Com. v. Williams

• Decision Date: 20 March 2009
• Docket Number: No. 08-P-228.,08-P-228.
• Citation: 903 N.E.2d 222,73 Mass. App. Ct. 833
• Parties: COMMONWEALTH v. Gerard P. WILLIAMS.
• Court: Appeals Court of Massachusetts

903 N.E.2d 222 73 Mass. App. Ct. 833 COMMONWEALTH
v.
Gerard P. WILLIAMS. No. 08-P-228. Appeals Court of Massachusetts, Barnstable. Argued November 10, 2008. Decided March 20, 2009.

[903 N.E.2d 224]

J. Thomas Kirkman, Assistant District Attorney, for the Commonwealth.

Russell J. Redgate for the defendant.

Present: LENK, MEADE, & FECTEAU, JJ.

FECTEAU, J.

73 Mass. App. Ct. 834

These are cross appeals following a trial without jury in the District Court on a three-count complaint charging the defendant with misdemeanor vehicular homicide by operation while under the influence of intoxicating liquor (OUI) (G.L. c. 90, § 24G[b]),¹ operating a motor vehicle so as to endanger (G.L. c. 90, § 24[2][a]), and a civil motor vehicle infraction for failure to yield at an intersection (G.L. c. 89, § 8). The parties' claims essentially question whether the trial judge could lawfully find the defendant guilty of misdemeanor motor vehicle homicide by negligent operation so as to endanger (also under G.L. c. 90, § 24G[b]) and later amend the complaint to reflect that finding. We find merit in the defendant's claim that the judge was without authority to amend the count of operating to endanger by adding the additional elements of the motor vehicle homicide statute. We reject the Commonwealth's separate claim that the judge erred when denying the Commonwealth's posttrial motion to amend the count charging motor vehicle homicide by OUI to allege vehicular homicide by negligent operation. Therefore, we reverse in part, affirm in part, and remand for resentencing.

Background. On November 15, 2006, at approximately 5:30 P.M., the defendant was involved in a fatal collision occurring on Route 28 in West Yarmouth at the intersection with Traders Lane, involving his automobile and a motorcycle being operated by one William Armstrong. When responding officers arrived, they observed the car stopped halfway across Route 28, and the motorcycle lying on Route 28 with its operator beneath the engine compartment of the car. Armstrong died minutes after the collision due to the injuries he suffered.

The defendant told police that he was coming from a golf course, intending to turn left from Traders Lane onto Route 28 and travel eastbound to visit a friend; he also said that he had not seen the motorcycle. He admitted that he had consumed two

73 Mass. App. Ct. 835

beers between 4:00 and 5:00 P.M. — but did not believe they affected his ability to drive — and that he had nothing to drink since the accident. Because the officer detected a moderate odor of alcohol on the defendant's breath and was not satisfied with the defendant's performance of field sobriety tests, he arrested the defendant and cited him for motor vehicle homicide by OUI, operating a motor vehicle so as to endanger, and a civil infraction for failure to yield at an intersection. A complaint was thereafter issued.

Further investigation revealed only some incomplete eyewitness observations

903 N.E.2d 225

of the vehicles prior to the critical moments before impact. The evidence appears undisputed that the defendant had pulled out onto Route 28 from his halted position on the intersecting way, and then stopped, blocking the westbound side of Route 28, apparently in order to await an opportunity to move into eastbound traffic.

Testimony from accident reconstruction experts for both parties seemed to disagree on two main issues: (1) at what distance the defendant would have been able to see the motorcycle's approach, 140 feet or 160 feet, and (2) the motorcycle's speed, calculated from skid marks on the road to be either 29 or 46 miles per hour. While suggesting that the defendant could have avoided the accident, the Commonwealth's expert conceded that there was sufficient time and distance for the deceased to have avoided the accident. The defendant also offered testimony that the decedent was under the influence of marijuana.

At the conclusion of the trial, the judge found two causes for the decedent's death: the decedent's own speed and the defendant's negligence in entering the "intersection when both lanes were not clear to do so" on a night with "rain, some fog, [and] limited visibility." He found the defendant not guilty of count 1, motor vehicle homicide by OUI; guilty of count 2, operating to endanger; and not responsible of count 3, failure to yield at an intersection. He also found "the defendant guilty of vehicular homicide by negligent operation."

The clerk, confronted with a three-count complaint not alleging this form of vehicular homicide, and apparently without direction from the judge, first simply announced the judge's findings without allocating them to particular counts. The judge

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sentenced the defendant to a one-year term in the house of correction, suspended for three years, during which he was placed on probation with certain conditions, as well as being ordered to pay a fine of $2,000 and a surfine.

Later, the clerk caused the docket to show a new count in this complaint (count 4) to reflect the judge's guilty finding of motor vehicle homicide by negligent operation. Following that action, the Commonwealth filed a motion to correct the docket, apparently recognizing a problem with the way the findings were recorded, and filed a motion for the judge to amend count 1 to better accommodate the charge on which he found the defendant guilty; a hearing on that combined motion was conducted one week later on December 19, 2007. While the judge appears to have recognized the impropriety of adding a count to the complaint after trial, he denied the Commonwealth's request, instead deciding to order an amendment to count 2, which alleged a violation of G.L. c. 90, § 24(2)(a), for operating to endanger, and of which the defendant had already been convicted, adding: "and by such operation did cause the death of another person (violation of [G.L. c.] 90, § 24G[b])." The judge also wrote on the complaint that the "amendment is deemed an amendment of form rather than substance because of the bill of particulars which notified the defendant he was being tried under both theories of motor vehicle homicide."

Discussion. 1. The defendant's appeal. The defendant argues prejudicial error by the amendment of count 2 of the complaint, which had alleged simple operation of a motor vehicle so as to endanger, under the provisions of G.L. c. 90, § 24(2)(a). See, e.g., Commonwealth v. Sitko, 372 Mass. 305, 307-308, 361 N.E.2d 1258 (1977). We conclude that the change was one of substance rather than form because (1) the newly included statute, G.L. c. 90, § 24G(b), has a maximum sentence more severe than under the original

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charge, and (2) the amendment added an element not required under the original charge, but essential to the amended charge of motor vehicle homicide by negligent operation so as to endanger: specifically, operation causing the death of another. Article 12 of the Massachusetts Declaration of Rights states that "no subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him."

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General Laws c. 263, § 4, as amended through St.2000, c. 159, § 292, states that "[n]o person shall be held to answer in any court for an alleged crime, except upon an indictment by a grand jury or upon a complaint...." Rule 4(a) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 849 (1979), requires that a complaint contain "a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof." A charge must appear with "sufficient clarity ... to enable the accused to know the nature and cause of the accusation against him, to prepare an adequate defense, and to plead an acquittal or conviction in bar of future prosecution for the same offense." Commonwealth v. Donoghue, 23 Mass.App.Ct. 103, 110, 499 N.E.2d 832 (1986), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 513 (1987).

"Indictments and complaints are subject to amendment as to form, if without prejudice to the defendant, but not as to substance. See Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979)." Commonwealth v. Bynoe, 49 Mass.App.Ct. 687, 691, 732 N.E.2d 340 (2000). Here, we first note that amending count 2 prejudiced the defendant by exposing him to an increased penalty from that of the originally charged offense of operating to endanger. The statutory maximum sentence allowable for operating to endanger is two years in the house of correction, while the maximum sentence for misdemeanor motor vehicle homicide is two and one-half years. See Commonwealth v. Miranda, 441 Mass. 783, 788, 809 N.E.2d 487 (2004) (amendment may not alter nature of charge or jeopardy faced). See also Commonwealth v. Souza, 42 Mass.App.Ct. 186, 192 n. 5, 675 N.E.2d 432 (1997) ("[p]rejudice ... could result if ... a greater penalty attached to the amended charge ...").

Second, the causation of death, while not an element required under the operating to endanger statute, is an essential and necessary element of vehicular homicide by negligent operation. See Commonwealth v. Diaz, 19 Mass.App.Ct. 29, 36-37, 471 N.E.2d 741 (1984). By adding an element to the crime charged, the amendment effected a change of substance, not form. See Commonwealth v. Ruidiaz, 65 Mass.App.Ct. 462, 463-464, 841 N.E.2d 720 (2006). See also Commonwealth v. Miranda, supra; Commonwealth v. Baker, 10 Mass.App.Ct. 852, 853, 407 N.E.2d 398 (1980) (amendment of form where it "neither added nor materially altered any element of the crime originally charged"). It is this aggravating factor, i.e., death resulting, that distinguishes

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the motor vehicle homicide from the offense of operating to endanger. Thus, operating to endanger is a lesser included offense of vehicular homicide by negligent operation. See Commonwealth v. Constantino, 443 Mass. 521, 526,...