Commonwealth v. Addy

• Decision Date: 26 July 2011
• Docket Number: No. 09–P–1067.,09–P–1067.
• Citation: 950 N.E.2d 883,79 Mass.App.Ct. 835
• Parties: COMMONWEALTHv.Matthew C. ADDY.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 835

950 N.E.2d 883

COMMONWEALTH

v.Matthew C. ADDY.

No. 09–P–1067.

Appeals Court of Massachusetts, Berkshire.

Argued Dec. 13, 2010.Decided July 26, 2011.

Patricia Quintilian for the defendant.Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.Present: KAFKER, SMITH, & HANLON, JJ.SMITH, J.

On September 1, 2006, the defendant, Matthew Addy, was the subject of two indictments charging him with (1) operating a motor vehicle while under the influence of intoxicating liquor, negligently endangering the lives or safety of the public, and by such operation causing the death of another person, G.L. c. 90, § 24G( a); and (2) failing to operate a motor vehicle within marked lanes, G.L. c. 89, § 4A. The indictments arose out of a fatal accident that occurred in Adams. After a trial before a Superior Court judge sitting without a jury, the defendant was found guilty on both indictments.¹

On appeal, the defendant claims that two Superior Court judges, one the motion judge, the other the trial judge, erred in denying his Daubert–Lanigan motion ² to exclude the testimony of the Commonwealth's accident reconstruction expert as to the cause and location of the accident. The defendant also argues that the trial judge erred in (1) denying his motion for required finding of not guilty, and (2) admitting consciousness of guilt evidence regarding his failure to appear on a date previously scheduled for trial.

1. The Daubert–Lanigan motion. Prior to trial, the defendant filed a motion in limine to preclude the Commonwealth from introducing in evidence the opinion of its accident reconstruction expert, State Trooper David Sanford. Trooper Sanford opined that while driving north on North Summer Street in Adams, the defendant left his lane of travel, crossed over a double yellow line, went into the southbound lane, and struck a motorcycle, resulting in the death of the motorcycle operator. The defendant's expert disagreed, asserting that the decedent, traveling in the southbound lane, crossed the double yellow line into oncoming traffic and struck the defendant's vehicle in the northbound lane.

In the motion, the defendant claimed that Trooper Sanford's opinion was not reliable because he failed to utilize any scientific methods, analysis, or mathematical calculations in forming his opinion that the collision occurred in the southbound lane. Therefore, according to the defendant, Trooper Sanford's testimony did not meet the standards of admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ( Daubert ), and Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994) ( Lanigan ). An affidavit from the defendant's accident reconstruction expert accompanied the motion. The defendant requested an evidentiary hearing. In response to the motion, the Commonwealth submitted Trooper Sanford's collision reconstruction report (report).

The defendant does not challenge the science of accident reconstruction. ³ Rather, he claims that the motion judge and the trial judge erred by failing to determine whether Trooper Sanford, in reaching his opinion, correctly applied the science of accident reconstruction to the particular facts in this case in a reliable manner. See Commonwealth v. Patterson, 445 Mass. 626, 645–648, 840 N.E.2d 12 (2005).

At the motion hearing, after reading Trooper Sanford's report and listening to the arguments of counsel, the judge decided not to hold an evidentiary hearing and ruled that Trooper Sanford's opinion was admissible at trial because there was a factual basis for his opinion, and it was therefore reliable.

At trial, the defendant moved for reconsideration of his Daubert–Lanigan motion by the trial judge (who was not the motion judge). The trial judge refused to consider the motion but offered to send it to the motion judge for his reconsideration. At that point, the defendant withdrew his motion. The trial judge stated he would consider the admissibility of Trooper Sanford's opinion testimony after he had testified. The defendant agreed to that procedure. At the conclusion of Trooper Sanford's testimony, the defendant moved to strike, claiming that the factual basis of the opinion was unreliable. The trial judge denied the motion, and the defendant claims error.

Prior to the admission of scientific or technical evidence, a “judge must first rule on any challenge to the validity of any process or theory underlying a proffered [scientific or technical] opinion. ‘This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.’ ” Lanigan, 419 Mass. at 26, 641 N.E.2d 1342, quoting from Daubert, 509 U.S. at 592–593, 113 S.Ct. 2786. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ( Daubert applies to testimony of engineers and other experts who are not scientists). In acting as gatekeeper, the judge may, but is not required to, hold an evidentiary hearing. Palandjian v. Foster, 446 Mass. 100, 111, 842 N.E.2d 916 (2006). We review the claimed errors under the abuse of discretion standard, see Canavan's Case, 432 Mass. 304, 311–312, 733 N.E.2d 1042 (2000), addressing the claims of error at each stage of the proceedings.

a. The evidence at the motion hearing. The record before the motion judge consisted of Trooper Sanford's report. We summarize its contents. Trooper Sanford was dispatched to the accident scene shortly after the accident. Upon arrival at the scene, the trooper observed the defendant's vehicle and the decedent's motorcycle in the southbound lane, against another vehicle parked at the southbound curb. According to the report, at the time of the collision, the decedent was ejected from his motorcycle, struck the defendant's vehicle's windshield with his head, then traveled over that vehicle and fell to the road behind the defendant's vehicle in the southbound lane. Trooper Sanford observed gouge marks,⁴ scratches, and scuff marks ⁵ in the southbound lane. The trooper ordered photographs to be taken and later made measurements at the scene. He also read witnesses' statements, including one from a witness who stated that he observed the defendant's vehicle cross the center line just before the collision. The report concluded with Trooper Sanford's opinion that “this collision was caused by the failure of [the defendant] to stay within marked lanes. All the pavement evidence, scratches, gouges and scuff marks were in the southbound lane. A witness observed [the defendant's vehicle] cross the centerline. Further, medical evidence indicates that the [defendant] was operating under the influence of intoxicating liquor: 0.24% BAC.”

It is clear that Trooper Sanford's conclusions were based, in large measure, on the observations he made at the accident scene. The defendant argues that observations are not enough, and that Trooper Sanford should have utilized scientific methods, analysis, or mathematical calculations in forming his opinion. The defendant failed to argue why, in this particular instance, it was necessary for the trooper to employ such devices.⁶ We conclude that the motion judge did not abuse his discretion in denying the defendant's motion without an evidentiary hearing.

b. Trooper Sanford's testimony at trial. The defendant further claims that the trial judge erred when he did not conduct a Daubert–Lanigan hearing at trial. We reject the defendant's claim and conclude that once a judge has decided a Daubert–Lanigan motion before trial, the trial judge is not required to conduct another hearing on the motion, even if the trial judge was not the judge who had ruled earlier on the motion.

We recognize, however, that the motion judge's ruling was not final, and it is clear that the defendant could still challenge Trooper Sanford's opinion before the trier of fact, here the trial judge. See Higgins v. Delta Elevator Serv. Corp., 45 Mass.App.Ct. 643, 648, 700 N.E.2d 833 (1998). In that regard, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Ibid., quoting from Daubert, 509 U.S. at 596, 113 S.Ct. 2786.

At trial, Trooper Sanford testified in accord with his report. Further, he stated that he measured the gouge marks he observed in the southbound lane and they matched marks he found on the undercarriage of the defendant's vehicle. On cross-examination, he testified that he did not perform any empirical mathematical equations and did not make any momentum calculations: “[b]ecause [of] the relative size of the two vehicle[s], the car is much heavier than the motorcycle and throws the mathematical calculation off.” The fact that Trooper Sanford did not perform certain tests goes to the weight of his testimony, not its admissibility.

Richard Montefusco, an accident reconstruction expert, testified for the defense. He first examined the accident scene on May 4, 2007, over nine months after the accident. Montefusco did not see gouge marks on the road, and he challenged Trooper Sanford's testimony that the marks in the road that he observed were gouge marks.

Montefusco testified that the debris in the roadway, including glass in the northbound lane, indicated that the collision had actually occurred in the northbound lane rather than the...