Commonwealth v. Guaman

• Decision Date: 17 August 2016
• Docket Number: No. 14–P–1965.,14–P–1965.
• Citation: 90 Mass.App.Ct. 36,56 N.E.3d 830
• Parties: COMMONWEALTH v. Nicolas Dutan GUAMAN.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 36

56 N.E.3d 830

COMMONWEALTH

v.Nicolas Dutan GUAMAN.

No. 14–P–1965.

Appeals Court of Massachusetts, Worcester.

Argued May 2, 2016.

Decided Aug. 17, 2016.

Ethan C. Stiles, Pembroke, for the defendant.

Donna–Marie Haran, Assistant District Attorney, for the Commonwealth.

Present: AGNES, MASSING, & KINDER, JJ.

MASSING, J.

Following an afternoon of drinking beer, the defendant, Nicolas Dutan Guaman, drove off in his pickup truck, struck a motorcyclist, and continued to drive for several blocks while dragging the victim to his death. The defendant appeals from his convictions of manslaughter while operating a motor vehicle under the influence of intoxicating liquor in violation of G.L. c. 265, § 13 ½

(OUI manslaughter), felony motor vehicle homicide in violation of G.L. c. 90, § 24G(a ), and other related charges.¹ He claims that the evidence was insufficient to prove that he knowingly engaged in wanton or reckless conduct to sustain his conviction of OUI manslaughter. In addition, he contests evidentiary rulings admitting the recording of a 911 call and an English translation of his video-recorded sobriety tests. We affirm, but because felony motor vehicle homicide is a lesser-included offense of OUI manslaughter and the defendant cannot be punished for both, we vacate the conviction and sentence for felony motor vehicle homicide.

Background. As the defendant challenges the sufficiency of the evidence, we recite the facts in the light most favorable to the Commonwealth to determine whether a rational trier of fact could find the defendant guilty of the charges beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676–678, 393 N.E.2d 370 (1979)

; Commonwealth v. Giavazzi, 60 Mass.App.Ct. 374, 376, 802 N.E.2d 589 (2004) (“There must be adequate evidentiary support for each essential element of the offense”).

At about 7:50 p.m. on August 20, 2011, the defendant, driving his black Ford F–150 pickup truck with his six-year-old son Jonathan and his brother as passengers, rolled through a stop sign on Fayette Street in Milford. Matthew Denice was driving his motorcycle up Congress Street when the defendant's truck pulled out in front of him. As the victim quickly applied his brakes, the front driver's side of the truck hit the motorcycle. Motorcycle and rider rolled over the hood of the truck, crashed into the windshield, and landed on the passenger's side. After a moment's hesitation, the defendant quickly accelerated and drove south on Congress Street.

The victim, separated from his motorcycle, somehow got tangled with his legs beneath the chassis of the truck. A number of people saw the defendant's truck drag the victim along the street. At first the victim banged on the truck and yelled for the defendant to stop, but the truck continued moving down Congress Street, turned right on West Street, and then attempted to turn left on Bancroft Street. The victim emitted “bloodcurdling” screams as he was dragged along the road. As the truck drove on, dragging the victim for a nearly quarter of a mile, several witnesses banged on the truck or yelled for the defendant to stop, but the defendant continued to drive, outpacing the people who were trying to get his attention.

Unable to turn left because of damage to the truck, the defendant drove onto the curb, put the truck in reverse, and then accelerated down Bancroft Street. This manoeuver released the victim, who was left lying in the street. One of the first police officers on the scene attended to the victim. When the officer removed the victim's helmet, he took a final breath and died.

Other officers pursued the defendant's truck. He ignored their lights and sirens and sped up. At last the defendant turned down a narrow street and the officers were able to force his truck to a stop. He did not respond to orders to get out of the truck, so the officers pulled him out. His eyes were bloodshot and extremely glassy, he was unsteady on his feet, and his breath smelled strongly of alcohol. The interior of the truck also reeked of alcohol and was littered with empty beer cans, open cans that were still cold, and the remainder of a thirty-pack of beer.

During the course of the arrest the police realized that the defendant did not speak English. A Spanish-speaking officer, Angel Arce, took over the arrest. Arce had little trouble communicating with the defendant, although it later became known that the defendant was a native of Ecuador and spoke both the Quechua language and dialect of Spanish. The police took the defendant to the station, where Arce conducted sobriety tests and then booking procedures, which were video recorded. The defendant was unable to follow instructions and at one point informed Arce that he was having difficulty with the tests because he had drunk six beers.

The defendant had been drinking for several hours before he hit the victim's motorcycle. Earlier that afternoon, around 4:30 p.m. , the defendant had driven his truck to his brother's apartment in Milford and parked behind the building. The defendant brought Jonathan with him, as well as a supply of beer. He already appeared drunk.

The defendant and his brother drank beer in and around the truck and the back porch, while Jonathan played in the backyard with his nine-year-old cousin Vivian (the defendant's brother's step-daughter) and other neighborhood children. After an hour or two, in which the defendant drank at least five cans of beer, the defendant, Jonathan, and his brother got in the truck to drive away. Concerned for her cousin's safety, Vivian told Jonathan not to get into the truck because his father was drunk. She also told the defendant not to take Jonathan. When the defendant nonetheless drove away with his son and brother, Vivian, scared and worried that something would happen, called her mother. When her mother arrived home soon after, Vivian called 911 at 6:15 p.m. to report that the defendant was driving drunk with her cousin in the truck.

Discussion. 1. Sufficiency of the evidence—wanton or reckless conduct. General Laws c. 265, § 13 ½,

inserted by St. 2005, c. 122, § 20 (known as “Melanie's Law”), punishes “[w]hoever commits manslaughter while operating a motor vehicle in violation of paragraph (a ) of subdivision (1) of section 24 of chapter 90.” General Laws c. 90, § 24(1)(a ), incorporated by reference in the OUI manslaughter statute, punishes operating a motor vehicle under the influence of intoxicating alcohol (OUI). Thus, G.L. c. 265, § 13 ½, consists of the elements of manslaughter plus the elements of OUI.

On the facts of this case, as in most scenarios in which OUI manslaughter would be charged, the crime requires proof of involuntary manslaughter based on wanton or reckless conduct.² See Commonwealth v. Liptak,

80 Mass.App.Ct. 76, 83, 951 N.E.2d 731 (2011). The elements of involuntary manslaughter are (1) that the defendant caused the victim's death, (2) that the defendant intended the conduct that caused the victim's death, and (3) that the defendant's conduct was wanton or reckless. See Commonwealth v. Welansky, 316 Mass. 383, 397, 55 N.E.2d 902 (1944) (Welansky ); Commonwealth v. Life Care Centers of America, Inc., 456 Mass. 826, 832, 926 N.E.2d 206 (2010) ; Supreme Judicial Court Model Jury Instructions on Homicide 75 (2013).

The defendant challenges the sufficiency of the evidence only with respect to the mens rea element of wanton or reckless conduct (he does not contend that the evidence was insufficient to prove that he caused the victim's death while OUI). His defense at trial was that he did not realize that he was dragging the victim and that, because of language and cultural barriers, he did not understand what the people on the street were trying to communicate to him. He asserts that the Commonwealth failed to prove that he acted recklessly in that he knowingly ran the risk that his conduct would result in the victim's death.

Proof of wanton or reckless conduct requires “more than a mistake of judgment or even gross negligence.” Commonwealth v. Michaud, 389 Mass. 491, 499, 451 N.E.2d 396 (1983)

. Wanton or reckless conduct is defined as “intentional conduct, ... which conduct involves a high degree of likelihood that substantial harm will result to another.” Welansky, supra at 399, 55 N.E.2d 902. “What must be intended is the conduct, not the resulting harm.” Id. at 398, 55 N.E.2d 902.

The Commonwealth may prove wanton or reckless conduct under a subjective standard, based on the defendant's specific knowledge, or an objective standard, based on what a reasonable person should have known under the circumstances. Commonwealth v. Pugh, 462 Mass. 482, 496, 969 N.E.2d 672 (2012)

. “If based on the subjective measure, i.e., the defendant's own knowledge, ‘grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter [his] conduct so as to avoid the act or omission which caused the harm.’ ” Id. at 497, 969 N.E.2d 672

, quoting from Welansky, supra. “If based on the objective measure of recklessness, the defendant's actions constitute ‘wanton or reckless conduct ... if an ordinary normal [man] under the same circumstances would have realized the gravity of the danger.’ ” Id. at 496–497, 969 N.E.2d 672, quoting from Welansky, supra at 398–399, 55 N.E.2d 902.

Here, a rational trier of fact (in this case, the trial judge) could have found beyond a reasonable doubt that the defendant intentionally drove his truck in a wanton or reckless manner. To begin, the defendant chose to drive after he was visibly drunk and even his nine-year-old niece had warned him not to take his son with him. While evidence of the defendant's drunkenness standing alone may not have been sufficient to prove wanton or reckless conduct where, as here, the separate element of impairment must also be proven, but see Commonwealth v. Scott, 359 Mass. 407, 410, 269 N.E.2d 454 (1971)

(evidence sufficient “to warrant the...