COMMONWEALTH v. PASQUINI PEZZENI (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the Superior Court, the defendant was convicted of manslaughter while operating a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 265, § 13 1/2 (OUI manslaughter), and leaving the scene of an accident involving personal injury in violation of G. L. c. 90, § 24 (2) (a 1/2) (1).³ On appeal, he argues that his motions for required findings of not guilty filed at the close of the Commonwealth's case and at the close of all the evidence should have been allowed. He also claims that the judge misapplied the law with regard to the charge of OUI manslaughter. We affirm.

Background. The defendant does not dispute that on the evening of November 8, 2016, he was “drunk” when he drove at a high rate of speed through an intersection against a red light and struck a pickup truck driven by David Matysek. Matysek was gravely injured and died that night of his injuries. The Commonwealth's evidence established that before the accident, at approximately 7:35 p.m., Charlotte Oleksak was stopped at a traffic light at an intersection in Westfield when her car was struck from behind by a sedan driven by the defendant. Oleksak got out of her car, approached the defendant, asked him if he was all right, and then requested that he get out of his car. Oleksak asked the defendant several times if he was drunk, but he did not respond. Oleksak finally told the defendant, “You are drunk,” at which point the defendant told Oleksak to pull her car to the side of the road. When Oleksak did so, the defendant drove away and turned onto Route 20, a main thoroughfare where the accident with Matysek occurred a few minutes later.

Several officers responded to the scene of the accident. The defendant, who had remained in his car, was visibly intoxicated. His eyes were bloodshot and glassy, his speech was slurred, and he was unsteady on his feet. At one point a police officer asked the defendant if he had been drinking, to which he responded, “[N]ot enough.” The defendant was taken to the hospital where he was treated for minor injuries. A blood test indicated that the defendant's blood alcohol level was between 0.31 and 0.325. Thereafter, the defendant was transported to the police station where, during the ensuing booking procedure, he was still showing signs of intoxication. He smelled of alcohol, was disoriented, and vomited in his cell.

At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty on the OUI manslaughter charge.⁴ He did not dispute that the Commonwealth's evidence was sufficient to convict him of motor vehicle homicide under G. L. c. 90, § 24G (a). Rather, he claimed that in light of his extreme intoxication, he was not capable of knowing and disregarding the risks created by his conduct. As a result, he argued, the Commonwealth failed to prove his conduct was wanton or reckless. The judge concluded otherwise and denied the motion in a well-reasoned written memorandum of decision.

Thereafter, the defendant presented his case. He called one witness, Dr. Robert Powers, a professor of forensic science, who specializes in forensic toxicology. Dr. Powers testified that he “would expect” a person with the same blood alcohol level that the defendant had at the time of the accident to have a “very limited ability to process information,” to be “significantly impaired in their ability to appropriately assess risk,” and to be unable to “come to rational decisions based on available information.” Dr. Powers opined that, as a result of his alcohol consumption, the defendant had been unable to appropriately “perceive, react, and respond to evolving potentially hazardous or dangerous situations.” He asserted that neither the defendant, nor anyone with the same blood alcohol level, would have possessed the cognitive ability to understand the risk of harm presented by driving a motor vehicle. Dr. Powers also reasoned that, because driving is a learned skill, it is possible to intend to drive without being able to evaluate the consequences of doing so. At the conclusion of Dr. Powers's testimony, the defendant rested and renewed his motion for a required finding of not guilty. The parties waived argument, and the trial judge denied the second motion.

Discussion. 1. Motions for required findings of not guilty. a. Standard of review. “When reviewing the denial of a motion for a required finding of not guilty, ‘we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378 (2017), quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable’ ” (citation omitted). Ross, supra. Because “the defendant moved for a required finding of not guilty at the close of the Commonwealth's case and again at the close of all the evidence, we first ‘consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time.’ ” Id. at 379, quoting Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006). “Then, we ‘consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case.’ ” Ross, supra, quoting O'Laughlin, supra. Because the sufficiency of the evidence is a question of law, our review of the denial of a motion for a required finding of not guilty is de novo. Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013).

b. Sufficiency of the evidence at the close of the Commonwealth's case. The crime of OUI manslaughter “consists of the elements of manslaughter plus the elements of OUI.” Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 39 (2016). Here, as in most scenarios in which OUI manslaughter is charged, “the crime requires proof of involuntary manslaughter based on wanton or reckless conduct.” Id. at 39-40, citing Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 83 (2011). “The elements of involuntary manslaughter are (1) that the defendant caused the victim's death, (2) that the defendant intended the conduct that caused the victim's death, and (3) that the defendant's conduct was wanton or reckless.” Guaman, supra, citing Commonwealth v. Welansky, 316 Mass. 383, 397 (1944).

The defendant challenges the sufficiency of the evidence only with respect to the mens rea element of wanton or reckless conduct. As previously noted, he concedes that the evidence was sufficient to prove that he caused the victim's death while operating a motor vehicle while under the influence of intoxicating liquor. The defendant asserts, as he did at trial, that due to his extreme intoxication, the Commonwealth failed to prove that he acted recklessly, i.e., that he knowingly ran the risk that his conduct would result in the victim's death. In other words, the defendant claims that at the time of the accident he was simply too drunk to knowingly and intentionally disregard the risk that his conduct would result in grave danger to others. For substantially the same reasons articulated by the trial judge, we are not persuaded by this argument.⁵

The Commonwealth may prove wanton or reckless conduct under either a subjective or an objective standard. Guaman, 90 Mass. App. Ct. at 40. The subjective standard is based on “the defendant's own knowledge” and requires the Commonwealth to show that “grave danger to others [was] apparent and the defendant ․ chose[ ] to run the risk rather than alter [his] conduct so as to avoid the act or omission which caused the harm.” Id. at 40-41, quoting Commonwealth v. Pugh, 462 Mass. 482, 496 (2012). Under the objective standard, “the defendant's actions constitute ‘wanton or reckless conduct ․ if an ordinary normal [person] under the same circumstances would have realized the gravity of the danger.’ ” Guaman, supra at 41, quoting Pugh, supra at 496-497. The trier of fact may properly consider the defendant's decision to drive while drunk as a factor toward proof of recklessness. See Commonwealth v. Dyer, 77 Mass. App. Ct. 850, 857 n.9 (2010).

Here, a rational trier of fact (in this case, the trial judge) could have found beyond a reasonable doubt that the defendant knowingly and intentionally drove his car in a wanton or reckless manner. To begin with, the defendant chose to drive after consuming large amounts of alcohol and after he struck another vehicle. When Oleksak spoke to the defendant, she told him that he was drunk. At this point, the defendant was on notice that he was drunk and that his ability to drive was impaired. Nevertheless, he told Oleksak to move her vehicle out of the road in front of him and, when she complied, he drove away. We conclude that this evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove beyond a reasonable doubt that the defendant was aware that he was drunk and knew that his ability to drive safely was impaired. Thus, based on the defendant's own knowledge, he knew his conduct, i.e., driving, posed a grave danger to others and he chose to “run the risk rather than alter [his] conduct so as to avoid the act or omission which caused the harm” (citation omitted).⁶ Guaman, 90 Mass. App. Ct. at 41.

c. Deterioration of the Commonwealth's case. “Deterioration occurs where ‘evidence for the Commonwealth necessary to warrant submission of the case to the jury is later shown to be incredible or conclusively incorrect.’ ” Ross, 92 Mass. App. Ct. at 381, quoting Kater v. Commonwealth, 421 Mass. 17, 20 (1995). The defendant argues that, even if the evidence at the close of the Commonwealth's case was arguably sufficient to permit a rational trier of fact to infer he possessed the requisite capacity to know and disregard the risk associated with his conduct, that inference was rendered untenable by unrebutted expert testimony that in light of the level of his intoxication, the defendant lacked any ability to understand the risks he was creating by driving, let alone elect to disregard those risks.

However, the judge, as trier of fact, was not required to accept Dr. Powers's opinion. See Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (“The jury [or trier of fact] are free to believe or disbelieve any or all of the evidence they hear”). More fundamentally, Dr. Powers's testimony did not “conclusively” establish that the Commonwealth's evidence was incorrect. Ross, 92 Mass. App. Ct. at 381. Consequently, we conclude that deterioration warranting a required finding of not guilty did not occur here.

2. Alleged misapplication of the law. The defendant argues that the judge “misapprehended the standards by which knowledge must be proved in OUI manslaughter prosecutions, and failed to consider the evidence most relevant to this determination,” namely the defendant's extreme intoxication. This argument is based primarily on the judge's comment that “intoxication or drunkenness is not a legal defense to a criminal charge ․” The statement was made just after the judge denied the defendant's motion for a required finding of not guilty at the close of all the evidence. In addition, the defendant claims that the judge improperly focused on his intent rather than knowledge and, as a result, failed to understand the central issue of the case: the impact of his impairment on his capacity to know and disregard the risks created by his driving.

As the defendant acknowledges, in jury-waived trials, the trial judge is presumed to have “correctly instructed himself on the law.” Commonwealth v. Healy, 452 Mass. 510, 514 (2008). Here, the record as well as the judge's written memorandum of decision denying the defendant's motion for a required finding of not guilty filed at the close of the Commonwealth's evidence demonstrate that the judge fully understood the law and applied it appropriately. It is similarly evident that the judge understood the significance of the defendant's argument with regard to the voluntary consumption of alcohol and did not, as the defendant asserts, fail to consider the defendant's evidence.

Judgments affirmed.

FOOTNOTES

3.   The judge also found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24 (1) (a) (1), but subsequently dismissed the conviction as duplicative of the OUI manslaughter conviction. The Commonwealth filed a nolle prosequi on the subsequent offense portion of that indictment.

4.   The defendant also moved for a required finding of not guilty on the charge of leaving the scene of an accident. The judge denied this motion as well, but the defendant does not challenge this ruling on appeal.

5.   Because our review of the sufficiency of the evidence is de novo, see Hamilton, 83 Mass. App. Ct. at 410, we need not address the defendant's argument that the judge applied an erroneous legal standard to the facts. Even if the judge did so, and we do not believe that is the case, we determine the legal question of sufficiency without deference to the trial judge's ruling.

6.   Given our conclusion, we need not address the defendant's alternative argument that the Commonwealth's evidence was insufficient under an objective measure of recklessness.