No. 16-P-1176.


Appeals Court of Massachusetts.

Attorney(s) appearing for the Case

David B. Mark , A.D.A., Stephen C. Nadeau , A.D.A., for Commonwealth, Plaintiff/Appellee.

Catherine B. Sullivan Ledwidge, Esquire , for Richard Martinez, Defendant/Appellant.

By the Court (Agnes, Massing & Lemire, JJ.)


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).

The defendant appeals after his convictions of homicide by motor vehicle and leaving the scene of a motor vehicle accident resulting in death. He claims error in the judge's instructions to the jury on duress, and alleges that the evidence was insufficient to convict him of leaving the scene. We affirm.

1. Duress.

The victim, who was standing in the street, died from injuries sustained after being struck by the pickup truck operated by the defendant and dragged by its door. At the defendant's trial on indictments for manslaughter, homicide by motor vehicle under G. L. c. 90, § 24G(b), and leaving the scene in violation of G. L. c. 90, § 24(2)()(2), the defense theory was one of duress. It is unnecessary to recite with precise detail the defendant's version of events, which was admitted in evidence through a partial recording of his interview with police and through testimony of police and other witnesses. Suffice it to say that the evidence, viewed in the light most favorable to the defendant, raised a fair inference that the defendant acted under duress, and the Commonwealth does not dispute that he was entitled to a jury instruction on that defense. See Commonwealth v. Robinson, 382 Mass. 189, 200-201 (1981). In brief, the defendant claimed that he ran over the victim unintentionally while an unknown male in the back seat of his pickup truck pressed a cold metal object to the back of the defendant's head and demanded that he drive away. The defendant told police that once the man (and a male companion) had finally exited his vehicle, he proceeded to his mother's house and telephoned 911.

The judge's final charge to the jury, of which they were provided a written copy, included comprehensive instructions on the defenses of duress and necessity. On appeal, the defendant does not argue that these instructions incorrectly stated the law. He takes issue, however, with the supplemental instructions on duress that the judge gave in response to a jury question. During the second day of deliberations, the jury sent to the judge a note reading, in part, "If we apply [d]uress to one charge, need we apply it to others?" The judge's written response instructed the jury as follows:

"Your decision as to one charge should not control your decision as to another. Each charge is entitled to your individual determination. Therefore, the general rule is that if you conclude that the Commonwealth has not proved beyond a reasonable doubt that the defendant did not act under duress during the commission of one offense, you may, but need not conclude that the Commonwealth did not meet its burden of proof with respect to the other offense(s). There is an exception to this general rule and that is where the other charge(s) are based upon the exact same criminal act as the charge in which you find that the Commonwealth did not prove that the defendant did not act under duress. I remind you that the defendant does not have the burden to prove that he acted under duress." (Emphasis supplied.)

Defense counsel objected to the judge's inclusion of the word "exact" in the penultimate sentence. He also objected on the basis that the discussion of the "exception" to the general rule was confusing to the jury. He presses the latter claim on appeal, arguing that the judge should have taken the additional step of connecting that exception to the facts of this case, specifically the two crimes (manslaughter and homicide by motor vehicle) arising out of the same act (pressing the gasoline pedal to accelerate the vehicle, thus striking the victim). He asserts that the judge should have expressly instructed the jury to find the defendant not guilty of both charges if they determined that he was under duress at the time of that act.

"[A]s a general proposition, the necessity, extent, and character of . . . any supplemental instructions are matters within the discretion of the judge." Commonwealth v. Thomas, 21 Mass.App.Ct. 183, 186 (1985), quoting from United States v. Castenada, 555 F.2d 605, 611 (7th Cir.), cert. denied, 434 U.S. 847 (1977). "But the law does not require repetition of the same thought at each turn." Commonwealth v. Peters, 372 Mass. 319, 324 (1977). Indeed, we presume that a jury follow all instructions, and we consider initial and supplemental instructions as a whole. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997).

In this case, the judge provided the jury with written instructions, both initial and supplemental, which contained no error of law. Her response to the jury's question "comprehensively informed the jury on all probable facets raised by the inquiry." Commonwealth v. Ronayne, 8 Mass.App.Ct. 421, 427 (1979). She correctly stated that the jury must consider each charge separately, and expressed the general rule that duress may be applicable to one offense but not another. She was also correct in describing the exception to that rule, and nothing required her to further tie her explanation to the facts of the case. See Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998) (judge need not specifically address confusion in responding to jury question). Moreover, she explicitly instructed the jury to "consider all of [her] instructions that [she] gave [initially], equally with these." If any confusion remained after she provided the jury with her supplemental instruction, they could have posed another question; the fact that they did not suggests that they adequately understood the law of duress and its application here. See id. at 489.

2. Leaving the scene.

The defendant asserts that the Commonwealth set forth insufficient evidence that he violated G. L. c. 90, § 24(2)()(2). In particular, he challenges the Commonwealth's proof that he intended, as the statute requires, to "avoid prosecution or evade apprehension" in driving away from the scene. Commonwealth v. Muir, 84 Mass.App.Ct. 635, 638 (2013) (defining elements of crime set forth in statute), quoting from G. L. c. 90, § 24(2)()(2).

At trial, the Commonwealth presented evidence that, contrary to his claim in his interview with the police, the defendant did not immediately telephone 911 after the men exited his truck. In the light most favorable to the Commonwealth, that evidence showed that the defendant first went to his cousin Gabriel Felix's home and told Felix that he (the defendant) got into an accident and hit a person with his truck. The defendant told Felix that the collision made a "toom toom" noise. Felix telephoned another cousin, Pablo Guzman, and the defendant told them both that he thought he might have killed the victim. Guzman and Felix told the defendant to go to the police, but instead Guzman, in his own vehicle, drove the defendant and Felix back to the scene of the accident in Fairhaven to "mak[e] sure" of what happened. They observed police cars and lights, but instead of stopping, Guzman drove Felix and the defendant back to Felix's home. Guzman testified that he told the defendant at least fifteen times that he should go to the police. Felix testified that he, too, told the defendant to go to the police. Yet the defendant sat down to eat a meal before he finally went to the police.

There was sufficient evidence for a rational trier of fact to conclude that the defendant possessed the requisite intent. Even if the defendant had acted under duress at the time of the accident, a theory the jury apparently rejected, he did not avail himself of the opportunity to make himself known as soon as the threat had passed. To the contrary, he revisited the scene of the accident and still did not reveal himself. This case is on all fours with Commonwealth v. Henault, 54 Mass.App.Ct. 8 (2002), in which the defendant went directly to his home after the accident, bypassing numerous opportunities to seek help or a telephone at a home, social club, gasoline station, restaurant, or police station. Id. at 10. Like the defendant here, Henault ignored another's advice to telephone the police immediately. Id. at 15. In Henault, even the defendant's twelve-minute delay in informing the authorities was sufficient to sustain his conviction in the face of the same sufficiency challenge as the one advanced in this case. See id. at 10-11. In that case, as here, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that the defendant fled the scene of the accident in order to avoid prosecution or evade apprehension.

Judgments affirmed.


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