Opinion
13-P-1777
03-23-2015
COMMONWEALTH v. WARREN TYLER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of manslaughter by motor vehicle in violation of G. L. c. 265, § 13½, arguing that the statute does not apply to manslaughter committed under a "reckless" theory, that the judge erred in refusing to give a lesser included offense instruction, and that the prosecutor's closing was improper. We affirm.
Background. Based upon the evidence at trial, the jury could have found the following facts.
Around 11:30 P.M. on January 7, 2010, Morgan Askins stopped at a gas station to buy cigarettes. He left his mother's 2002 blue Mazda minivan running, with the keys in the ignition. When he came back outside a few minutes later, the minivan was gone. Askins went to a nearby police station to report the theft. A city-wide radio broadcast issued for police to "be on the lookout" ("BOLO") for the Mazda. Askins was still in the police station when the vehicle was located approximately forty-five minutes later.
Boston police Officer Patrick Kane had just begun his 11:45 P.M. to 7:30 A.M. shift when a blue minivan matching the BOLO suddenly pulled away from the curb, barely missing the officer's patrol car. Officer Kane honked his horn and followed the minivan. The minivan pulled away from the officer and went through a red light. Officer Kane radioed that he had located the stolen van and advised other officers of the direction it was headed. Several officers subsequently observed the minivan traveling down Harrison Avenue in Boston without headlights and at a high rate of speed. Officers activated their blue lights and sirens in an attempt to stop the minivan, which proceeded through several red lights without slowing or stopping. The minivan finally stopped after it collided with a delivery truck which was double-parked in front of Quinzani's Bakery.
Officers considered the minivan to be traveling in excess of sixty miles per hour, while a civilian witness estimated its speed to be ninety to ninety-five miles per hour. One officer testified that his vehicle "shook" when the minivan passed.
Boston police, fire, emergency medical technicians (EMTs), and paramedics responded to the crash. The defendant was removed from the driver's seat of the minivan and placed in an ambulance with Boston EMT Marni Ring. EMT Ring asked the defendant several questions in an attempt to assess his injuries; the defendant's only response was, "Dude, I'm drunk." Johnny Williams, who was removed from the passenger seat of the minivan, died from injuries he sustained in the crash.
Three bottles of vodka were recovered from the minivan after the crash. One was empty and another was partially consumed. The defendant's blood was drawn at the hospital, revealing a blood alcohol level of .14 percent. An autopsy of Williams revealed the presence of cocaine in his system.
The jury did not hear evidence regarding a "crack pipe" recovered from the minivan after the crash.
The defendant was found guilty of motor vehicle homicide and manslaughter by motor vehicle. At sentencing, the judge dismissed the motor vehicle homicide conviction as duplicative of the manslaughter conviction. The defendant was sentenced on the manslaughter conviction to eighteen to twenty years in State prison.
Discussion. General Laws c. 265, § 13½, inserted by St. 2005, c. 122, § 20, 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(a)(1), prohibits operation of a motor vehicle on a public way with a blood alcohol level of .08 or higher. The defendant argues that his conviction under G. L. c. 265, § 13½, must be vacated because that statute does not cover reckless conduct. However, manslaughter "includes an unlawful homicide unintentionally caused by wanton or reckless conduct." Commonwealth v. Catalina, 407 Mass. 779, 789 (1990), citing Commonwealth v. Welansky, 316 Mass. 383 (1944). "The Commonwealth had the burden to prove that the defendant's conduct was wanton and reckless" before the jury could convict under G. L. c. 265, § 13½, Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 83 (2011); which the jury did. The defendant's contention that the statute does not apply to reckless behavior is without merit. See Liptak, supra; Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 307 (2008).
With respect to the defendant's argument that G. L. c. 265, § 13½, impliedly repealed G. L. c. 90, § 24G(a), because that statute already covered reckless conduct, the provisions of G. L. c. 265, § 13½, "so far as they are the same as those of" G. L. c. 90, § 24G(a), are "construed as a continuation thereof and not as new enactments." G. L. c. 281, § 2. Moreover, G. L. c. 265, § 13½, was inserted by the same bill amending, but not repealing, G. L. c. 90, § 24G. St. 2005, c. 122, §§ 16, 20. "[R]ather than speculate about legislative intent impliedly to repeal a statute, we prefer to give meaning to both enactments." Commonwealth v. Hayes, 372 Mass. 505, 512 (1977).
At trial, defense counsel requested a lesser-included offense instruction on operating under the influence of intoxicating liquor. See G. L. c. 90, § 24(1)(a)(1). The judge declined to give the instruction "on the facts of this case." There was no error.
"The test for deciding when an instruction on a lesser included offense should be given to the jury is whether the evidence at trial presents 'a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.'" Commonwealth v. Donlan, 436 Mass. 329, 335 (2002), quoting from Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692 (1998). "If the evidence is sufficiently disputed at trial so that the jury may rationally find the defendant not guilty of the greater and guilty of the lesser offense, the judge should give the lesser included offense instruction." Ibid. Here, where there was no dispute that Williams died as a result of injuries sustained in the crash, the jury would have no rational basis for convicting the defendant of operating under the influence of intoxicating liquor but not manslaughter by motor vehicle.
Finally, we discern no error in the prosecutor's closing argument. The prosecutor stated that "Johnny Williams was the fallout" directly in response to defense counsel's closing question to the jury: "Where was the fallout from the operations [sic] that's being described by the police officer?" The record does not support the defendant's assertion that Williams's picture was displayed for the entirety of the prosecutor's closing, and "[t]he argument in its entirety was a well-reasoned discussion of the questions raised by the defense and a methodical marshaling of all the evidence in support of the Commonwealth's case." Commonwealth v. Guy, 454 Mass. 440, 445 (2009).
The transcript shows that other exhibits were displayed as the prosecutor argued the evidence.
Judgment affirmed.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 23, 2015.