On October 12, 2012, at approximately 4:30 P.M., the defendant led police on a high-speed chase through the streets of Brockton, finally running a red light at a busy intersection and causing a seven-car collision resulting in the death of another driver, Marianne Kotsiopoulos. After a four-day trial, a jury found the defendant guilty of murder in the second degree, involuntary manslaughter,
The Commonwealth's case.
We recite the evidence and the reasonable inferences to be drawn from it in the light most favorable to the Commonwealth. See
Two more detectives had by then arrived. As the TrailBlazer headed east down Crescent Street, traveling at a "high rate of speed going in and out of traffic," those detectives pursued, followed by the SUV and a third police vehicle. The TrailBlazer weaved in and out of lanes heading both east and west, driving on the yellow center lines, while other vehicles stopped or pulled over to allow the police vehicles, with lights and sirens activated, to pass. The TrailBlazer traveled on the wrong side of the road in making a left turn onto Quincy Street, "the rim . . . riding on the ground," tires squealing, and rear end sliding, and it continued north at high speed, gaining distance on the police. Witnesses described traffic at the time as "heavy," "rush hour," "bumper to bumper," "gridlocked," "busy," and "very steady."
By then several hundred yards in front of the police vehicles, the TrailBlazer sped through a red light at the intersection of Quincy Street and Centre Street and collided with another vehicle.
The TrailBlazer was equipped with an "Event Data Retrieval" (EDR) system, which recorded the vehicle's speed just prior to the collision. The EDR data revealed that the TrailBlazer had accelerated at full throttle from fifty-three miles per hour five seconds before the impact, to sixty-four miles per hour one second before impact, and at the moment of impact was traveling approximately fifty-five miles per hour. The EDR system also revealed that the brake pedal was never depressed prior to impact.
After the collision, the defendant exited the wrecked TrailBlazer, left the scene on foot, and was apprehended nearby. After receiving Miranda warnings, the defendant told Detective Donahue that he "didn't mean to hurt anybody," "hoped everybody was okay," and "basically took off from [the police] because he didn't have a license to drive." In an interview a few hours later, the defendant told another officer that he had seen a police car with lights in his rear view mirror but "didn't want to stop," because he didn't have a license, so he "just kept driving . . . because [his] brakes wouldn't stop for [him.]" He said that as he approached the intersection, there were cars on his side of the street, so he "went around them on the left side," into the intersection, and collided with another car.
The defendant's case.
The defendant, who testified at trial, gave a version of events largely similar to the Commonwealth's. Although the jury were not required to credit the defendant's explanations, we supplement the facts with portions of his testimony that are relevant to his arguments on appeal.
On the day in question, the defendant planned to meet an acquaintance and conduct a drug transaction in the area where Detectives Donahue and Carpenter were patrolling. The defendant was looking for and attempting to contact his acquaintance when he approached a stop sign and noticed that a car had pulled up behind him "out of nowhere." The defendant perceived the car's movements as threatening and suspicious, thought someone was trying to "pin [him] in" and rob him, and "instinctively panicked," veering off to the right onto Crescent Street. The defendant could not recall how fast he was driving, but knew that he was passing other cars. He testified that he "felt really threatened" and thought his "life was in harm's way."
After traveling one-half mile down Crescent Street, turning left onto Quincy Street, and proceeding north, the defendant began to hear sirens behind him. He looked in his rearview mirror and saw blue lights in the distance. The defendant "didn't know how to react," so he "froze up," and by the time he looked forward again, he was already at the intersection with Centre Street and colliding with the other vehicles. He admitted that he did not apply the brakes, which he testified were "getting worn down" and not "pinpoint accurate."
The defendant also admitted that he was aware at the time that his driver's license had been suspended, but explained that the real reason he fled was out of fear that someone was trying to rob him, not to evade the police. The defendant insisted that he did not know it was the police who were pursuing him until he was nearly at the intersection where the collision occurred. The defendant acknowledged that he caused the collision and was responsible for Kotsiopoulos's death.
Prior to trial, a judge denied the defendant's motion to dismiss the indictment charging murder in the second degree. After the close of the Commonwealth's case, and again after the close of the evidence, the defendant's motion for a required finding of not guilty on that charge was also denied. These motions concerned the sufficiency of evidence as to third prong malice, which we discuss
At the charge conference, the prosecutor, defense counsel, and the judge acknowledged that manslaughter is typically a lesser included offense of murder, and they discussed the possibility of so instructing the jury. The judge declined to give that instruction, reasoning that both charges must go to the jury because they were charged by separate indictments. The judge announced that, should the jury return guilty verdicts on both, he would vacate the conviction of manslaughter. The defendant did not object, and the judge instructed the jury on both involuntary manslaughter and second degree murder as separate charges.
The jury returned guilty verdicts on both charges. At sentencing, the judge declined to reconsider his denial of the defendant's motion for a required finding of not guilty. He vacated the manslaughter conviction, and imposed a sentence of life in prison on the conviction of murder in the second degree.
Pursuant to Mass.R.Crim.P. 25(b)(2), the defendant moved to reduce the second degree murder verdict to a lesser offense. The motion judge, who was also the trial judge, denied the motion without findings or an express statement of his rationale. The defendant now appeals.
Sufficiency of evidence of third prong malice.
"Murder in the second degree is an unlawful killing with malice."
The defendant claims that the Commonwealth failed to prove the third prong of malice, because the evidence was insufficient to show that he committed an act that a reasonable person, in the circumstances known to him, would have understood to create a "plain and strong likelihood of death." He argues that the evidence could sustain only a verdict of involuntary manslaughter, which requires proof of "wanton or reckless conduct" involving a "high degree of likelihood that substantial harm will result to another."
We disagree. Viewed in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, the evidence showed that the defendant, driving an SUV, led police on a high-speed chase through busy city streets at rush hour, driving dangerously and erratically and committing serious traffic violations before running the red light at the intersection, causing an extraordinarily high-impact collision. By the defendant's own testimony, he did this while believing that his vehicle's brakes were not in good working order, further heightening the risk of harm he should have perceived at the time. Still, he made no effort to brake, slow down, or steer away from the intersection before the collision.
Regardless of the defendant's motive for fleeing, and of whether he knew that his pursuers were the police, the jury were entitled to find that a reasonable person in the defendant's circumstances would have perceived that his conduct went beyond mere recklessness and created a degree of risk more serious than simply a high likelihood of substantial harm to another. A rational jury could have concluded that the defendant should have been aware that his conduct created a plain and strong likelihood that someone — be it a fellow motorist, pedestrian, or pursuing police officer — would die. Thus, the evidence was sufficient to support a third prong theory of malice, and the judge did not err in denying the defendant's motion for a required finding of not guilty of murder in the second degree.
Prosecutor's closing argument.
The defendant, for the first time on appeal, takes issue with the prosecutor's statements during his closing argument that the defendant "aimed" or "pointed" his car directly at the intersection. He claims that the evidence showed that he was "just trying to get away" and was already colliding with other vehicles at the intersection before he realized it. He also argues that it was improper for the prosecutor to argue that the defendant "knew" his brakes were not functioning properly, where the evidence showed that although the defendant believed that to be the case, a postaccident forensic analysis showed that the brakes were actually not defective and in any event were not applied before the collision.
We think the statements, taken in context, fairly urged the jury to draw rational inferences from the evidence presented: that the defendant made no attempt to avoid the collision, and instead continued to steer and accelerate directly toward an intersection with a red light, despite his belief that the brakes were worn. See
Jury instruction on manslaughter as lesser included offense.
The defendant argues that the judge erred in declining to instruct the jury that manslaughter is a lesser included offense of murder. The judge determined that he should not do so, but instead should instruct separately on each offense, because the defendant had been separately indicted for each offense. Defense counsel stated, "That's what I thought," and neither requested a lesser included offense instruction nor objected to its not being given.
The jury are presumed to have followed the judge's instructions. See
Failure to request instruction on "accident."
The defendant additionally contends that trial counsel was ineffective in failing to request an instruction on "accident," resulting in a substantial risk of a miscarriage of justice. We do not agree, as the evidence did not warrant any such instruction.
In the criminal context, the term "accident" is used in two senses. See
"Accident" in its second, broader sense, "although presupposing an unintended result, focuses on the nature of the conduct that produced that result and not simply on the result itself."
Denial of rule 25(b)(2) motion.
The defendant appeals from the denial of his motion to reduce the murder verdict to manslaughter, pursuant to Mass.R.Crim.P. 25(b)(2). He argues that the facts of his case are more similar to cases involving involuntary manslaughter than to those involving second degree murder, and thus a verdict of manslaughter would more closely comport with justice.
Standards for rule 25(b)(2) motions.
A judge presented with a rule 25(b)(2) motion "has broad authority to reduce a jury's verdict, despite the presence of legally sufficient evidence to support it . . . `where the weight of the evidence. . . points to a lesser crime.'"
Application of rule 25(b)(2) standards to this case.
Although the judge made no express findings, we assess his denial of the motion on the assumption that he considered all of the relevant factors.
The cases we view as most relevant for comparison purposes are
Comparing the facts of