Ma Appellate Courts 1.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ISSUES PRESENTED

.....................................

1

................................

1

...................................

4

STATEMENT OF THE CASE STATEMENT OF FACTS 1. 11.

111. IV.

V.

I.

......................

4

.........................

9

THE COMMONWEALTH'S CASE THE DEFENDANT'S CASE

THE COMMONWEALTH'S REBUTTAL

. . . . . . . . . . . . . . . . . 10

THE PROSECUTOR'S CLOSING ARGUMENT THE POST-COWICTION PROCEEDINGS

ARGUMENT

. . . . . . . . . . . 11

. . . . . . . . . . . . . 14

............................................

THE DEFENDANT IS NOT ENTITLED TO DISMISSAL OF THE VEHICULAR HOMICIDE COMPLAINT ON DOUBLE JEOPARDY GROUNDS BECAUSE THE EVIDENCE AT TRIAL IN THE LIGHT MOST FAVORABLE TO THE COMMONWEALTH SUFFICED TO PROVE THAT HE NEGLTGENTLY OPERATED A MOTOR VEHICLE AND THEREBY CAUSED THE VICTIM'S DEATH. . A.

iii

16

. 16

The Commonwealth's Evidence Was Sufficient To Prove That The Was consciously Defendant Operating The Cruiser At The Time Of The Crash. . . . . . . . . . . . . . . . . . . . . . . . . . .

19

Evidence of the Operation of the Cruiser. . . . . . . . . . . . . . . . . . . . . . .

21

1.

2.

The

Blood

Airbag 3.

&

Saliva

on

the

............................

25

The Medical Evidence . . . . . . . . . . . . . . 2 8

ii

B.

11.

Neither The Testimony Of Defense Witness . Nor Acknowledgements O€ Its Witnesses Caused Commonwealth's Case Deteriorate. . . . . . . : . . . . . . . . . .

The The OWn The To

....

29

THE DEFENDANT'S CLAIM OF PROSECUTORIAL MISCONDUCT IS DEFEATED BY THE TRIAL JUDGE'S F I N D I N G S THAT THE PROSECUTOR DID NOT DELIBERATELY MAKE IMPROPER ARGUMENTS OR AVOID INQUIRIES THAT MIGHT HAVE REVEALED EXCULPATORY EVIDENCE, AND SUCH MISCONDUCT WOULD NOT JUSTIFY

DISMISSAL EVEN IF IT HAD OCCURRED. CONCLUSION ADDENDUM

. . . . . . . . . . 32

..........................................

31

............................................

38

...............................

41

SUPPLEMENTAL APPENDIX

iii

TABLE OF AUTHORITIES Cases

v. C o m m o n w e a l t h ,

Aucella

Mass. 4 1 5

.....................................

(1990)

Berry

406

v. C o m m o n w e a l t h ,

393

Mass.

24,

2.5

793

(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31

C o m m o n w e a l t h v. A n d e r s o n , 4 1 1 Mass. 2 7 9 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

34

Commonwealth

A r i a s , 2 9 Mass. App. aff‘d, 4 1 0 Mass.

v.

Ct. 613 (1990), 1005 (1991)

................................

16,

C o m m o n w e a l t h v. B e a l , 4 2 9 Mass. 5 3 0 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c o m m o n w e a l t h v. 1015 ( 2 0 0 6 )

Cartwxight,

447

34

Mass.

....................................

30

C o m m o n w e a l t h v. C h o n q a r l i d e s , 6 2 Mass. App. Ct. 709 (2004), review d e n i e d , 4 4 3 Mass. 1 1 0 5 (2005) . . . . . . . . . . . . . . . . . . C o m m o n w e a l t h v. C i n e l l i , 389 Mass. 1 9 7 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commonwealth

v. C r o u s e , 447 Mass.

31

.. 3 3

558

..29

..............................

(2006)

23

C o m m o n w e a l t h v. D r u m g o l d , 4 2 3 Mass. 2 3 0 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

C o m m o n w e a l t h v . F i s h e r , 4 3 3 Mass. 340 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Commonwealth 402

v.

(1978)

Fitzgerald,

376

Mass.

.................................

24,

30

C o m m o n w e a l t h v. G r a n d i s o n , 433 Mass. 135 ( 2 0 0 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 2 1 , 2 3 , 2 6 Cornionwealth (2000)

v. Jackson, 4 3 2

Mass. 8 2

.........................................

C o m m o n w e a l t h v . James, 4 2 4 Mass. I70 (1997) .....................................

23

18, 22

C o m m o n w e a l t h v. Lam Hue To, 3 9 1 Mass. 301 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

.......

iv

ass. 671 ................................. 16, 1 8 , Commonwealth v. Levesque, 4 3 6 Mass. 4 4 3 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commonwealth v. Latimore, 378 (1979)

Commonwealth v. (1589)

Lewin,

405

Mass.

22 27

566

.....................................

33,

36

Commonwealth v . Lydon, 4 1 3 Mass. 3 0 9 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

~7

Commonwealth v . Manning, 373 Mass. 438 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36

Commonwealth v. McInerney, 373 Mass. 1 3 6 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31

Commonwealth v. Merola, (1989)

405

Mass.

529

.........................................

Commonwealth v. 'Phillips, 413 Mass. 50 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commonwealth

v.

Pike,

430

Mass.

Commonwealth

v.

Rice,

427

Mass.

v . Sparks, 433 Mass.

Commonwealth v. Sturtivant, 1 2 2 (1875)

v.

Urrea,

443

Mass.

Commonwealth (1850)

v.

Webster,

5

Cush.

29

530

.....................................

(2005)

26

457

.........................................

Commonwealth

35

Mass.

.....................................

v. Tucker, 1.89 Mass.

Commonwealth (1905)

117

26

654

.........................................

(200Z)

23

203

(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commonwealth

35

317

.........................................

(2006)

17

23,

31

295

.........................................

17

Cornonwealth v. Williams, 450 Mass. 8 7 9

.........................................

(2008)

v.

Ellingsgard (1967)

Hartfield

Silver,

352

Mass.

34

.........................................

v.

Commonwealth,

1022 ( 2 0 0 5 )

443

~2

15

Mass.

........................

16,

21,

22,

30

Kater

Commoriwealth,

v.

Koonce

v.

Commonwealth,

(1992)

Mcovern

Mass.

421

17

...............................

(1995)

v.

Mass.

412

71

................................. Tinqlof,

344

Mass.

. . . . 20 passim

114

. . . . 28 ..................................... Kennedy, 456 U.S. 667 (1982) . . . . . . . . _ .... . 35

(1962)

Oregon v ,

U n i t e d S t a t e s v . Systems Architects, Xnc., 7 5 7 F.2d (1st Cir.), C b r t . d e n i e d , 4 7 4 U . S . 8 4 7 (1985) _ . . . . . . . . . . . . .

_ .. . .17

Statutes

G.L. c . 211, G.L.

C. 9 0 ,

................................. 5 24G(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . §

3

1, 16 2 , 19

Rules

Mass. R. Crim. P. 25Ib) ( 2 )

. . . . . . . . . . . . . . . . . . .. . . .3 ,

Mass. R . Prof. Conduct 3 . 8 ( j ) . . . . . . . . . . . . . . . . . . . . . . .

33

33

ISSUES.- P.. .R E S E N T S

Whether the defendant is entitled to dismissal of

T. a

vehicular

homicide

complaint

on

double

jeopardy

grounds where the evidence at trial in the light most favorable to the Commonwealth sufficed to prove that he negligently operated a motor vehicle and thereby caused the victim's death. 11.

Whether the defendant's claim of prosecutorial

misconduct is defeated by the trial judge's findings that the prosecutor did not deliberately make improper arguments or avoid inquiries that might have revealed exculpatory

evidence, and

such

whether

misconduct,

even i f it had occurred, would justify dismissal. STATEMENT OF THE CASE

This case is before this Court on a report of a single justice of this Court (Cordy, J.) of a petition by

the

defendant, Stuart

Merry,

relief pursuant to G.L. c . 211,

§

3.

for

extraordinary

2

On October 2 2 , 2 0 0 ' 1 , the defendant was charged by

complaint in the Peabody District Court with vehicular homicide, (C.A.

in

violation

of

G.L.

c.

90,

§

24G(b)

1).1.2

In the early stages of the case, the District Attorney for the Eastern District, citing a potential conflict of interest, transferred the prosecution of this case to the District Attorney for the Suffolk District. Assistant

On December 10, 2 0 0 7 , District

Attorney

a Suffolk County

appeared

as

prosecutor for the Commonwealth (C.A. 5 ) .

a

special

That same

day, the Commonwealth filed a motion to amend the complaint to charge vehicular homicide by negligent .-

"C.A.'I herein refers to the Commonwealth's supplemental appendix, below at 41. " D . Br . I' refers to the defendant's brief, D.Add." refers to his addendum, and llR.A.lv refers to his record appendix. "Tr. [voL]: I ' refers to the trial transcript, and "T.Exh." refers to the trial exhibits. The side bar discussions at trial, which were transcribed separately, are cited herein as they appear in the "SJ Tr." defendant's addendum and record appendix. refers to the transcript of the hearing before the single justice Gf this Court on July 15, 2008, which the defendant has moved to make part of the record. 2

The defendant was also charged with unlicensed operation of a motor vehicle, but that charge was ultimately dismissed (C.A. 1, 3). The complaint a l s o Listed two civil traffic violations, for which the defendant was found responsible, but those violations were simply filed with the defendantls consent and are not at issue on this appeal (C.A. 1, 3-41.

3

operation rather than reckless operation ( C . A . 5, 1112), which was allowed (C.A. 5).

From March

17 to

20,

2008, the

defendant was

tried by a jury in Peabody District Court before the

Honorable Robert A. Brennan ( C . A .

8-9).

the close

At

of the Commonwealth's case-in-chief and again at the close of all the evidence, the defendant moved €or a required finding of not guilty, which was denied on

both

occasions

(C.A. 8 ;

D.Add.

After

3-26).

the

summations, the defendant moved for a mistrial based on the prosecutor's argument, which was also denied

On March 20, the jury convicted the

( R . A . 1114-15).

defendant of vehicular homicide ( C . A . 8-9). On March 2 7 ,

2008, the defendant filed a post-

verdict motion for a required finding of not guilty or a new trial under Mass. R. Crim. P. 25(b) (2) (C.A. On April

9).

7, the trial judge conducted a hearing on

this motion (C.A. 9-10).

On

May 6, the judge granted

the defendant a new trial based on the Commonwealth's inadvertent failure to disclose an exculpatory opinion by

its

crash

R.A. 1163-68;

reconstruction C.A.

defendant's motion

10)

for a

but

(D.Add. 30-35;

expert again

required

denied

finding

guilty [D.Add. 35-36; R . A . 1168-69; C.A. 10).

the

of not

On May 22, 2008, the de€endant filed the instant petition for extraordinary relief, in which he sought

to have the complaint dismissed on grounds o€ double jeopardy 0223;

and

prosecutorial

R.A. 1-1255) . 3

justice

of

this

On

Court

misconduct June

15,

(No. SJ-2008-

2008,

(Cordy, J.)

a

single

reserved

and

reported the petition to the full Court (R.A. 1279). STATEMENT OF FACTS

The Commonwealth's Case

I.

the

morning

of

de€endant, a

Beverly

Police

On

January

20,

Officer,

2007,

the

crashed

his

marked police cruiser into a parked car occupied by Bonnie B u r n s , killing Burns (Tr. 2 : 6 )

By all accounts, the defendant showed no signs of physical or emotional problems on the morning of the crash (Tr. 1:183-85, 241-43, 257-58, 267-68).

He had

no history of fainting or blacking out (Tr. 1 : 2 7 9 ) . Shortly before

9:20

a.m., the defendant stopped

at a Seven Eleven store and bought an orange fountain

drink, which he placed in a cup holder i n his cruiser -1

Although the defendant never formally moved for dismissal in the trial court, the parties agree that remanding the case to the trial. court for this purpose would be a waste of time and resources, as the trial judge's rulings on the defendant's Rule 25 motion make it clear that he would also have denied a motion to dismiss (see D.Add. 3 5 - 3 6 ; R < A . 1168-69).

(Tr. 1 : 2 7 7 ) . began

He then left the store’s parking lot and

driving

a

up

He

(TL-.1 : 2 7 7 - 2 8 ) .

slight

hill

purportedly

on

Cabot

does

not

Street

remember

anything further leading up to the crash (Tr. 1:278). The posted speed limit on Cabot Street in the area

of

the

crash

Commonwealth‘s crash Police

Sergeant

is

30

mph

(Tr. 2:15).

reconstruction

Deborah Ryan,

expert,

determined

The State

that

the

defendant’s cruiser was traveling about 52 rnph at the time of module

the

crash

(“PCM”)

--

an onboard computer that monitors

the cruiser’s engine the

defendant

accelerator

for

The power control

(Tr. 2:35).

(Tr. 2:35-38)

was 11.4

essentially seconds

--

revealed that

“flooring“

before

the

the crash

(Tr. 2 ~ 4 2 ,67) : the accelerator was depressed between 83% and 98%

(Tr. 2:42), and the engine throttle was

open 100% (Tr. 2 ~ 4 2 - 4 4 ) . The brake pedal light was on between 11.4 and 8.0 seconds before the crash, but there was no evidence of braking during the eight seconds (Tr. 2 : 4 7 - 4 9 ,

57-58).

final

There was also no

evidence of any mechanical problems with the cruiser that might have contributed to the crash (Tr. 2 : 2 G - 2 7 , 61).

In Sergeant Ryan’s opinion, the cruiser had

failed to negotiate a right curve on Cabot Street: and traveled straight into the victim’s car (Tr. 2:69-70).

Heather Swan, a resident of the neighborhood, saw the defendant's cruiser traveling fast up Uabot Street

in the right lane

( T r . 1:59).

The cruiser then "made

a quick turn to the left,''as if the driver was trying

to avoid something, and crashed into the victim's car

(Tr. 1:59-61).

Another eyewitness, Amy Munoz, also

saw the cruiser "turn very quickly" just before it hit

the victim's car ( T r . 1:87-89). A

third eyewitness, Frederick Kelsey, was walking

on Cabot Street with his four-year-old son when he heard a car accelerating behind him

(Tr. 1:111-12).

He turned and s a w the defendant's cruiser accelerating past him

(Tr. L:113).

There d i d not appear to be

anyone sitting behind the wheel (Tr. 1:114-15, 132). According to Kelsey, the cruiser failed to negotiate a right curve on the road and drove straight into the victim's c a r ( T r . 1:135-16, 127). MunOZ and Kelsey approached the cruiser after the

crash and found the defendant slumped over with his legs still under steering wheel but his torso lying across the passenger's seat (Tr. 1:93, 152).

He was

unconscious and moaning, and his breathing was labored

(Tr. 1:94,

123-24,

152).

Beverly P o l i c e Officer David Faustino arrived at t h e scene moments later ( T r . 1:165-68).

He found the

defendant lying across the front passenger seat o f the cruiser (Tr. 1:169).

He said, "Stu, are you okay?",

but the defendant did not answer

(Tr. 1:170).

The

defendant was having trouble breathing, had a bloody nose, and had blood and saliva corning out of his mouth

(Tr. 1:170-71, to

appeared

179).

be

His

eyes

"staring

were

right

open, but

through"

Officer

(Tr. 1:170-71).

Faustino without recognizing him

he

As

time passed, the defendant's breathing worsened and he began to turn blue (Tr. 1:174-75). Several other officers arrived (Tr. 1:187, 203-04, 223)

I

soon thereafter

In addition to making many

of the same observations as Officer Faustino, Officer Stephen Collins noticed that the defendant had cuts on his face and a swollen eye

(Tr. 1:192).

Sergeant

Joseph Shairs noticed that the defendant was "rolling around

a

bit,

trying

to

reposition

himself"

(Tr. 1:208), but he did not notice any blood or saliva coming

from

the

defendant's

mouth

(Tr. 1:214).

Several officers tried to speak to the defendant, but he did not seem to understand (Tr. 1:216-17, 233). While

the

defendant

was

still

lying

on

the

passenger's seat, Officer Michael, Cassola entered the passenger side of the cruiser and placed an oxygen

mask

on

the defendant's face

(Tr. 1 : 2 2 7 - 2 8 ) .

The

8

blowing oxygen seemed to irritate the defendant, who began to move arouiid and try to push the mask away (Tr. 1:228,

229, 230).

Officer Cassola had to keep

“chasing him around with the oxygen because he kept moving and pushing my hands” (Tr,1 : 2 3 0 ) .

During this

struggle, the defendant’s “body was . . . still over the passenger’s seat”

(Tr. 1:230).

when

the mask

was

finally secured, the defendant was in a “half-seated upright position leaned over” (Tr. 1:230).4

With the

oxygen mask on, the defendant soon regained his normal color (Tr. 1:210). Medical

personnel

arrived,

soon

placed

the

defendant on a backboard, and removed him from the cruiser via

the driver’s door

(Tr. 1:195,

230-31).

The defendant was then transported by ambulance to a hospital (Tr. 1:196) The defendant‘s medical

suffered

a

concussion

R.A. 1215, 1217, 1219).

head

in A CT

records reveal that he the

crash

(T.Exh. 21;

scan of the defendant’s

conducted shortly after the crash revealed no

abnormalities (R.A. 1245).

Sergeant Ryan examined the

defendant’s medical records pursuant to her investiga-

-

Sergeant Shairs’s recollection was that he and Officer Cassola lifted the de€endant to a sitting position in the driver’s seat prior to putting t h e oxygen mask on his face (Tr. 1:209).

tion and found nothing in them that would explain the crash ( T r .

90).

2:60,

Photographs in evidence showed red spots on the driver's airbag of the defendant's cruiser (T.Exh. 2 ) and

damage

to

(T.Exh. 5).

the State

A

revealed

(T.Exh. 24)

cruiser's Police

that

front

in

report

the

windshield

airbag

evidence

had

tested

positive for human blood and saliva.

II.

T h e Defendant's

defendant's

The

crash

Case

reconstruction

expert,

Gerard Murphy, opined based on the force o f the crash and the position in which the defendant had fallen in the cruiser that the defendant was not sitting up at the

time

of

the

crash

examination, however,

he

(Tr. 2:122). acknowledged

On that

crossit

was

possible that the defendant had simply f a l l e n over after the crash (Tr. 2 : 1 3 5 ) .

Dr. James R. Lehrich, a neurologist, opined that the only plausible explanation for the circumstances of the crash

the

- - particularly the total depression of

accelerator,

the

defendant's

failure .to take

evasive action, and Kelsey's observation of no one behind

the

was

wheel

that

the

defendant

had

suffered a "tonic seizure," causing his body to go

rigid

while

he

lost

consciousness

(Tr. 2 : 1 5 0 - 5 3 ) .

10

This "tonic phase" of the seizure would be followed by a

"clonic phase,"

collapse

and

during

possibly

which

thrash

the

his

victim

arms

would

and

legs

Finally, the patient would enter the

( T r . 2:153).

"postictal"

phase,

during

which

he

would

sleepy, confused, and possibly combative

appear

(Tr. 2:153-

Other symptoms of a seizure may include blueness

54).

and drooling ( T r . 2:154). On

acknowledged

cross-examination, Dr. Lehrich

that the defendant's post-crash CT scan was normal

(Tr. 2:161), but he claimed that this result did not rule

out

seizure

a

acknowledged that

He

(Tr. 2 : 1 6 9 - 7 0 ) .

the defendant

had

also

no history

or

family history of seizures (Tr. 2:170), that he could not

explain why

(Tr. 2 : 1 7 0 ) , crash

the

defendant

had

had

a

seizure

and that most of the defendant's post-

symptoms

concussion a6 well

could

have

been

caused

by

his

(Tr. 2:176-77).

IIX. The Commonwealth's Rebuttal

In rebuttal, the Commonwealth called Dr. Daniel ~och, a

neurologist.

Dr.

Hoch

had

examined

the

defendant I s medical records and found nothing that was unique to a seizure (Tr. 3:30-31).

He acknowledged,

however, that in about 30-50% of cases, no medical reason for a seizure can be found

(Tr. 3 : 2 7 ) .

On

,

cross-examination, he could

not

rule that

(Tr. 3:64), medical

out the

further the

of

possibility

seizure theory was

(Tr. 3:64),

theory"

acknowledged

and

that

that

a

he

seizure

"a viable a

person

suffering a seizure might depress a car's accelerator for as long as twenty seconds during the tonic phase

of the seizure (Tr. IV.

The

3:70).

Prosecutor's Closing Argument

During his closing argument, the prosecutor cited three pieces of evidence that, considered together, indicated that the defendant was not having a seizure at the time of the crash (Tr. 3:107-12).

The first of

these was the "spidered" windshield of the defendant's cruiser, as depicted in the photograph in evidence (T.Exh. 5 ) records

and described in the defendant's medical

(T.Exh 21; R.A. 1216, 1220)

(Tr. 3:107-08).

The prosecutor argued that this damage had been caused by

the

defendant's

(Tr. 3:108).

He

head

hitting

the

acknowledged, however,

windshield that

the

evidence was "not conclusive," as the damage "could have been [caused by1 anything" (Tr. 3:108). Second, the

prosecutor

pointed

spots on the driver's airbag

out

the

blood

(Tr. 3:108-11, citing

‘I. 2

T.Exhs. 2

&

24).

Citing medical evidence that the

defendant had suffered cuts to his face and a “raccoon eye“ (T.Exh. 21; R . A . 1 2 1 6 ; Tr. 1:192), the prosecutor argued that the defendant had left these spots when his

face

struck

the

(Tr. 3:109, 100-11).

airbag

during

the

crash

Again, however, he acknowledged

that this evidence was not conclusive, as “ b l o o d could have gone all over the place” (Tr. 3:lll). The third piece of evidence was the saliva found

on t h e airbag (Tr. 3:lll).

The prosecutor argued:

Saliva comes from one place, your mouth. The only way that saliva got on the airbag is if Stuart Merry, h i s face, hit that airbag at the time of the crash. The prosecutor acknowledged that

(Tr. 3:111).

the

defendant had been seen drooling after the crash, but he argued that the oxygen mask would have prevented saliva from getting on the airbag when the defendant was

raised

a

to

sitting

position

and

ultimately

removed €rom the cruiser (Tr. 3:111-12). Later in his argument, the prosecutor argued that Kelsey’s testimony that he had seen no one behind the -

.~

5 The trial judge initially sustained a defense objection to this argument on the grounds t h a t there was no evidence that the spots were the defendant‘s upon reviewing the blood (Tr. 3:109; R.A. 1110). State Police report (T.Exh. 2 4 1 , however, the judge reversed his ruling (Tr. 3:110; R.A. 1110).

-1. 3

wheel of the cruiser as it passed him (Tr. 1:114-15), if

accurate, actually

bolstered

the

Commonwealth's

theory of the case: The second possible conclusion is that [Kelseyl I s right: when the car went whizzing past him at 50 miles an hour, Stuart Merry was not sitting up. But remember, that car goes another 20 or 30 feet, and because of the physical evidence that you have to review, we know Stuart Merry sat up after that point. And, members of the jury, a person having a seizure does not sit up. (Tr. 3:114-15). The defendant objected to prosecutor's arguments

about the windshield and the blood on the airbag on the grounds that the prosecutor had never asked any witness about this evidence overruled

this

objection

(R.A.

on

the

1109).&

grounds

The judge that

the

prosecutor's arguments were nonetheless supported by reasonable inferences from exhibits that the defendant knew to be in evidence (R.A. 1110). The defendant argued in support of his subsequent motion for a mistrial that the prosecutor's arguments based on the damage to the windshield and the blood and

saliva

on

the

airbag

amounted

(D.Add. 27-28; R.A. 1114-15). -

to

l1testimony"

The judge denied the

-

h

Contrary to his assertions (D.Br. 2-3, 16), the defendant never objected to the prosecutor's argument that "a person having a seizure does not sit up" (Tr. 3:125).

14

motion on the grounds that he had instructed the jury that arguments are not evidence, and that the jury

would have realized in any event that the prosecutor was arguing, not testifying (D.Add. 2 8 ; R.A. 1115). The Post-Conviction Proceedings

V.

In response to the defendant's Rule 25 motion, the Commonwealth investigated the pretrial conversations between Sergeant Ryan and the prosecutors (see R.A.

This

392-94).

Sergeant Ryan

had

investigation

told

the

revealed

original

Essex

that County

prosecutor that she believed that the damage to the cruiser's

had

windshield

defendant's

head

information was

not

striking not

been

it

caused

by

This

( R . A . 994).

relayed to the

the

Suffolk County

prosecutor when the case was transferred ( K . A . 9 9 4 ) . The

investigation

further

Suffolk County prosecutor had pretrial

conversation

with

revealed only

one

Sergeant

cent-ered on the PCM evidence (K.A. 993).

that

the

substantive Ryan,

which

Near the mid

o f this conversation, the prosecutor mentioned that he

believed that the damage to the windshield and the blood on the airbag were the best evidence that the defendant had not had a seizure (R.A. 993). Ryan responded, "I think the blood

Sergeant

is your better

15

argument“ ( R . A . 993).

They did not discuss the matter

further (R.A. 993). The trial judge ruled that the jury’s ignorance

of the fact that Sergeant Ryan would have contradicted the trial prosecutor’s argument about the cause of the damage to the windshield cast doubt on the fairness of the

verdict,

thus

and

a

warranted

(D.Add. 30-35; R.A. 1163-68).

new

trial

Nevertheless, he found

that this was “not a case where the omission of this

by

information intentional”

(R.A.

prosecutors

(D.Add. 31;

had

prosecutor evidence

the

that

1145-46).

R.A. 1164),

intentionally might

be

was

knowing

or

where

the

or

avoided

unfavorable

to

eliciting

his

case

He further stated that he appreciated

the difficulties created by the conflict of interest, which prevented the trial prosecutor from discussing the case with his predecessor 1165-66),

that

the

trial

arguments about the windshield

(D.Add. 3 2 - 3 3 ; prosecutor’s and

R.A.

closing

the airbag were

‘‘fairand reasonable“ in light of what was known about the evidence at: the time (D.Add. 35; R . A . 1168). arid that, “based on

[his] observations of everybody in

this case, [the trial] was conducted in an above-board

.. . (R.A.

manner 1209).

that

was

professional

on

both

sides“

16 ARGUMENT I.

THE DEFENDANT IS NOT ENTITLED TO DISMISSAL OF THE VEHICULAR HOMICIDE COMPLAINT ON DOUBLE JEOPARDY GROUNDS BECAUSE THE EVIDENCE AT TRIAL IN THE LIGHT MOST FAVORABLE TO THE COMMONWEALTH SUFFICED TO PROVE THAT HE NEGLIGENTLY OPERATED A MOTOR VEHICLE AND THEREBY CAUSED THE VICTIMIS DEATH.

There is no merit to t h e defendant's claim that he is entitled to dismissal of the complaint on double

jeopardy grounds because the evidence at his first trial. was

insufficient to prove his guilt beyond a

reasonable doubt (D.Br. 22-44).7

A

court assessing the

sufficiency of the evidence in a criminal trial must review the evidence in the light most favorable to the commonwealth, with all reasonable inferences resolved in

the

Commonwealth's

Grandison, 433 Mass.

Commonwealth

favor.

135, 140 ( 2 0 0 1 ) ;

v.

Cornonwealth v.

Latimore, 3 7 8 Mass. 671, 677 (1979). The j u r y is free

to d r a w any inferences from the evidence that are reasonable and possible; the inferences need not be necessary or inescapable.

Grandison,

433

Mass. at

141; Commonwealth v. Arias, 29 Mass. ~ p p .Ct. 613, 618

(1990), aff'd, 410 Mass. 1005 (1991).

that

conflicting

inferences arc

"To the extent

possible

from

the

evidence, it is for- the jury to determine where the .7

The Commonwealth does not dispute that a double jeopardy claim is an appropriate matter for resolution pursuant to G.L. c. 211, § 3 . See Hartfield v. Commonwealth, 443 Mass. 1022, 1022 n.l (2005).

I

17

truth lies."

Koonce v. Commonwealth, 412 Mass. 71, 75

(internal quotation

(1992)

v.

Commonwealth

Fisher,

433

marks

omitted) ;

Mass. 340,

343

accord (2001).

"'The relevant question is whether the evidence would permit a j u r y to find guilt, not whether the evidence requires such a finding.'" 43

Fisher,

433 Mass. at 342-

(quoting Commonwealth v. L y d o n , 413 Mass. 309, 312 The Commonwealth "'need not exclude every

(1992)).

reasonable record

as

hypothesis

a whole

of

innocence,

beyond a reasonable doubt. ' '! 405 Mass. 5 2 9 ,

Systems

Cir.)

,

533

Xnc.,

guilt

Commonwealth v . Merola,

(1989) (quoting U n i t e d

Architects,

757

F.2d

373,

cert. d e n i e d , 4 7 4 U.S. 847 (1985))

The

States v. 377

(1st

.

defendant's reliance on the definition o f

proof beyond

reasonable doubt

Webster, 5 Cush. 295, 319 32),

conclusion of

supports a

the

provided

from

(1850)

Commonwealth

v.

(cited at D.Br. 2 4 ,

is misplaced, as that definition refers to the

degree o € certainty that the j u r y must reach in order

to convict

the defendant.

whether the

evidence

is

The

standard governing

sufficient to withstand

a

motion for a required finding of not guilty is more lenient.

Compare id.

( j u r y may not find defendant

guilty unless evidence at trial "exclude[sl any other reasonable hypothesis") w i t h Merola, 405 Mass. at 533

18

(case may be submitted to jury even if the evidence does

“not

exclude

every

reasonable

hypothesis

of

The reason for this distinction is that

innocence”).

the jury is the arbiter of credibility, and thus may find evidence that seems plausible on the record to be incredible

based

on

factors

to’ an

unavailable

appellate court, such as a witness‘s demeanor.

Under

the proper standard, the evidence at the defendant’s first trial amply sufficed to support: his conviction for vehicular homicide. Despite

giving

lip

to

service

Latimore

the

standard (D.Br. 22-23), the defendant effectively asks this Court to serve as a second jury, considering the weight and credibility of the evidence rather than its sufficiency

in

commonwealth. 770, 7 8 4 - 8 5

the

light

most

favorable

CI. Commonwealth v. James,

to

424

the

Mass.

(1997) (as reliability and credibility are

matters for the jury to resolve, even equivocal or contradictory evidence must be viewed

most favorable to the commonwealth).

in the light

As shown bel.ow,

none of the defendant‘s assertions establish that the evidence in the light most favorable to the Commonwealth was insufficient to prove his guilt.

19

A.

Commonwealth's

The

Evidence

Was

Sufficient

TO prove That T h e Defendant Was Consciously Operating The Cruiser A t T h e Time Of T h e

Crash.

The

four

elements

of

vehicular

(1) operation of a motor vehicle; way;

( 3 ) negligently

(4) thereby c.

90, 5

are:

(2) upon a public

so as to endanger human life; and

causing the death of

24G(b).

homicide

a person.

G.L.

Here, only two of these elements

contested at trial: operation and negligence.a

were

The evidence at trial sufficed to prove both of these 'elements beyond a reasonable doubt. The Commonwealth agrees that the defendant could not have negligently operated his cruiser unless he intentionally set in motion the forces that caused the crash

--

i.e., unless he was not having a debilitating

seizure at the time ( s e e D.Br, 29-32).' the

evidence at

reasonable

doubt

Nonetheless,

trial sufficed to prove that

the

defendant

beyond was

a

fully

8

The parties stipulated at trial that Cabot Street is a public way, and that the crash caused the victim's death ( T r . 2 : 6 - 7 ; D.Br. 3 0 ) . 9

The defendant could not be guilty under the alternative theory that he negliyently chose to drive despite being at risk for seizures, see Ellingsqard v. Silver, 352 Mass. 34, 3 8 - 3 9 ( 1 9 6 ' 7 ) , as he had no history of seizures or knowledge of any medical condition that might cause a seizure.

Leading up

conscious in the moments This evidence

included:

(1)

that

to

the crash.

the defendant was

pressing the accelerator for 11.4 seconds prior to the crash (Tr. 2 : 4 2 - 4 4 ) ; brake

pedal

for

(Tr. 2:47-48); cruiser

turn

the

(3)

to

that he was also pressing the

(2)

first

that

the

two

left

of

3.4

these

eyewitnesses just

before

seconds saw

the

the crash

(Tr. l:S9, 60-61, 87-89); (4) that there was blood and

saliva

on

the

(T.Exh. 24);

and

driver's

airbag

(5) that

the

of

cruiser

the

defendant's

medical

records contain no evidence of a seizure or any other medical explanation for the

crash

(Tr. 2:60,

90)

.lo

Considered as a whole in the light most favorable to the

Commonwealth, this

beyond

a

reasonable

evidence

doubt

that

sufficed the

to

prove

defendant

was

consciously but negligently operating his cruiser at the time of the c r a s h .

Technically, this Court may a l s o consider the damage to the cruiser's windshield (see T.Exh. 5 1 , as a court addressing the 'sufficiency of the evidence must consider all of the evidence admitted at trial, n o t just the evidence that was properly admitted. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995). The Commonwealth does not press this point, however, as the damage to the windshield is neither crucial to the sufficiency of the evidence at the first trial nor likely to be relied on at the second trial.. la

21 Evidence Cruiser.

1.

One

compelling

the

of

of

item

Operation

evidence

of

the

that

the

defendant was consciously operating his cruiser at the time of the crash was the PCM evidence, which showed that both the brake pedal and the accelerator of the cruiser were activated in the seconds before the crash (Tr. 2:42).

Based on their common experience, the

jurors could draw an eminently reasonable inference from this evidence that the defendant was consciously pressing these pedals with his feet. 433

Mass. at 141; A r i a s ,

Although

the

jurors

29 Mass. App.

were

also

alternative inference

--

pressed

involuntarily

the

pedals

See Grandison, Ct. at 618.

presented

an

with

that the defendant might have during

the

rigid

”tonic phase” of a seizure (see Tr. 2 : 1 4 6 ,

151-53)

they

inference,

were

not

required

to

accept

that

--

especially where it was undermined by other evidence (see S § 2 - 3 , Mass. 1 0 2 2 ,

infra).

Hartfield v. Commonwealth,

443

1022-23 (2005); Kooncc, 4 1 2 Mass. at 75.

Thus, the PCM evidence alone was st-rong evidence of the defendant’s guilt. The defendant tries to attack the weight of the PCM

evidence by

arguing that

“it. defies logic” to

suggest that he was conscious but inattentive for the entire 11.4 seconds that the accelerator was “floored”

22

(D.Br. 3 4 ) . "

This attack, however, is both irrelevant

to the sufficiency of the evidence, see J a m e s , Mass.

at

784-85; Latimore, 378

unfounded.

Mass. at

677,

424

and

In making it, the defendant ignores two

crucial facts: (1) that he was also pressing the brake pedal during the first 3.4 seconds (Tr. 2:48-49); and (2)

that additional time passed before he reached an

unreasonable

speed

Hence, only a

few

and

crossed

seconds of

the

center

line.12

inattentiveness were

needed to cause the crash. Furthes evidence sciously

operating

that

his

the

defendant

cruiser was

the

was

con-

eyewitness

testimony o f Heather Swan and Amy Munoz, both of whom saw

the

cruiser

make

a

quick

turn

to

the

left

11

The defendant a l s o cites in a footnote his former partner's testimony that he was a slow and careful driver (D.Br.34 n.13, citing Tr. 2 : 2 7 1 - 7 2 1 , but the jury did not have to believe that testimony, see H a r t f i e l d . 443 Mass. at 1 0 2 2 , and c o u l d not properly have considered it as evidence of the defendant's driving habits in any event, see Commonwealth v. W i l l i a m s , 450 Mass. 879, 8 8 6 ( Z O O S ) . 12

A diagram in evidence showed that the cruiser,

even if it traveled in a straight line, would not have crossed the center line until shortly before the crash (T,Exh.2 8 ) , and Swan testi€ied that the cruiser remained in the right lane until immediately before the crash (Tr. 1:59). Swan and Munoz also testified that the cruiser was not obviously speeding or traveling remarkably faster than ordinary traffic on the street when they first noticed it ( T r . 1:59, 8 6 ) .

..

. .... ....

-_

.

23

immediately before

the

crash

(Tr. 1:59-61,

87-89).

The jury could reasonably infer from t h i s

evidence

that the defendant had consciously turned the steering wheel of the cruiser. Arias, 2 9

Mass. App.

Grandison, 433 Mass. at

141;

at 618.

Ct.

Again, the defendant resorts to attacking

the

weight of this direct evidence, arguing that it was contradicted by

(Tr. 1:115-16) (Tr. 2 : 5 2 - 5 3 , tion

the and

57,

the

80,

v.

Pike,

not

testimony

testimony. 546-47

is

sufficiency.

323-34

(2006);

This is true even where

contradicted

by

scientific

See Commonwealth v . Urrea, 4 4 3 Mass. 530,

(prosecutor properly

(2005)

rTdisregardthe expert testimony

was

Ryan

Contradic-

affect

Mass. 3 1 7 ,

430

Kelsey

Sergeant

(D.Br. 3 7 - 3 8 ) .

88)

James, 424 Mass. at 784-85. eyewitness

Frederick

of

findings

alone, however, does

Commonwealth

of

testimony

debilitated

by

alcohol1

asked

jury

to

[that t h e defendant

and

instead

rely

on

eyewitness observations of the defendant's words and acts to determine his ability to perceive and make judgments at the time o f the murder"); Commonwealth v . Jackson,

432

Mass.

88

82,

required to accept expert Lacked

mental

Therefore,

the

capacity jury

to

could

(2000)

(jury was

not

testimony that defendant form

intent

properly

to

kill).

consider

the

24

eyewitness

testimony

that

the

cruiser

had

turned

despite the evidence to t.he contrary. Furthermore,

Sergeant Ryan's testimony

that

a

"very sharp" turn would have caused marks on the road

(Tr. 2 : 5 3 , 6 8 ) , even if credited, did not render the testimony of Swan and Munoz "impossible" or "contrary

to the laws of physics"

Sergeant Ryan

(D.Br. 3 8 ) .

also opined that a car traveling at around

50

mph

might not leave tire marks on the road if it was "just taking a normal turn (Tr. 2:52-53).

In light of this

opinion, the jury reasonably could have concluded that the eyewitnesses were correct that the cruiser had turned

but

mistaken

in

sharply it had turned.

their

impressions

of

See Koonce, 412 Mass. at

how 75

(jury is free to "'accept or reject, in whole or in part, the testimony presented to them"') monwealth v. Fitzqerald,

376

Mass. 4 0 2 ,

(quoting Com411

(1978)).

For this reason too, the jury d i d not have to conclude that the turn was physically impossible. The extensive evidence of how the cruiser was operating

distinguishes

this

case

from

Aucella

v.

Commonwealth, 406 Mass. 415, 418 (1990), on which the

defendant relies (D.Br. 31).

There, the defendant's

car struck two pedestrians who were trying to cross a dark highway at night, killing one of them.

Id. at

25

No one saw the car prior to the impact, and

417.

there

no

was

evidence

Id. at

trajectory.

the

of

car's

speed

OF

Thus, the evidence was

419-20.

insufficient to prove that the car was being operated negligently.

Id.

Here,

in

contrast, there

was

evidence that the crash occurred in broad daylight

(Tr. 1 : 2 7 7 ) ,

that

the

defendant

was

flooring

the

accelerator and traveling well above the speed limit

(Tr. 2 : 3 5 ,

42-44),

and

that he

crossed

the yellow

center line of the street before the crash (Tr. 1:5961, 8 7 - 9 9 ,

115-16, 2 : 2 7 - 8 0 ) .

Thus, this case bears no

resemblance to Aucella. 2.

Further

T h e Blood & S a l i v a on the A i r b a g

evidence

that

the

defendant

was

not

having a seizure at the time of the crash was the

blood and saliva on the driver's airbag ( s e e T.Exhn. 2 &

24).

1146-47)

As the trial judge properly ruled (R.A. 1110,

,

this evidence, combined with

evidence of

cuts on the defendant's face (Tr. 1:192; T.Exh. 21), supported a reasonable inference that the fluids came from the defendant's face hitting the airbag at the time of the crash, which would suggest that he was sitting upright at that time.

Although this inference

was

not inescapable, the jury could nonetheless draw

it

and

consider

it

as part

of the Commonwealth's

proof.

ass.

Grandison, 433 Mass. at 141; Kootice, 412

at 7 5 .

The derendant's argument that

the Commonwealth

made a "judicial admission" before the single justice that the jury needed an expert to interpret the blood and saliva evidence

(D.Br. 27) Is fallacious.

When

asked why the trial prosecutor had not asked any of the experts who appeared at trial about this evidence, the appellate prosecutor noted

experts

were

qualified

evidence (SJ Tr. 23-24). that

the

experts

were

to

that

analyze

none

of

blood

these

splatter

This response indicated only unqualified

to

provide

any

insights beyond what a lay person could infer from the blood and saliva, n o t

that a Lay person would

be

unqualified to draw any inferences from the blood and saliva whatsoever. Compare Commonwealth v. S t u r t i v a n t , 1 1 7 Mass. 122, 136

(1875) ( " I t would also seem to be

within the range of common knowledge to observe and understand

those

appearances,

in

marks

or

stains

caused by blood or o t h e r fluids, which indicate the direction

from

which

they

came,

if

impelled

by

force"), w i t h Commonwealth v. Rice, 427 Mass. 203, 206 (l99E)

(expert was

called

to

adduce

from

blood

splatter evidence the number and velocity of the fatal blows and the instrument that had

inflicted them).

(2004)

(grand jurors did not need expert to know that

€ires tend to spread and become more dangerous if left unattended).

Thus, the Commonwealth did not concede

that the blood and saliva evidence was invalid. Once again, the defendant resorts to attacking the weight of the evidence, arguing that there were I

"many opportunities for the blood and saliva to have been

deposited

on

the

after

airbag

the

crash"

(D.Br. 26 (emphasis i n original); accord D.Br. 36-37).

The

evidence

in

the

light

most

favorable

to

the

Commonwealth, however, was that the defendant was not noticeably drooling or bleeding from his mouth after

(Tr. 1:214), and that his fellow officers

the crash

were able to get an oxygen mask over his mouth before he was raised to a sitting position or carried past the

airbag

by

the

medical

personnel

(Tr. 1:230).

Based on this evidence, there was little chance that the blood and especially the saliva were deposited on the

airbag

after the

crash.

Although

there

was

undeniably evidence to the contrary too (Tr. 1:170-71, 1 7 9 , 2091,

the jury was free to credit the former aver

the latter.

T h e Medical E v i d e n c e

3.

The commonwealth also presented the defendant ' s medical records (T.Exh. 21), which contained no signs that the defendant had suffered a seizure o x any other debilitating medical event

(Tr.

2:60,

90,

3:30-31).

Contrast Mcovern v . T i n g l o f , 344 Mass. 114, 116 (1962) (cited

at

(undisputed

D.Br. 31)

medical

records

established that: driver had suffered debilitating and ultimately testified

fatal that

heart

attack).

she had

examined

Sergeant these

Ryan

records

and

found nothing i n them that would explain the crash (Tr. 2 : 6 0 ,

90).

Similarly, Dr. Hoch examined

the

records and found no symptoms that were unique to a seizure

Thus,

( T r . 3:30-31). I 3

these

records

too

supported a reasonable inference that the defendant did not suffer a seizure.

Although this inference was

not inescapable, as there was a l s o evidence that a significarit

percentage

of

seizures

do

not

leave

medical evidence (Tr. 3:27, 63-66), the defendant is mistaken

in arguing

that

this

qualifying

evidence

"negates any significance that the Commonwealth may ~.

Indeed, even the defendant ' s expert, Dr . Lehrich, acknowledged that the defendant's post-crash CT scan was normal (Tr. 2 : 1 6 1 ) , that there was no medical explanation for the alleged seizure (Tr. 2:170), and that most of the defendant's post-crash symptoms could have been caused by the concussion he had incurred in the crash (Tr. 2:176-77). li

place

on

the

[medical

(D.Br. 42-43).

records] I'

Evidence does not have to be dispositive in order for the jury to consider it, along with other evidence, in assessing

the

defendant's guilt.

Crouse, 447 Mass. 5 5 8 ,

568-69

Commonwealth

(2006)

v.

(citing Common-

w e a l t h v . Tucker, 189 Mass. 457, 4 6 7 ( 1 9 0 5 ) ) .

Finally, there is no merit accusation

that

the

Commonwealth

to the defendant's used

the

medical

records to shift the burden of proof (D.Br. 4 3 ) .

The

Commonwealth never suggested at trial that additional tests

might

have

revealed

medical

evidence

of

a

seizure, let alone that the defendant was responsible foi- ensuring that such tests were conducted.

Nor does

the Commonwealth make any such argument now.

Thus,

the defendant's accusation is baseless. B.

Neither The Testimony Of The Defense Witness Nor The Acknowledgements Of Its Own Witnesses Caused The Commonwealth's Case To Deteriorate.

The defendant is also incorrect in arguing that the Commonwealth's evidence "deteriorated" during its rebuttal case,

especially when Dr. Hoch acknowledged

that the seizure defense was "a viable medical theory" (D.Br. 14-15, quoting Tr. 3 : 6 8 ) .

Evidence sufficient

to prove a defendant's guilt does not "deteriorate" as

a matter

of

law where

it

is merely

impeached or

30

contradicted later at trial; deterioration occurs only where

evidence

is

revealed

conclusively incorrect.'' 447

Mass.

he

"incredible

or

Commonwealth v . Cartwright,

1016-17

1015,

to

(2006).

Here, neither the

defense nor Dr. Hoch provided conclusive evidence that the defendant had

suffered a debilitating

seizure.

Indeed, there was no medical evidence of a seizure whatsoever stances,

(see

5

supra).

A.3,

In these circum-

the jury was free to discredit the seizu,re

theory and

to

convict

the

defendant based

on the

evidence set out above, including his erratic driving ( 5 A.l,

supra),

driver's airbay

and (§

the

blood

and

saliva

on

the

A.2, s u p r a ) .

The defendant is also mistaken in arguing that the Commonwealth's case deteriorated because its own experts could not rule out the possibility that the defendant had suffered a seizure ( D . B r . 39-41).

This

argument disregards the fundamental principle that the jury is free to "'accept or reject, in whole or in part, the testimony presented to them."' Mass. at 75

Koonce, 412

(quo%ing Fitzgerald, 376 Mass. at 411).

The jury may reject any exculpatory evidence, even if it i s admitted during the Commonwealth's case, see H a r t f i e l d , 443 Mass. at 1022-23, or goes unchallenged,

see Commonwealth v. McXnerney, 373 Mass. 136, 143-44

3 3.

(1977). This principle applies to expert testimony as well as lay testimony. 4 1 ; Jackson, 4 3 2

See U r r e a ,

Mass. at

443 Mass. at 5 4 6 -

In short, the jurors

88.

did not have to believe any of the evidence that the defendant

had

suffered

a

seizure,

including

any

inferences to that effect that could be drawn from the Commonwealth's evidence. The

evidence

in

this

case

also

defeats

the

defendant's reliance on the principle that, if the evidence

"tends equally

sustain either of

to

two

inconsistent propositions, neither of them can be said

to have been established by legitimate proof.'' Berry v.

Commonwealth,

D.Br. 24)

(see

Mass. 793, 796 (1985) (cited at

393

39-42).

also D.Br.

This principle

"pertains only to situations in which any v i e w of the Commonwealth's evidence, requires

a

leap

of

however

conjecture

favorable, with

still

respect

to

essential elements of the crime charged in order to obtain a conviction.I' 62

Mass.

npp.

Ct.

Commonwealth v .

709,

712

(2004)

Chongarlides,

(emphasis i n

original; internal quotation marks omitted), r e v i e w denied, 443 Mass. 1 1 0 5 ( 2 0 0 5 ) .

a

whole

in

Commonwealth

the --

light

especially

Here, the evidence as

most the

favorable evidence

to

that

the

the

cruiser had braked, accelerated, and turned in the

32

seconds

before

the

crash

(see

§

supra)

A.l,

--

supported a reasonable inference that the defendant was consciously operating the cruiser.

Therefore, the

jury did n o t have to make a "leap of conjecture" in order to find the defendant guilty.

The mere fact

that other inferences could be drawn from the evidence

does not affect the sufficiency analysis. 412 Mass. at 7 5

See Koonce

(where evidence supports conflicting

inferences, "it is for the jury to determine where the truth lies") For all of these reasons, the evidence at trial sufficed

support

to

the

defendant's

conviction.

Therefore, the defendant is not entitled to dismissal of the complaint on double jeopardy grounds. 11.

THE DEFENDANT'S CLAIM OF PROSECUTORIAL MISCONDUCT IS DEFEATED BY THE TRIAL JUDGE'S FINDINGS THAT THE PROSECUTOR DID NOT DELIBERATELY MAKE IMPROPER ARGUMENTS OR AVOID INQUIRIES THAT MIGHT HAVE REVEALED EXCULPATORY EVIDENCE. AND SUCH MISCONDUCT WOULD NOT JUSTIFY DISMISSAL EVEN IF IT HAD OCCURRED.

There is absolutely no merit to the defendant's claim

that

he

prosecutorial

is

entitled

misconduct

to

dismissal

(D.Rr. 44-49).

based

on

Official

misconduct does not require dismissal. o f a complaint unless:

(1) the misconduct caused "irremediable harm

to

defendant's

the

opportunity

to

obtain

a

fair

33

trial;"

or

(2)

deliberate,

and

the

misconduct

intentional"

so

is that

dismissal

criteria is met here,

is

Commonwealth v.

required as a prophylactic measure. Lewin, 405 Mass. 566, 579

"egregious,

Neither of these

(1989).

"Absent egregious misconduct or

at least a serious threat o f prejudice, the remedy of dismissal

infringes

interest

in

severely

too

bringing

guilty

the

on

to

persons

public

justice."

ComonweaZth v. C i n e l l i , 389 Mass. 197, 210 (1983).

First, there

is no basis

fox the defendant's

claim that the prosecutor "knew or should have known that his comments about [the blood and saliva on the

airbagl during h i s closing argument were unsupported and highly improper" (D.Br. 47).

As

shown in

§

I.A.2,

s u p r a , the prosecutor's arguments about the blood and saliva

were

solidly

supported

by

the

evidence.

Accordingly, the trial judge emphatically re] ected the defendant's claim

to

this

effect

at

the

Rule

25

hearing, finding that the prosecutor had made "a fair and reasonable argument, part of which certainly could have

been

anticipated" by

the

defense

accuses

the

(D.Add. 3 5 ;

R.A. 1168). The violating

defendant

also

Rule 3.8 ( j)

of

prosecutor

the Rules of

of

Professional

Conduct, which provides that a prosecutor must not

34

"intentionally avoid pursuit of evidence because

[he]

believes it will damage the prosecution's case or aid the

(D.Br. 46).

accused"

baseless.

As

the

This

trial

Rule 3 . 8 ( " j ) does not

accusation' too

judge

correctly

require a prosecutor

[defense counsel] a copy

is

noted,

"to send

of his. closing before he

stands up to make it or [to] necessarily flag it all the way

though his

important]'I 429

(R.A.

trial as to what he sees

[as

Cf. CommonweaLth v. Beal,

1207).

Mass. 530, 532 ( 1 9 9 9 ) ("prosecutor has no duty to

investigate

every

possible

source

of

exculpatory

information on behalf of the defendant"); Commonwealth

v. Anderson,

411 Mass.

279,

284-85 (1991) (Common-

wealth is entitled to put on its strongest case, and thus

need

not

"risk

assisting

[eliciting] unnecessary

[the

testimony").

defense] Although

by the

judge nonetheless ruled that the non-disclosure o f sergeant Ryan's opinion about. the windshield warranted a new trial, he explicitly found that this nondisclosure was unintentional 1165). had any

(D.Add. 31,

32;

H . A . 1164,

He also did not believe that the prosecutor

deliberately avoided exculpatory

findings by

the

investigating or eliciting

evidence judge who

( R . A . 1145-46).

These

personally observed

the

prosecutor's conduct at trial, and who was privy to

35

all

the

defeat

information

the

currently

defendant's claim

before that

engaged in deliberate misconduct.

See

this

the

Court,

prosecutor

Commonwealth v +

s p a r k s , 4 3 3 Mass. 654, 661 (2001).

Regardless, not even a deliberate decision by a prosecutor to forego potentially exculpatory investigation or

questioning would

egregiousness

that

would

dismissal of a charge.

rise

to

justify

the

level of

prophylactic

On the contrary, the range of

prosecutorial misconduct that would justify dismissal

is extremely narrow: The prosecutorial misconduct which if established warrants a dismissal barring retrial differs from the general prosecutorial ineptitude in disclosing exculpatory To evidence found by the trial judge. implicate double jeopardy protections, prosecutorial misconduct must be of a specific character: "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial . . . . " Coinmoilwealth v. Lam Hue To, 391 Mass. 301, 311 (1984)

(quoting Oregon v. Kennedy, 4 5 6 U.S. 667, 6 7 6 (1982)). See 46

a l s o Comorlwealth

V.

DruRIgold, 423 Mass;. 230,

240-

(1996) (deliberate violation by police and prosecu-

tors of judicial order not to interrogate defendant did not,justify dismissal); Commonwealth v . Phillips, 413

Mass.

50',

59

(1992)

(unconstitutional police

36

policy of randomly stopping suspected gang members did not

justify

dismissal);

by

(perjury

police Contrast

dismissal).

Mass. 438, 443

Lewin,

405

Mass.

officers

did

not

Commonwealth

(1977)

at

587

justify

Manning, 373

v.

(cited at D.Br. 4 8 )

(federal

agents' persistent disparagement of defense counsel during

efforts

to

amounted

to

recruit

"deliberate and

government agents on the defendant]

defendant

and

his

as

informant

intentional

attack

relationship between and

counsel,'I

thus

by [the

justified

Here, even if this Court were to ignore

dismissal).

the trial judge's unequivocal findings that there was no

deliberate

misconduct

whatsoever,

there

is

absolutely no evidence that the prosecutor's intent was

to provoke a mistrial.

Therefore, dismissal is

not justified. Finally,

this

is

not

a

case

in

which

the

defendant's defense has been irremediably prejudiced by

the

alleged misconduct..

On

the

contrary, the

defendant has been granted a new trial at which he may introduce address

the

the

anticipate. 'I

woefully

previously

points

that

undisclosed he

evidence

previously

failed

and

to

Although he protests that this remedy is inadequate

to

address

the

alleged

misconduct (D.Br. 48-49), he has not explained how the

alleged second

misconduct trial

in

will

any

hinder

way.

his

defense

this

For

at

reason

his

too,

dismissal is not justified.

CONCLUSION For all the foregoing respectfully

urges

reasons,

this Honorable

the Commonwealth

Court

to deny

the

defendant's p e t t t i m for extraordinary relief. Respectfully submitted, FOR THE COMMONWEALTH:

JONATHAN BLDDGETT District Attorney for the Eastern District

Special A.D.A. for the Eastern District B E 0 No. 559194

One Bulfinch Place Boston, MA 02114 617-619-4070

OCTOBER 2 0 0 8

37