COMMONWEALTH v. RIPLEY (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A District Court jury convicted the defendant of negligent operation of a motor vehicle. The charges were based on an incident in which the defendant's car hit a pedestrian in a bank parking lot. For the reasons that follow, we affirm.

1. Sufficiency of the evidence. The defendant argues that there was insufficient evidence that she was driving negligently. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004) (discussing elements of negligent operation of motor vehicle so as to endanger). In evaluating that argument, we view the evidence in the light most favorable to the Commonwealth, drawing all reasonable inferences therefrom, to determine whether the evidence was sufficient to persuade a rational jury to find the essential elements of the crime charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

Based on the Commonwealth's evidence, rational jurors readily could have found that the defendant was using her cell phone while driving and that this distraction was the reason she failed to see the victim.² This was more than enough to establish that the defendant was not exercising due care while driving.³

2. Closing argument. The defendant's brother, who was a passenger in the car, testified on her behalf. On appeal, the defendant claims that during closing arguments the prosecutor improperly suggested that the brother could be biased. Specifically, the defendant challenges the prosecutor's statement “that even with the very best of intentions, it's very difficult for a loved one to testify without any bias as to what his sister was doing right before an accident occurred.” Especially given the measured manner in which the prosecutor raised the issue, we discern no error in suggesting that the brother could be biased. See Commonwealth v. Niemic, 472 Mass. 665, 674-675 (2015).

3. Evidence of postaccident remedial measures. After the accident, the bank took certain remedial measures, including the installation of stop signs in the parking lot. During a sidebar discussion, the prosecutor informed the judge that she intended to object to the defendant's introduction of photographs that showed such measures. The transcript indicates that the defendant intended to introduce such photographs through the defendant's mother, who was not an eyewitness to the accident. A lengthy sidebar discussion ensued about whether the defendant could get the photographs in evidence through her mother. The judge indicated that she considered photographs of the new stop signs irrelevant to whether the defendant was negligent on the day of the accident and that she (the judge) therefore deemed them inadmissible. The judge expressed more openness to admitting other photograph(s) which apparently showed a new crosswalk at the parking lot,⁴ although she expressed skepticism about how the defendant could get even such photograph(s) admitted through the mother. Counsel indicated that instead of calling the mother, he would seek to get evidence of the remedial measures admitted through another witness. The defendant's mother indeed was never called, but a different defense witness testified without objection to the fact that the bank installed stop signs and modified the crosswalk after the accident.

On appeal, the defendant claims that the judge committed reversible error by excluding evidence of the bank's postaccident remedial measures. The defendant argues that while such evidence could not be used to prove that the bank was negligent, it could be introduced to demonstrate the feasibility of remedial measures. See Mass. G. Evid. § 407 (2019). Because the sidebar discussion ended inconclusively with counsel deciding to pursue evidence of the remedial measures through a witness other than the mother, it is far from clear that the judge made any evidentiary ruling adverse to the defendant. In any event, the defendant ultimately succeeded in getting evidence of the remedial measures before the jury. Therefore, even if the judge erred in concluding that evidence of the remedial measures was not relevant,⁵ the defendant cannot show prejudice.

Judgment affirmed.

FOOTNOTES

2.   The victim testified that she saw the defendant holding her cell phone just before she was hit, and the victim's husband testified that he heard the defendant admit that she was “responding to a call from ․ a friend” and that this was “why she didn't see [the victim].” The defendant denied this, but the jury were not bound to believe her or the other witnesses who testified on her behalf. Matters of credibility were for the jurors to resolve.

3.   We do not mean to suggest that the Commonwealth's case depended on the jury's finding that the defendant was distracted by her cell phone. As the Commonwealth points out, there was evidence that the defendant was driving negligently even under her own version of the events.

4.   Counsel claimed that the photograph(s) of the new crosswalk contradicted the victim's testimony that she was in a crosswalk at the time of the accident.

5.   To be clear, we do not mean to suggest that the judge erred in this regard; we simply need not resolve the issue.