COMMONWEALTH v. ARMAN CHAUDHARY (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was tried on November 8, 2019, in Bristol Superior Court on two counts: manslaughter, see G. L. c. 265 § 13, of which the defendant was acquitted, and motor vehicle homicide by negligent operation, see G. L. c. 90 § 24G (b), of which he was convicted. He now appeals.

Both counts arise out of a highway crash in the early morning of September 20, 2015, between a BMW driven by the defendant and an SUV carrying eight people. That morning, the defendant, his brother, and their friends Usman Aslam and Zubair Khan, had just concluded a night out in Rhode Island. While their initial plan had been to spend the night in Rhode Island before driving back home to Massachusetts the next day, the defendant's brother decided to return immediately. He booked an Uber and left at around one or two A.M. Following the brother's departure, the defendant and his two friends decided to return to Massachusetts as well. They had carpooled in Mr. Aslam's BMW on the way to Rhode Island, but the defendant drove the BMW on the way back because Mr. Aslam stated that he was too tired to drive.

The crash occurred on a pitch black portion of Route 95 northbound in North Attleboro. The Commonwealth's accident reconstructionist concluded that just prior to the crash, the defendant had been traveling at a speed of 115 miles per hour. Indeed, moments prior to the crash, the defendant had caught up to his brother's Uber. The Uber driver, the defendant's brother, and other drivers testified that they saw the BMW drive off the right side of the road, onto a grassy area at the edge of the highway, before cutting across several lanes of traffic and striking an SUV, causing the SUV to crash against the left guardrail and roll over. As a result of the crash, one of the SUV's passengers, a woman named Rom Tim, was killed.

The defendant claimed during trial that an individual driving a white car had sideswiped the BMW prior to the crash, causing the defendant to lose control and crash into the SUV. The defendant's sole argument on appeal is that the trial judge should not have allowed State police Trooper Dicicco to testify that the police investigation had eliminated the white car as a suspect vehicle because the statement included inadmissible hearsay. Because we conclude that admission of this testimony was not improper, we affirm.

The alleged error occurred during the testimony of State police Trooper Dicicco, who was the first officer to arrive at the scene of the crash. During cross-examination, defense counsel elicited that when Dicicco spoke with the defendant following the crash, the defendant had stated that a white sedan, possibly a Ford Focus, had sideswiped the BMW, causing it to crash into the SUV. Defense counsel further elicited that Dicicco had interviewed one of the SUV's passengers, Ran Choun, at the hospital the next morning, who had told the trooper that a white car had cut off the SUV. Defense counsel highlighted Dicicco's failure to investigate thoroughly Choun's mention of a white car, noting that Dicicco never conducted a second interview with Choun, did not know where Choun was at the time of trial, had not made any efforts in the past three years to get in touch with Choun, and had not utilized any database or subpoena to attempt to bring Choun into court.

In response, the Commonwealth asked Dicicco the following question during redirect examination: “And after speaking with that [sic] various other witnesses, and based on investigations done by the State Police, a white car was eliminated as a suspect vehicle.” At this point, defense counsel objected. The trial judge sustained the objection and then called counsel to sidebar.

At sidebar, the Commonwealth argued that this testimony was admissible as a response to defense counsel's critique, under Commonwealth v. Bowden, of the police investigation. See 379 Mass. 472, 485-486 (1980) (“The failure of the authorities to conduct certain tests or produce certain evidence was a permissible ground on which to build a defense in the circumstances of this case”). The trial judge asked whether a foundation for the exclusion of the white car as a suspect vehicle would be presented to the jury. The Commonwealth proffered that such foundation would be laid through the presentation of eyewitness testimony, and in fact it was. Following this discussion, the trial judge allowed the Commonwealth to re-ask the question, agreeing that the question was admissible as a response to the Bowden defense. See Commonwealth v. Avila, 454 Mass. 744, 757 (2009) (“the presentation of a Bowden defense can expand the usual evidentiary boundaries quite significantly, permitting, as it does, the admission of evidence concerning information conveyed to the police by a wide variety of sources that would not or might not otherwise be admitted on hearsay or relevance grounds”).¹

To the extent the trooper's testimony that he had excluded the white car relayed to the jury statements taken from eyewitnesses, those statements were not offered to prove their truth, but to demonstrate the scope of the police investigation into the claim that a white car sideswiped the BMW operated by the defendant. Commonwealth v. Colon, 482 Mass. 162, 187 (2019). We therefore see no error in the judge's conclusion.² In the circumstances, we do not think this testimony crossed the line into “an impermissible expression of opinion of the defendant's guilt” or an “implicit comment” on the “credibility” of the witnesses, arguments raised for the first time by the defendant on appeal. See Avila, 454 Mass. at 756 n.12. We note that the question of whether a white car did, in fact, sideswipe the BMW was thoroughly litigated at trial notwithstanding Dicicco's testimony, and argued to the jury.

The defendant argues that in the absence of a limiting instruction –- which was not sought below –- the claimed error was “enhanced” because “the statement was hearsay, admitted for the truth of the matter, not as evidence rebutting the Bowden-like argument.” But the absence of a limiting instruction does not change the purpose for which evidence is admitted. If the defendant was concerned that the jury would use the eyewitness statements implicit in Dicicco's testimony to conclude that no white car sideswiped the BMW, he could, of course, properly have sought a limiting instruction, but again, he did not do so. Cf., e.g., Commonwealth v. Rosa-Roman, 485 Mass. 617, 640 (2020); Colon, 482 Mass. at 187. To the extent the defendant intends to argue that failure to give such an instruction sua sponte was error, we conclude that, given the thorough litigation of the question of whether a white car sideswiped the BMW, any error in the admission of the testimony or in the failure sua sponte to give such an instruction did not create a substantial risk of a miscarriage of justice. Commonwealth v. Carter, 423 Mass. 506, 514 (1996).

Judgment affirmed.

FOOTNOTES

1.   No objection was made at trial, nor is any argument made before us, with respect to the form of the Commonwealth's question. We therefore do not address the issue.

2.   The defendant also asserts a violation of the confrontation clause of the Sixth Amendment to the United States Constitution. The trial transcript, which marks a portion of the above-referenced sidebar discussion “unintelligible,” does not indicate that such an objection was raised below. The defendant does not assert that he raised the confrontation clause during the “unintelligible” portion of the sidebar discussion, and any such assertion would be unavailing in view of his failure to take any steps to recreate that portion of the record. It is the obligation of the appellant to attempt to recreate the record if he intends to show preservation of a claim of error in reliance upon an unintelligible portion of a transcript. Commonwealth v. Sargent, 449 Mass. 576, 582 n.10 (2007). In any event, if an “out-of-court statement is offered for any purpose other than its truth, then it is not hearsay and the confrontation clause is not implicated.” Commonwealth v. Caruso, 476 Mass. 275, 295 n.15 (2017). Accordingly, there was no error.