Commonwealth v. Ray ( 2019 )

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17-P-460 Appeals Court
COMMONWEALTH vs. BRENDAN W. RAY.
No. 17-P-460.
Plymouth. February 6, 2019. - August 29, 2019.
Present: Henry, Lemire, & Ditkoff, JJ.
Practice, Criminal, Dismissal, Citation for violation of motor
vehicle laws, Delay in commencement of prosecution. Motor
Vehicle, Operating under the influence, Operating to
endanger, Citation for violation of motor vehicle law,
Investigation of accident. Notice.
Indictment found and returned in the Superior Court
Department on December 7, 2015.
A motion to dismiss was heard by Thomas F. McGuire, Jr.,
J., and a motion for reconsideration was considered by him.
Jessica Heaton, Assistant District Attorney, for the
Commonwealth.
Jason Green, Committee for Public Counsel Services, for the
defendant.
DITKOFF, J. The Commonwealth appeals from an order of a
Superior Court judge dismissing so much of an indictment as
charged the defendant, Brendan W. Ray, with causing serious
bodily injury while operating a motor vehicle recklessly or
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negligently and while under the influence of an intoxicating
substance, G. L. c. 90, § 24L (1), because of failure to comply
with the "no-fix" statute, G. L. c. 90C, § 2. Concluding that
the Commonwealth failed to show that the over ten-month delay
was necessary to determine the nature of the violation, and that
neither an earlier citation for negligent operation, G. L.
c. 90, § 24 (2) (a), nor the nature of the accident provided the
defendant with sufficient notice that he would be charged with
this crime, we affirm.
1. Background. "We adopt the Superior Court judge's
factual findings, which we do not disturb absent clear error,
and supplement them with uncontroverted details from the
record." Commonwealth v. O'Leary, 480 Mass. 67, 67-68 (2018),
citing Commonwealth v. Burnham, 90 Mass. App. Ct. 483, 484 n.1
(2016). At approximately 10 P.M. on January 23, 2015, an
accident involving two cars occurred in the area of Bedford
Street in Whitman. When police arrived at the scene, a blue
Volvo with extensive damage was stopped at an angle on the side
of the road. The driver of the Volvo was removed from the car
and transferred to a hospital by helicopter for treatment of
life-threatening injuries. A red Jeep (allegedly operated by
the defendant) was overturned, lying on its passenger side in
the road. The Jeep had severe damage to its front end, and its
hardtop roof and rear passenger-side tire were detached. A
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police detective observed an expired inspection sticker on the
Jeep. Meanwhile, the defendant was seated on railroad ties
along the edge of a driveway approximately ten to twenty feet
from the Volvo. The defendant told police that he had no
recollection of the accident. The defendant was profusely
bleeding from his mouth, nose, and face, and was transported to
the hospital by ambulance.
Police were unable to determine the cause of the accident
right away and did not charge the defendant with a crime or
issue a citation on the night of the accident. At approximately
2:13 A.M. that night, a detective went to South Shore Hospital
to interview the defendant. The defendant told the detective
that he had no memory of the accident. He recalled that he was
at a friend's house in Bridgewater before the accident but could
not remember the name of the friend. The detective noticed "a
slight odor of alcohol coming from [the defendant]" but did not
form the opinion that he was intoxicated at that time. The
defendant told the detective that he drank a couple of beers at
his friend's house earlier that night.
On January 30, 2015, seven days after the accident, the
detective prepared a report stating that the accident was still
being investigated. The detective also reported that the
defendant's vehicle, traveling northbound, crossed the center
line into the southbound lane and collided with the blue Volvo.
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On January 31, 2015, the defendant attempted to retrieve
his Jeep at the Whitman police station. The detective told the
defendant that the accident was still being investigated and the
Jeep could not yet be released. The detective again asked the
defendant if he remembered the accident. This time, the
defendant recalled that the rear tire detached from the Jeep and
he lost control of the vehicle and crashed. The detective told
the defendant that the driver of the Volvo was severely injured
and remained in the hospital in a medically-induced coma. He
also told the defendant that criminal charges could be issued as
a result of the accident.
In mid-March 2015, the State trooper responsible for the
accident reconstruction investigation reported that "the
accident was not caused by mechanical failure" and that the tire
came off the Jeep as a result of the accident, not prior to the
accident. On March 20, 2015, the detective issued the defendant
a motor vehicle citation listing charges of negligent operation
of a motor vehicle, G. L. c. 90, § 24 (2) (a); a marked lanes
violation, G. L. c. 89, § 4A; and failure to have the motor
vehicle inspected, G. L. c. 90, § 20. A complaint issued from
the District Court, and the defendant was arraigned on the
charges on July 15, 2015.
On December 4, 2015, the detective testified before a grand
jury. The defendant's medical records were provided to the
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grand jury and indicated that the defendant had a blood alcohol
level of .17 at the time of his hospitalization and had also
tested positive for marijuana. The grand jury returned an
indictment on December 7, 2015, charging the defendant with
causing serious bodily injury while operating a motor vehicle
recklessly or negligently and while under the influence of
intoxicating liquor or drugs, G. L. c. 90, § 24L (1). No
citation was ever issued for this charge. The District Court
charges were dismissed in favor of the indictment.
The defendant filed a motion to dismiss the indictment for
failure to provide him with a motor vehicle citation as required
by G. L. c. 90C, § 2. After an evidentiary hearing in which the
sole witness was the detective, the judge allowed in part the
defendant's motion to dismiss. Concluding that the negligent
operation charge listed on the initial citation was properly
cited in compliance with G. L. c. 90C, § 2, and that it was a
lesser-included offense of the indicted charge, the judge
permitted the Commonwealth to proceed on the lesser charge. See
Commonwealth v. Flanagan, 76 Mass. App. Ct. 456, 462-463 (2010)
(all elements of negligent operation within greater crime under
G. L. c. 90, § 24L [1]).1
1 The partial dismissal is properly before us pursuant to
G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (1), as
amended, 476 Mass. 1501 (2017). See Commonwealth v. Jensen, 459
Mass. 21, 23 (2011). As the defendant has no right of
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2. Statutory framework. Under G. L. c. 90C, § 2, "[a]
failure to give a copy of the citation to the violator at the
time and place of the [automobile law] violation shall
constitute a defense in any court proceeding for such violation,
except [1] where the violator could not have been stopped or
[2] where additional time was reasonably necessary to determine
the nature of the violation or the identity of the violator, or
[3] where the court finds that a circumstance, not inconsistent
with the purpose of this section to create a uniform, simplified
and non-criminal method for disposing of automobile law
violations, justifies the failure." Where an exception applies,
the statute commands that "the violation shall be recorded upon
a citation as soon as possible after such violation." G. L.
c. 90C, § 2. It is undisputed that the defendant never received
a citation for the charge of causing serious bodily injury by
driving recklessly or negligently and while under the influence
of intoxicating liquor or drugs, G. L. c. 90, § 24L (1). The
Commonwealth, therefore, had the burden to establish that one of
the three statutory exceptions applied. See O'Leary, 480 Mass.
at 70; Burnham, 90 Mass. App. Ct. at 485 ("Where . . . the
citation was not delivered at the accident scene, the
interlocutory appeal from the denial of a motion to dismiss, the
propriety of allowing the negligent operation charge to remain
is not before us. See Doe v. Commonwealth, 435 Mass. 1001,
1001-1002 (2001).
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Commonwealth bears the burden to establish the applicability of
an exception"). "The statute by its terms requires no showing
of prejudice and . . . our courts have concluded that the
defendant need not show any actual prejudice from the delay."
Commonwealth v. Werra, 95 Mass. App. Ct. 610, 616 (2019).2
The Commonwealth does not argue that the first exception
justifies the failure to present the defendant with a citation.
Indeed, the defendant was stopped at the time of the incident.
Accordingly, we turn to the second and third exceptions.
3. The second exception. "The second exception to the
requirements of G. L. c. 90C, § 2, excuses delayed delivery of a
citation where 'additional time was reasonably necessary to
determine the nature of the violation.'" Burnham, 90 Mass. App.
Ct. at 486, quoting Commonwealth v. Pappas, 384 Mass. 428, 431
(1981). Although the citation, issued on March 20, 2015,
required additional time for the police to complete their
investigation, the same cannot be said for the indictment,
issued over ten months after the accident, that charged the
defendant with causing serious bodily injury by driving
recklessly or negligently and while under the influence of
2 Although this case involves the failure to issue a
citation at all, rather than the delay in issuance of a
citation, we assume without deciding that the issuance of an
indictment followed by service upon a defendant is the
functional equivalent of a citation. See Commonwealth v.
Kenney, 55 Mass. App. Ct. 514, 519 (2002).
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intoxicating liquor or drugs, G. L. c. 90, § 24L (1). See
Burnham, supra at 487 ("The ongoing nature of an investigation
may be a significant factor in discerning the reasonableness of
any delay in issuing a citation").
To be sure, it appears that the Commonwealth could not have
charged the defendant with causing serious bodily injury by
driving recklessly or negligently and while under the influence
of intoxicating liquor or drugs until it had secured the
defendant's medical records. Nonetheless, the Commonwealth
provided no evidence that these medical records were unavailable
to the government until December 2015, other than the
detective's belief that he lacked probable cause for a search
warrant. The Commonwealth simply failed to provide any evidence
of how and when it obtained the medical records, much less
evidence justifying the delay between the District Court
arraignment and the Superior Court grand jury presentation. The
absence of such information provides no confidence that the
additional time was reasonably necessary. Accordingly, the
motion judge properly found that the Commonwealth failed to show
a reasonable justification for any delay in issuing a citation
beyond March 2015 under the second exception.
4. The third exception. "The third exception to the
requirements of G. L. c. 90C, § 2, is a 'safety valve,' which
excuses delayed delivery of a citation where 'the court finds
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that a circumstance, not inconsistent with the purpose of this
section to create a uniform, simplified and non-criminal method
for disposing of automobile law violations, justifies the
failure.'" Burnham, 90 Mass. App. Ct. at 488, quoting
Commonwealth v. Riley, 41 Mass. App. Ct. 234, 236 (1996). We
determine the applicability of this exception with reference to
the dual purposes of G. L. c. 90C, § 2: "to prevent
'manipulation or misuse of the citation process because of any
unnecessary or unreasonable delay,'" O'Leary, 480 Mass. at 71,
quoting Commonwealth v. Cameron, 416 Mass. 314, 316 n.2 (1993),
and "to afford prompt and definite notice of the nature of the
alleged violation to the putative violator." O'Leary, supra,
quoting Pappas, 384 Mass. at 431.
We recognize that, in the face of a serious accident, the
failure to comply strictly with the requirements of G. L.
c. 90C, § 2, may not be fatal to the Commonwealth's case. See
Burnham, 90 Mass. App. Ct. at 488-489. In such cases, implicit
or explicit notice is "sufficient because the circumstances
involved serious injuries to third parties, an arrest of the
defendant, more serious charges requiring obvious investigation
such as motor vehicle homicide or leaving the scene after
causing personal injury, verbal notice from law enforcement that
a citation would be forthcoming, actions or statements by a
defendant evincing awareness of criminal conduct, or a
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combination of these factors." Id. at 489. See Commonwealth v.
Moulton, 56 Mass. App. Ct. 682, 685 (2002) (seriousness of
accident combined with officer's warning to defendant that
citation would be issued was sufficient to provide defendant
with implicit notice of violation); Commonwealth v. Kenney, 55
Mass. App. Ct. 514, 519-520 (2002) (seriousness of hit and run
accident put defendant on notice of criminal charges despite no
citation being issued); Commonwealth v. Barbuto, 22 Mass. App
Ct. 941, 943 (1986) (seriousness of hit and run accident, among
other things, justified delay in issuing citation). Indeed,
"there is no bright-line rule to ascertain whether a particular
delay in issuing a citation is justified. Rather, '[e]ach case
much be decided on its own peculiar facts.'" Burnham, supra at
485, quoting Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484
(1981).
Under the circumstances of this case, the defendant had
neither explicit nor implicit notice of the violation at issue.
Our analysis is guided by our decision in Burnham. There,
following a single-car accident, the police promptly issued the
defendant a citation for operating after the suspension of his
driver's license and a marked lanes violation. Burnham, 90
Mass. App. Ct. at 484. More than four months after the first
citation was issued, following the defendant's arrest for an
unrelated incident, the prosecutor reopened the initial
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investigation and, based on the defendant's medical records from
the night of the accident, instructed the investigating officer
to issue the defendant another citation for operating under the
influence of intoxicating liquor. Id. at 484-485. We concluded
that the circumstances of the case did not justify delayed
delivery of a citation under the third exception because the
defendant was not on notice that more serious criminal charges
were forthcoming. Id. at 490.
The same is true here. The defendant no doubt had notice
of the possibility of criminal charges arising from the
accident. Indeed, the detective personally told the defendant
in January 2015 that he could be criminally charged for the
accident. Nothing, however, provided the defendant with notice
that he should have expected to be charged with more serious
violations than those charged in the March 2015 citation:
negligent operation, a marked lanes violation, and failure to
have the motor vehicle inspected. The issuance of a citation
for an infraction or a minor criminal charge does not by itself
provide implicit notice of a more serious charge. See Werra, 95
Mass. App. Ct. at 616, quoting Burnham, 90 Mass. App. Ct. at 490
(dismissal warranted where "the defendant did not have prompt
and definite notice of the offense for which he was charged").
Indeed, the citation issued to the defendant, followed by months
of inaction, was more likely to lead the defendant to believe
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that no more criminal charges were forthcoming. Moreover,
unlike many cases in which we have applied the third exception,
the defendant received no oral notice that the new charge was
forthcoming. See, e.g., Moulton, 56 Mass. App. Ct. at 683.
Despite the serious injuries resulting from the accident,
this is not a case in which those injuries "put the defendant on
notice of the potential charges against him and created an
ineradicable record of the event." Kenney, 55 Mass. App. Ct. at
520, quoting Commonwealth v. Carapellucci, 429 Mass. 579, 581
(1999). The accident at issue here, "although not a mere
fleeting traffic incident, was not so serious standing alone to
confer implicit notice on the defendant pursuant to the third
exception." Burnham, 90 Mass. App. Ct. at 490. Cases where
notice was sufficient have generally involved the analysis of
many factors, including but not limited to the seriousness of
the injuries. For example, in Kenney, we concluded that it was
"inconceivable that the defendant would be unaware of the
seriousness of [the] situation," and, therefore, dismissal of
the defendant's indictments was not warranted. Kenney, supra at
519, quoting Pappas, 384 Mass. at 431-432. There, the defendant
struck a pedestrian with her car and immediately fled the scene
of the crime. Kenney, supra at 515.
Here, there is no indication that the defendant had any
reason to believe a second charge would be issued more than ten
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months after the accident and more than eight months after the
initial citation was issued. To the contrary, the defendant
reported that he did not remember the accident. The defendant
did not flee the scene or express any fear of further
prosecution. Moreover, it appears that the investigating
detective himself thought that the cited charges would be the
extent of the defendant's criminal exposure. We cannot conclude
that the defendant would be able to predict the issuance of a
new charge, months later, where there is no evidence that the
experienced law enforcement professional predicted this outcome.
Neither the citation nor the seriousness of the accident
provided the defendant with implicit notice that a more serious
charge would be forthcoming. Accordingly, the motion judge
properly allowed in part the motion to dismiss. The order dated
October 31, 2016, is affirmed.
So ordered.