Com. v. Smithson

• Decision Date: 16 December 1996
• Docket Number: No. 96-P-618,96-P-618
• Citation: 41 Mass.App.Ct. 545,672 N.E.2d 16
• Parties: COMMONWEALTH v. Dana SMITHSON.
• Court: Appeals Court of Massachusetts

Page 16

672 N.E.2d 16

41 Mass.App.Ct. 545

COMMONWEALTH v. Dana SMITHSON.

No. 96-P-618.

Appeals Court of Massachusetts Barnstable.

Argued Sept. 13, 1996.

Decided Oct. 31, 1996.

Further Appellate Review Denied

Dec. 16, 1996.

Steven S. DeYoung, Hyannis, for defendant.

Linda A. Wagner, Assistant District Attorney (Peter Lloyd, Assistant District Attorney, with her), for Commonwealth.

Before WARNER, C.J., and ARMSTRONG and PERRETTA, JJ.

WARNER, Chief Justice.

Following a bench trial in District Court, the defendant was convicted of motor vehicle homicide and operating a motor vehicle so as to endanger. G.L. c. 90, §§ 24, 24G. Both offenses are punishable as crimes only if they occur "upon any way or in any place to which members of the public have access as invitees or licensees." G.L. c. 90, § 24(2)(a ), as appearing in St.1974, c. 418; G.L. c. 90, § 24G(b ), as appearing in St.1982, c. 373, § 9. The defendant contends that the evidence was insufficient to establish, beyond a reasonable doubt, that the road upon which he was driving at the time of the accident was a way to which the public had access as invitees or licensees. He also argues that the judge's failure to rule on his motion for a required finding of not guilty at the close of the Commonwealth's evidence constitutes reversible error. We reverse.

The defendant was charged with motor vehicle homicide and operating to endanger after the automobile he was driving overturned, killing one of the passengers. The accident occurred on Memorial Day, May 29, 1995. During that weekend, a "pig roast" and party were held at Brewster Sand & Gravel, a privately owned sand and gravel pit-stump dump facility located in Brewster. Although the business was generally open to the public during the week, it was closed from noon on Saturday, May 27 through Monday, May 29, 1995, in observance of the Memorial Day holiday.

Brewster Sand & Gravel is located adjacent to Freeman's Way, a paved, public way in the town of Brewster. It consists of approximately sixty to seventy acres of land, and is in the business of selling sand and gravel and accepting certain types of brush and debris for dumping. There is a sand and gravel "haul road" leading from Freeman's Way to the main gate of Brewster Sand & Gravel, which is located approximately 100 feet from Freeman's Way. There is a sign posted on the fence connected to the gate which sets out the facility's business hours. There is also a utility pole with a halogen light affixed to the top.

Inside the gate, the road continues through the premises until it reaches a sand pit area, some 1,000 feet north of Freeman's Way. There are two fire hydrants along the road. A line of telephone poles runs parallel to it. Approximately 650 feet north of Freeman's Way, and directly beside the haul road, are a number of buildings grouped together, including a trailer which functions as the office for the facility, a storage garage, and a utility building. At the end of the road is the actual sand pit, or excavation area. It is on this haul road that the fatal accident occurred.

The Memorial Day "pig roast" was organized by an employee of Brewster Sand & Gravel, with the permission of the facility's owner. Over the course of the weekend, more than fifty guests attended the party; some actually camped out in the sand pit area at the rear of the property.

The organizers of the party had provided several "junk cars" for the purpose of "joyriding" on the grounds of the facility. These jalopies were delivered to Brewster Sand & Gravel on a ramp truck some time on Saturday, May 27. Over the course of the weekend, several of the party-goers drove them around the excavation area located at the rear of the property, and along the gravel haul road, doing "donuts" and "fishtailing" as they drove. One of the old cars was nicknamed the "Pit Taxi" and had that name written across its rear window. It did not have a windshield, hood, or seatbelts and had recently been damaged in a roll-over accident.

On Monday, May 29, the defendant was driving the "Pit Taxi." Three passengers, including the decedent, Brian Coulson, were in the car. The defendant was driving south on the gravel haul road, heading away from the sand pit area, when he lost control of the vehicle, spun 180 degrees, and flipped the car onto its right side. Brian Coulson was killed as a result of the accident. Although the record is somewhat imprecise as to the exact location of the vehicle when it overturned, it was clearly in the vicinity of the sand pit area, well beyond the main gate and past the trailer and utility buildings.

At trial, the Commonwealth presented several witnesses, including police Officers Gary Coffee and Richard Koch, William Grover, the owner of the facility, and Michael Escher and Don Viprino, both of whom had attended the pig roast. Numerous photographs of the scene were also introduced in evidence.

At the close of the Commonwealth's case, the defendant filed a motion for a required finding of not guilty pursuant to Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), on the grounds that the Commonwealth had failed to establish that the defendant was negligent, or that the road on which the defendant was driving on May 29, 1995, was a way "to which members of the public have access as invitees or licensees" within the meaning of the relevant statutes. See G.L. c. 90, §§ 24(2)(a ), 24G(b ). The trial judge denied the defendant's motion with respect to negligence, but reserved his ruling on the issue of public access. Defense counsel did not object, and subsequently presented his case. The defendant did not testify. At the close of the evidence, the judge denied the defendant's earlier motion and found him guilty on both charges.

The defendant argues on appeal that the judge's failure to rule on his motion for a required finding of not guilty at the close of the Commonwealth's case constitutes reversible error. The Commonwealth maintains that there was no error and that the defendant was not prejudiced in any event.

The language of rule 25(a) is unequivocal. It provides, in relevant part: "If a defendant's motion for a required finding of not guilty is made at the close of the Commonwealth's evidence, it shall be ruled upon at that time." In light of the explicit and mandatory language of the rule, the trial judge should have ruled on the motion at the time it was made. See Commonwealth v. Cote, 15 Mass.App.Ct. 229, 241, 444 N.E.2d 1282 (1983), and cases cited. This error, however, does not necessarily warrant reversal of the defendant's conviction. Id. at 239-242, 444 N.E.2d 282. See also Commonwealth v. Preston, 393 Mass. 318, 321 n. 2, 471 N.E.2d 340 (1984). If the evidence was sufficient to sustain the denial of the defendant's motion at the time the prosecution rested, any error in failing promptly to rule on the motion would be considered harmless. United States v. Conway, 632 F.2d 641, 643 (5th Cir.1980). See Commonwealth v. Preston, 393 Mass. at 321 n. 2, 471 N.E.2d 340; Commonwealth v. Cote, 15 Mass.App.Ct. at 241, 444 N.E.2d 1282. Because we conclude that the road on which the accident occurred was not a way "to which members of the public [had] access as invitees or licensees," we need not determine whether the judge's untimely ruling would otherwise have constituted reversible error.

The defendant's second argument concerns the sufficiency of the evidence supporting the trial judge's denial of his motion for a required finding of not guilty. He argues that, as a matter of law, there was insufficient evidence to establish that the road on which he was driving was a way to which members of the public had access as invitees or licensees. Accordingly, he maintains that it was error for the judge to deny his motion.

At the close of the evidence, the judge concluded that the main gate to Brewster Sand & Gravel was open on Memorial Day, 1995. He also found that the road on which the defendant was operating was a way to which the public had a right of access, either as invitees or licensees. No formal findings of fact were made. After reviewing the record, we conclude that the judge's subsidiary finding regarding the position of the gate was supported by the evidence. See Commonwealth v. Corriveau, 396 Mass. 319, 326, 486 N.E.2d 29 (1985) (absent clear error, trial judge's subsidiary findings are accepted by the reviewing court); Commonwealth v. Kitchings, 40 Mass.App.Ct. 591, 592, 666 N.E.2d 511 (1996). Next, we consider the judge's ultimate legal conclusions.

On the complete record before us, we are in as good a position as the judge to evaluate the strength of the defendant's claims with respect to the correct application of the law to the facts. See Director of the Div. of Employment Security v. Mattapoisett, 392 Mass. 858, 862 n. 5, 467 N.E.2d 1363 (1984). Thus, while we give substantial deference to the judge's ultimate findings, Commonwealth v. MacNeill, 399 Mass. 71, 76, 502 N.E.2d 938 (1987), his legal rulings and conclusions of law are subject to our independent review. Ibid. Commonwealth v. Eagles, 419 Mass. 825, 832 n. 9, 648 N.E.2d 410 (1995). Commonwealth v. Selby, 420 Mass. 656, 657, 651 N.E.2d 843 (1995). Commonwealth v. Chadwick, 40 Mass.App.Ct. 425, 427-428, 664 N.E.2d 874 (1996). Here, the judge's conclusion, that the way on which the defendant was operating was accessible to the public as invitees or licensees, constitutes a legal conclusion rather than a factual finding. Cf. Commonwealth v. Callahan, 405 Mass. 200, 201, 539 N.E.2d 533 (1989). We, therefore, reexamine it independently.

In reviewing the denial of the defendant's motion, we consider the evidence in the light most favorable to the Commonwealth, notwithstanding any contrary evidence presented by the defendant, and determine whether it was sufficient to permit a rational trier of fact to conclude, beyond a reasonable doubt, that the road upon which the defendant was...