Com. v. Provost
| Decision Date | 05 October 1981 |
| Citation | 12 Mass.App.Ct. 479,426 N.E.2d 453 |
| Parties | COMMONWEALTH v. Donald J. PROVOST. |
| Court | Appeals Court of Massachusetts |
Richard J. Pentland, Worcester, for defendant.
Beth H. Saltzman, Asst. Dist. Atty., for the Commonwealth.
Before HALE, C. J., and BROWN and GREANEY, JJ.
After trial before a jury of six in a District Court, the defendant was convicted of three counts of vehicular homicide, G.L. c. 90, § 24G, and one count each of driving under the influence of intoxicating liquor, G.L. c. 90, § 24(1)(a), driving to endanger, G.L. c. 90, § 24(2)(a), and failing to stay to the right of the road, G.L. c. 89, § 1. Prior to trial, the defendant moved to dismiss all six complaints on the ground that the State police officer who investigated the accident had failed to issue citations under G.L. c. 90C, § 2, until twenty-seven days after the violations occurred. A judge denied that motion, and the propriety of that ruling is the sole question presented by this appeal.
General Laws c. 90C, § 2, St.1968, c. 725, § 2, requires an officer assigned to traffic duty to record motor vehicle violations "upon a citation ... as soon as possible and as completely as possible ..." thereafter. It further provides that a "failure to give the original of the citation to the offender at the time and place of the violation shall constitute a defense in any trial for such offense, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the offender or where the court finds that some circumstance, not inconsistent with the purpose of this section, namely, to cause violators of automobile law to be brought uniformly to justice, justifies the failure." Since the citations here were not issued at the time of the violations, we examine the circumstances to determine whether the twenty-seven day delay was justified under any of the statutory exceptions.
The evidence presented to the judge tended to establish the following facts. On December 8, 1979, at approximately 11:00 P.M., two vehicles were involved in a collision on Route 122 in Rutland. Upon arriving at the scene, the officer learned that the sole occupant of one vehicle, a Ford van, had been killed. He also determined that the defendant was the driver of the other vehicle, a Chevrolet sedan, and that the defendant had a "strong odor of alcohol on his breath."
While at the scene, the officer commenced his investigation of the collision. This included the measurement of skid marks, which were found on the "wrong side of the road," and several gouges which appeared in the surface of the southbound lane. The officer also noted the positions in which the two vehicles had come to rest after the collision. Other than the occupants of the vehicles, there were no witnesses to the accident.
Later that evening, the officer determined the defendant's identity and learned that two of the three passengers in the defendant's car had also died. The officer sought to speak with the defendant at the hospital but was advised that he was in critical condition and that it would be several days before any interview would be possible. On December 12, 1979, the officer again sought to speak with the defendant, and with the surviving passenger of the defendant's car, but was informed that both were still under intensive care and would be unable to make any statement for several weeks.
On December 21, 1979, the officer called the hospital and received permission to talk to both men. The officer then attempted to interview the defendant and the passenger, but neither had any recollection of the accident or the events which preceded it. On December 26, 1979, the officer spoke with the defendant's doctor but was advised that his condition was unchanged from the time of the previous interviews and that he still suffered total amnesia concerning the accident.
On December 28, 1979, the twentieth day after the accident, the officer spoke with one Debra Lamb, the sister of the person who had been driving the other vehicle in the accident. She told him that her brother had driven her to Warwick between 9:30 and 10:30 P.M. that evening. The officer testified that since Warwick is north of Rutland, the scene of the accident, this information "confirmed" that the van had been traveling south on Route 122, although he had "suspected" as much, and was not "surprised" by this information.
Following the interview with Lamb, the officer was off-duty for a week. During that time, however, he "put the whole investigation together," compiling all the information he had gathered, and making diagrams of the collision as he had reconstructed it. The officer concluded that the defendant had been traveling in a northerly direction, that his car had crossed the dividing line and struck the van in the southbound lane, and that the defendant was therefore at fault in the accident. Based on this conclusion, the officer issued citations for the violations involved here on January 4, 1980, the twenty-seventh day after the accident.
The defendant correctly points out that since he was never placed under arrest, G.L. c. 90C, § 2, required the issuance of citations, Commonwealth v. Gorman, 356 Mass. 355, 357-358, 251 N.E.2d 892 (1969), and that since such citations were not issued at the time of the violations, it was the Commonwealth's burden on the motion to dismiss "to establish that one of the exceptions in § 2 justified the prosecution(s) ...." Commonwealth v. Mullins, 367 Mass. 733, 734-735, 328 N.E.2d 503 (1975). In this context, we first consider whether "additional time was reasonably necessary" for the proper investigation of the accident.
The defendant views the quoted exception as inapplicable here, arguing that the officer had sufficient information to issue citations by the end of the night of the accident and that his subsequent investigation, including the interview with Lamb, was unnecessary. We disagree. Based on the facts and testimony summarized above, we do not think that the officer's measurements and observations at the scene permitted a proper reconstruction of the accident. From that evidence, the officer could not even ascertain with certainty which vehicle had been traveling in which lane, much less how the accident actually occurred, or who, if anyone, was at fault.
Thus, although the officer apparently formed a tentative theory regarding these questions, and also learned the identity of the defendant, the information initially available left legitimate doubt as to the "identity of the offender" (emphasis supplied), as well as the "nature of the violation(s)" which any such offender had committed. In these circumstances, and in view of the seriousness of the possible charges involved, we think that a prudent investigating officer could reasonably have deferred any final conclusion regarding the cause of the collision pending more definite information of the sort which was, in fact, later received from Lamb. 1 Therefore, at least as to the twenty-day period preceding the officer's interview with Lamb, we conclude that the delay in issuing the citations was "reasonably necessary" for the proper investigation of the accident.
The defendant argues, however, that no adequate justification was shown for the additional...
To continue reading
Request your trial
-
Commonwealth v. O'Leary
...mind the principle that, under the no-fix statute, "[e]ach case must be decided on its own peculiar facts." Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484, 426 N.E.2d 453 (1981).In the trial court and before us, the Commonwealth's arguments have focused primarily on whether the defenda......
-
Com. v. Perry
...the fact of the death, permitted. Commonwealth v. Pizzano, 357 Mass. 636, 638, 260 N.E.2d 643 (1970). Commonwealth v. Provost, 12 Mass.App. 479, --- - ---, 426 N.E.2d 453 (1981). Mass.App.Ct.Adv.Sh. (1981) 1686, 1689-1692. The only criticism that can be made relates to the method of deliver......
-
Commonwealth v. Ray
...‘[e]ach case much be decided on its own peculiar facts.’ " Burnham, supra at 485, 60 N.E.3d 396, quoting Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484, 426 N.E.2d 453 (1981).Under the circumstances of this case, the defendant had neither explicit nor implicit notice of the violation a......
-
Commonwealth v. Burnham
...delay in issuing a citation is justified. Rather, “[e]ach case must be decided on its own peculiar facts.” Commonwealth v. Provost, 12 Mass.App.Ct. 479, 484, 426 N.E.2d 453 (1981).2. The second exception. The second exception to the requirements of G.L. c. 90C, § 2, excuses delayed delivery......