inspect his car. From there, he drove directly home. Although he knew that he was required to report any accident involving his government-issued vehicle to his supervisor by the next business day, the defendant did not do so. The defendant knew the department was responsible for repairing his vehicle, but he brought the car to a repair shop in New Hampshire for his brother-in-law to fix at the defendant's expense. He told his brother-in-law that he had hit a curb. It was estimated that the cost to the defendant to repair the car, for parts alone, would have been at least $2,000 to $3,000.

Immediately following the collision, Loftus called the police and reported the defendant's license plate number. The police discovered that the license plate was registered to the defendant but under the control of his government employer. Six days after the accident, the police visited the defendant's supervisors and told them about the incident. This was the first they had heard of it. One of the supervisors informed the defendant that the police were claiming he was involved in a hit-and-run accident. Later that day, the defendant turned himself in to the police and was arrested.

Discussion. 1. Leaving the scene of an accident after causing personal injury conviction. The defendant testified at trial that at the time of the collision, he did not realize that he had hit Merlonghi. According to the defendant, he drove away because he had heard an "incredibly loud, short crack" and believed he had been shot at. He stopped less than a mile away, possibly even less than one-half mile away, when he was sure no one was following him. At this point, he inspected his car and discovered a hole in the left rear window. From his training and experience, he knew that the hole was inconsistent with a gunshot. He knew he was required to report all accidents involving his government-issued vehicle to his supervisors and the local authorities, but did not do so. He also knew that he was required to stop at the scene of any accident involving his government-issued vehicle and take certain actions such as helping any victims. The defendant, however, did not stop at the scene of the accident. Instead, he drove the car home.

[454 Mass. 679]

At the close of trial, the judge instructed the jury as follows: For count three, leaving the scene of an accident, the fourth and fifth elements of the offense were that "the defendant knew he had collided with, or caused injury in some other way, to another person" and that "after such collision or injury, [he] did not stop and make known his name, home address, and [vehicle] registration number." On the first full day of deliberations, the jury asked the judge the following question:

"With respect to the fourth element in Count 3, does knowledge of colliding with a person mean to be contemporaneous with the incident for `knowing' that a collision occurred? In other words, if the defendant realized he caused a collision with a person a short time after leaving the scene, is he required to return to the scene so as not to be in violation of Section 24(2)(a 1/2)(1) of Chapter 90?"

The next day, over defense counsel's objection, the judge instructed the jury as follows:

"If you determine that the Commonwealth has proved beyond a reasonable doubt that the defendant knew he had collided with or otherwise caused injury to the alleged victim, then, as soon as he knew he had collided with or otherwise caused injury to the alleged victim, he was obligated to stop and provide the necessary information ... to the alleged victim, if reasonably possible, or, if not, to someone in the alleged victim's interest or to some public officer or other person at or near the place and time of the injury."

Later that day, the jury returned a partial verdict convicting the defendant of count three and acquitting him of count two.

The defendant claims that the judge's instructions regarding G.L. c. 90, § 24(2)(a 1/2)(1), misstated the law and violated the rule of lenity, due process requirements of fair notice, and Mass.R.Crim.P. 24, 378 Mass. 895 (1979). We disagree.

General Laws c. 90, § 24(2)(a 1/2)(1), as amended by St.1991, c. 460, provides: "Whoever operates a motor vehicle upon any way ... and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury

[454 Mass. 680]

to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars." The information must be provided to the victim, someone acting on the victim's behalf, a public officer, or another appropriate person "at or near the place and time of injury." Commonwealth v. Horsfall, 213 Mass. 232, 236, 100 N.E. 362 (1913). Commonwealth v. Donohue, 41 Mass.App.Ct. 91, 94, 668 N.E.2d 858 (1996).

The judge's instruction was a proper statement of the law. It did not expand the type of conduct made punishable by the statute. She merely instructed the jury that, if they found the defendant knew that he had collided with or otherwise caused injury to another person, then he was required to "stop" and provide the required information at or near the place and time of the collision. The judge's instruction neatly combined the statutory language with guidance from the case law. The instruction appropriately left it to the jury to decide whether the defendant had violated the statute when he did not stop and report the accident at or near the place and time of the collision after he heard an "incredibly loud, short crack" and then drove less than a mile away from the point of impact and discovered a hole in his rear window that he knew to be inconsistent with a gunshot.

We see no ambiguity in the law that required application of the rule of lenity. See Commonwealth v. Carrion, 431 Mass. 44, 46, 725 N.E.2d 196 (2000) ("The rule of lenity does not require, however, that absent an ambiguity we construe a penal statute most favorably to a defendant"). Nor do we accept the defendant's due process argument that it was unforeseeable that the statute would be interpreted to prohibit his conduct. Compare Commonwealth v. Kwiatkowski, 418 Mass. 543, 547, 637 N.E.2d 854 (1994), quoting from Opinion of the Justices, 378 Mass. 822, 826, 393 N.E.2d 313 (1979) ("It is a central tenet of our constitutional law that, as a matter of due process, a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden should be deemed void for vagueness").

We also find no merit to the defendant's contention that this instruction violated Mass.R.Crim.P. 24. Rule 24(b) provides that the judge shall inform the parties, upon request, of her proposed

[454 Mass. 681]

instructions prior to closing arguments. "The purpose of [this] rule is to enable counsel to argue intelligently to the jury." Commonwealth v. Thomas, 21 Mass.App. Ct. 183, 186-187, 486...