Commonwealth v. O'Leary

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SJC-12445
COMMONWEALTH vs. RICHARD O'LEARY.
Norfolk. March 5, 2018. - July 12, 2018.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Budd, JJ.
Motor Vehicle, Citation for violation of motor vehicle law.
Practice, Criminal, Citation for violation of motor vehicle
laws, Dismissal. Notice.
Indictments found and returned in the Superior Court
Department on September 23, 2014.
A motion to dismiss was heard by Beverly J. Cannone, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Douglas T. Babcock for the defendant.
Pamela Alford, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Richard O'Leary, asks this court
to determine whether the Commonwealth met its burden of proving
compliance with the citation requirement of G. L. c. 90C, § 2,
which mandates the issuance of a traffic citation "at the time
2
and place of the violation," despite the fact that a State
police trooper did not issue a traffic citation at the scene of
the violation or at the hospital following the interviews he
conducted. Instead, before issuing the citation, the trooper
submitted an accident report to his supervisor for approval,
which the trooper received nine days later. Because we consider
this unexplained, nine-day delay in the citation's issuance to
be inconsistent with one of the two legislative purposes of the
"no-fix" provision -- specifically, the antiabuse purpose -- we
affirm the dismissal of the indictments.
Facts and procedural history. 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. Burnham, 90 Mass. App. Ct. 483, 484 n.1
(2016), citing Commonwealth v. Eckert, 431 Mass. 591, 592
(2000). Around 10:30 P.M. on April 19, 2014, State police
Trooper Jared Gray responded to an accident on a highway off-
ramp. Gray arrived to find that a single vehicle had rolled
over and dislodged a highway sign; the police had closed the
off-ramp, and emergency medical services were at the scene. Two
individuals, the defendant and a passenger, Patricia Murphy, had
been injured in the accident. Both the defendant and Murphy
claimed to be passengers in the vehicle, and both were
transported to a hospital.
3
Gray followed the ambulances to the hospital to interview
the defendant and Murphy. He left his citation book in his
vehicle. He first spoke with Murphy, who reiterated that she
had been a passenger in the vehicle. During this interview, it
appeared to Gray that Murphy was intoxicated. Gray then spoke
with the defendant. Gray gave the defendant Miranda warnings,
and the defendant admitted that he had been the driver of the
vehicle and that he had had "a couple of beers." The
defendant's "eyes were glassy" and "his speech was slurred." At
the time of the accident, the defendant was on probation for
operating a motor vehicle while under the influence of alcohol
(OUI), subsequent offense. His license had been suspended, and
he was not legally permitted to drive. Gray informed the
defendant that he would be receiving a summons in the mail for
OUI, a marked lanes violation, and operating with a suspended or
revoked license.
Gray did not issue a citation at that time. Gray later
submitted his investigation report to his supervisor, who
approved the report nine days later, on April 28, 2014.1 On that
day, Gray issued citations to the defendant for a marked lanes
violation, operation of a motor vehicle with license suspended
1 State police trooper Jared Gray testified at the motion to
dismiss hearing that, upon leaving the hospital, his shift was
over so he went home. The record does not establish exactly
when Gray submitted the report to his supervisor.
4
for OUI, operation of a motor vehicle with license revoked, and
OUI, fifth offense. Gray then placed the citations in the
barracks mailbox.2 Due to a ZIP code error in the State police
reports system, however, the defendant did not receive the
citation until approximately five to six weeks after the
incident.
A Superior Court judge granted the defendant's motion to
dismiss on the grounds that Gray had failed to issue a citation
"at the time and place of the violation," as required under § 2,
and because the Commonwealth did not meet its burden of
demonstrating that an exception in § 2 applied. The Appeals
Court reversed, holding that the case fit within the third
statutory exception, which excuses delayed delivery of citation
"where the court finds that a circumstance, not inconsistent
with the purpose of [§ 2] . . . , justifies the failure."
Commonwealth v. O'Leary, 92 Mass. App. Ct. 282, 284, 286-287
(2017), quoting G. L. c. 90C, § 2. While noting that there did
not appear to be "any strong reason for the delay" in issuing
the citation, id. at 286, the court considered dismissal
unnecessary where "there was no manipulation or misuse of the
2 Gray testified that, when sending mail, officers from his
department "put mail in our barracks mail box. That barracks
mail box is transported to headquarters in Middleboro, and then
sent out from there." He agreed that "it would have been at
least several days" between when he placed an item in the mail
box and when that item was mailed.
5
citation, and [Gray] notified the defendant as soon as he had
completed his interview . . . that a citation would be issued."
Id. at 286-287, quoting Commonwealth v. Moulton, 56 Mass. App.
Ct. 682, 685 (2002). We granted the defendant's motion for
further appellate review.
Discussion. Section 2 requires a police officer assigned
to traffic enforcement duty to
"record the occurrence of automobile law violations upon a
citation, filling out the citation and each copy thereof as
soon as possible and as completely as possible . . . .
Said police officer shall inform the violator of the
violation and shall give a copy of the citation to the
violator. . . . A failure to give a copy of the citation
to the violator at the time and place of the violation
shall constitute a defense in any court proceeding for such
violation, except where the violator could not have been
stopped or where additional time was reasonably necessary
to determine the nature of the violation or the identity of
the violator, or 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. In
such case the violation shall be recorded upon a citation
as soon as possible after such violation . . . ."3
In 1965, then Governor John A. Volpe proposed what has been
referred to as the "no-fix" provision, in response to the
concern that "[t]he nature of traffic citations renders them
uniquely suited to manipulation and misuse." Commonwealth v.
Pappas, 384 Mass. 428, 431 (1981), citing 1965 Senate Doc. No.
839, at 2. See Newton Police Ass'n v. Police Chief of Newton,
3 The relevant statutory language took its present form in
1985 through St. 1985, c. 794, § 3. See Newton Police Ass'n v.
Police Chief of Newton, 63 Mass. App. Ct. 697, 700 n.5 (2005).
6
63 Mass. App. Ct. 697, 699 (2005). Prior to the provision's
insertion, a "police officer who witnessed a traffic offense
would record the violation on a citation form and submit it to
police headquarters. Within three days from the receipt of the
citation, the police chief or a designated officer of at least
sergeant grade would decide [how] to proceed" -- for instance,
by issuing a written warning or court complaint, or by voiding
the citation. Id.
By inserting § 2 in the statute to require the issuance of
a citation "at the time and place of the violation," the
Legislature sought to eliminate "opportunity for subsequent
maneuvering or pressure" that the prior three-day approval
window created. 1965 Senate Doc. No. 839, at 2. See Newton
Police Ass'n, 63 Mass. App. Ct. at 700-701 (in enacting § 2,
Legislature deliberately transferred discretion from police
chief to police officer at scene to deal with perceived evil of
traffic citation manipulation).
"Where the requirements of the statute are not followed,
the complaint shall be dismissed regardless of whether the
defendant was prejudiced by the failure." Commonwealth v.
Carapellucci, 429 Mass. 579, 581 (1999), citing Commonwealth v.
Mullins, 367 Mass. 733, 735 (1975). In this case, it is
undisputed that the defendant did not receive "a copy of the
citation . . . at the time and place of the violation." G. L.
7
c. 90C, § 2. It is therefore the Commonwealth's burden to
establish that one of the three statutory exceptions applies.
See Mullins, supra at 734-735.
The Commonwealth argues that the third statutory exception
applies in these circumstances. This exception excuses the
"failure to give a copy of the citation to the violator at the
time and place of the violation . . . 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." G. L. c. 90C, § 2.4 The defendant maintains that the
third exception does not apply to these facts, and argues
further that, even if it does, the case still must be dismissed
in light of additional statutory language requiring that a
citation be issued "as soon as possible" after the violation.
We determine the applicability of the third exception with
reference to the dual purposes of § 2. The first purpose, which
"is apparent from the common name of the statute, the 'no-fix'
4 The first exception, which excuses immediate issuance of a
citation "where the violator could not have been stopped," is
not applicable here. Nor do these facts support an application
of the second exception, "where additional time was reasonably
necessary to determine the nature of the violation or the
identity of the violator." G. L. c. 90C, § 2. The Superior
Court judge observed that "[t]he defendant was present at the
scene of the accident and Gray completed his investigation into
the nature of the violation and the identity of the violator by
the time he left [the hospital]."
8
law," Pappas, 384 Mass. at 431, is to prevent "manipulation or
misuse of the citation process because of any unnecessary or
unreasonable delay." Commonwealth v. Cameron, 416 Mass. 314,
316 n.2 (1993), citing Pappas, supra. The second purpose is "to
afford prompt and definite notice of the nature of the alleged
violation to the putative violator." Pappas, supra. We also
bear in mind the principle that, under the no-fix statute,
"[e]ach case must be decided on its own peculiar facts."
Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484 (1981).
In the trial court and before us, the Commonwealth's
arguments have focused primarily on whether the defendant was
placed on notice of the impending criminal charges, such that
the notice purpose of the no-fix statute was satisfied. To be
sure, in some cases (including those on which the Commonwealth
relies), the question of notice was dispositive of whether the
third exception in § 2 applied, because the circumstances of
those cases did not also implicate the antiabuse purpose of the
no-fix provision. See, e.g., Cameron, 416 Mass. at 316 n.2
("The other purpose of the 'no-fix' law is not involved in this
case. There is no suggestion of manipulation or misuse of the
citation process because of any unnecessary or unreasonable
delay"); Moulton, 56 Mass. App. Ct. at 683, 685 (no-fix purpose
of statute satisfied where "there was no manipulation of misuse
of the citation," and officer promptly issued citation to
9
defendant on day of accident); Commonwealth v. Kenney, 55 Mass.
App. Ct. 514, 518 (2002) ("The defendant makes no contention
that the 'no-fix' ticket manipulation aspect of the statute is
implicated. Rather, the defendant's principal claim rests upon
the notice provision").
Here, however, the facts mandate that we also consider
whether the antiabuse purpose of § 2 has been satisfied. We
conclude that it has not. Gray did not give the defendant a
citation at the scene of the accident or at the hospital. This
is despite the fact that "[t]he defendant was present at the
scene of the accident and Gray completed his investigation into
the nature of the violation and the identity of the violator by
the time he left [the hospital]." Rather, Gray returned to the
police station, drafted an accident report, and submitted that
report to his supervisor -- who took nine days to approve Gray's
report. Only then did the citation issue. The Superior Court
judge deemed this delay "[i]nexplicabl[e]."5 What is more,
Gray's testimony at the hearing indicates that the approval
process and ensuing delay were attributable to the regular
procedure of his department:
5 The Appeals Court observed in its opinion that "there does
not appear to have been any strong reason for the delay," adding
that it "[did] not condone Trooper Gray's election to await
review and 'approval' of his report by his supervisor before
issuing a citation." Commonwealth v. O'Leary, 92 Mass. App. Ct.
282, 286 & n.8 (2017).
10
Q.: "Now, after you had left the hospital, what is the
procedure you underwent to inform [the defendant] of the
charges?"
A.: "Basically when it's a summons, we go back; we
complete our investigation, write the report, print out the
documentation, submit it to a supervisor. A supervisor
then approves that report. Once it's approved, you print
it and submit all your court paperwork. At that time, I
wrote the citation and put it in the mail for [the
defendant]."
The third exception of G. L. c. 90C, § 2, excuses delayed
delivery of a citation where "a circumstance, not inconsistent
with the purpose of this section . . . , justifies the failure."
As mentioned, the no-fix provision was added to § 2 to eliminate
not only actual manipulation or misuse of the citation process,
but also the "'opportunity for subsequent maneuvering or
pressure' afforded by the [prior] three-day [approval] period"
(emphasis added). Newton Police Ass'n, 63 Mass. App. Ct. at
699, quoting 1965 Senate Doc. No. 839. Under the earlier
practice that the Legislature sought to eliminate, an officer on
traffic duty would record the citation and submit it to
headquarters for later approval by the officer's supervisors.
Newton Police Ass'n, supra.
The circumstances that caused the delay in this case are
strikingly similar: rather than issue a citation "at the time
and place of the violation," G. L. c. 90C, § 2, Gray drafted an
accident report and submitted it to his supervisor, whose
approval was necessary for the citation to issue. It was this
11
very practice of traffic officers requiring supervisory
approval, and the delay in time that this created between the
traffic violation and the ultimate issuance of the citation,
that the Legislature deemed too great an "opportunity for
subsequent maneuvering or pressure." Newton Police Ass'n, 63
Mass. App. Ct. at 699, quoting 1965 Senate Doc. No. 839. Here,
the delay was for an "[i]nexplicabl[e]" nine days. We cannot
conclude, based on the history and antiabuse purpose of the no-
fix provision, that these circumstances somehow remain
"[]consistent with the purpose of [§ 2]." G. L. c. 90C, § 2.
Even if it were undisputed that the defendant received
sufficient notice of the impending charges against him, this
same fundamental problem would remain.
The Commonwealth argues that the accident itself was so
serious that it created an "ineradicable record of the event,"
Carapellucci, 429 Mass. at 581, such that any potential for a
"fix" was eliminated. Indeed, our cases recognize that "the
very seriousness of particular charges tends to minimize the
importance of absolute observance of the [citation] procedures
because . . . 'fix' is virtually excluded, and notice is
implicit." Commonwealth v. Babb, 389 Mass. 275, 283 (1983). In
Pappas, 384 Mass. at 431-432, for example, where the defendant's
vehicle "crossed the center line of a public street and struck a
pedestrian," causing fatal injuries, we acknowledged that it was
12
"unlikely in such circumstances that police officers responding
at the scene would regard this as a minor accident in which
their discretion concerning whether to issue a citation would be
absolute and unchecked." See Babb, supra at 284, citing Pappas,
supra (same). On the other hand, in Carapellucci, 429 Mass. at
580, the defendant's vehicle collided head on with a lamp post,
resulting in minor injuries to the defendant's passenger. This
court observed that that was "not a case in which the serious
injuries resulting from the traffic violation . . . put the
defendant on notice of the potential charges against him and
created an ineradicable record of the event." Id. at 581,
citing Pappas, supra at 431. See Carapellucci, supra at 582
(no-fix purpose furthered by "the causing of a serious injury,
which creates such a record that manipulation is extremely
unlikely").
This case hews more closely to Carapellucci, as it involves
only a single-vehicle accident in which no third person was
injured (let alone injured seriously or fatally). To be
certain, the accident in this case was significant: the
defendant's vehicle rolled over, the defendant and Murphy were
transported to the hospital on stretchers, and Murphy testified
that she broke several ribs.6 However, the Commonwealth -- whose
6 As the Appeals Court noted, "[t]here are no medical
records pertaining to the injuries suffered by the defendant or
13
burden it is to establish that a statutory exception in § 2
applies -- cites no authority holding that such a single-vehicle
accident involving nonfatal injuries to a passenger but no third
person creates an "ineradicable record of the event," such that
the antiabuse purpose of § 2 is satisfied. Carapellucci, 429
Mass. at 581. Cf. Burnham, 90 Mass. App. Ct. at 490 ("we are
unaware of any authority, and the Commonwealth cites to none,
which has held that a single-[vehicle] accident, standing alone,
provides a defendant with sufficient implied notice that
satisfies the requirements of G. L. c. 90C, § 2").
Conclusion. While "failure to comply with [the citation
requirement of § 2] is not fatal where the purposes of the
statute have not been frustrated," Babb, 389 Mass. at 283, here,
one of those purposes has been frustrated. The nine-day delay
in the issuance of the citation, in the absence of any
justification (legitimate or otherwise), contravenes the
original, antiabuse purpose of the statute, such that the third
exception in § 2 does not apply.7 "[W]here an important feature
Murphy in the record before us. However, Murphy testified that
she suffered several broken ribs." O'Leary, 92 Mass. App. Ct.
at 283 n.3.
7 Given our holding that the antiabuse purpose of the no-fix
provision was frustrated by the initial nine-day delay in the
citation's issuance, we need not address the additional five to
six weeks that it took for the defendant to actually receive the
citation. Nor do we address the defendant's additional argument
14
of the statutory arrangements was flouted through sloth or sheer
inattention of the police, the subsequent complaint [must be]
dismissed." Commonwealth v. Perry, 15 Mass. App. Ct. 281, 283
(1983), citing Mullins, 367 Mass. at 735-736. The order
dismissing the complaint against the defendant is affirmed.
So ordered.
that the citation was not issued "as soon as possible" after the
violation, as required under § 2.