Commonwealth v. Bailey

100 Mass.App.Ct. 1102

172 N.E.3d 432 (Table)

COMMONWEALTH

v.Aaron BAILEY.

19-P-1836

Appeals Court of Massachusetts.

Entered: July 19, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Aaron Bailey, was convicted of leaving the scene after causing injury to another vehicle or property in violation of G. L. c. 90, § 24 (2) (a ).² On appeal, the defendant challenges the sufficiency of the evidence as to both of the motor vehicle accidents specified in the single indictment charging the offense, the trial judge's failure to give a specific unanimity instruction, and the admission of the full contents of a "turret tape," consisting of recordings of police radio transmissions on the night of the incident. Because we conclude that the jury heard insufficient evidence to support a conviction as to either accident, we reverse.

Background. a. Facts. We summarize the trial evidence in the light most favorable to the Commonwealth, reserving certain details for our later discussion.³ See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). While on patrol at approximately 10:45 P.M. on November 11, 2018, two Boston police officers observed a Volvo with an expired registration sticker and, after running an inquiry of the license plate number, learned that the plate was registered to a different vehicle. The officers then effectuated a traffic stop by pulling behind the Volvo as it was stopped at a red light and activating the cruiser's lights and sirens. They observed that the Volvo had only one occupant, later identified as the defendant. As the officers stepped out of their vehicle and approached the Volvo, the Volvo took a right turn and abruptly sped off. A Boston police sergeant happened to be in the area and observed the incident. He activated the lights and sirens on his unmarked cruiser and pursued the Volvo. The other two officers returned to their vehicle and joined the pursuit.

A chase ensued for approximately three to five minutes, during which the officers followed the Volvo at a speed of fifty miles per hour, well over the twenty-five mile per hour speed limit. In addition to speeding, the Volvo weaved in and out of traffic, repeatedly crossed the marked lines into oncoming traffic, and ignored traffic signals. While traveling on Quincy Street near Bellevue Street, all three officers observed the Volvo strike the front bumper of a Honda Accord as it crossed into opposing traffic.⁴ The Volvo did not slow down, but instead sped away, swerving left and right to evade the police.

Thereafter, the officers lost sight of the Volvo for a few seconds as it took a turn onto Bowdoin Street. They continued to follow its path and discovered the Volvo stopped in the middle of the road in front of 15 Adams Street. By that time, the front fender of the Volvo was heavily damaged, one of the axles was destroyed, and the front end of the vehicle was "pretty much on the ground," rendering it inoperable. Debris from the bumper was on the street. The police later observed an Acura that was parked in front of 5 Adams Street, approximately three to four vehicles away from the Volvo. The Acura had damage to the left front fender and a headlight, as well as scratch marks. Given where the Acura was parked and the Volvo's direction of travel, the damage on the Volvo corresponded to the damage on the Acura.

As the officers approached the Volvo on foot, they observed the defendant inside. The defendant indicated that he could not open the driver's side door. The officers entered the Volvo through the passenger side door. At the same time, the sergeant reached through the partially open driver's side window and unlocked the driver's side door. Given the significant damage to the door, he was only able to open the door about twelve inches before it slammed shut. After exerting "a lot more force," the sergeant was able to open the door past the point where it was stuck.

Once inside the Volvo, the police gained control of the defendant's hands, removed him from the vehicle, handcuffed him, placed him under arrest, put him in one of the cruisers, and transported him from the scene. The officers then arranged for the Volvo to be towed. As the Volvo was being pulled on to the flatbed tow truck, the tow truck driver alerted the police to a firearm on the ground under the Volvo near the driver's side door.

b. Admission of turret tape. During the trial, defense counsel played for one of the officers, who was the Commonwealth's first witness, several segments of the turret tape containing the officer's radio transmissions during the incident. The turret tape was then entered into evidence as an exhibit at the request of defense counsel and without objection from the prosecutor. The actual exhibit was a compact disc (CD) that contained approximately three hours of recordings.

After the prosecutor played different segments of the turret tape during redirect, it became evident that there was a miscommunication about the exhibit. The judge and the prosecutor understood that the entire CD was in evidence. However, defense counsel explained his intention was only to introduce the specific segments that he played during cross-examination such that he could still object if the prosecutor sought to use different segments.

Over the course of the next day, the judge encouraged the parties to reach an agreement on how to handle the exhibit and sought to pinpoint the basis of defense counsel's concern about admission of the other segments on the turret tape. The prosecutor requested that the judge simply instruct the jury that the relevant timeframe for the recordings spanned one hour, from the time of the first segment played by defense counsel until the last segment pertaining to the discovery of the gun. Defense counsel agreed that the one-hour timeframe was "the relevant portion," but also explained that some segments within that timeframe pertained to wholly unrelated incidents, some segments contained hearsay that did not fall under any exception, and one segment involved a discussion with the officer about the vehicle struck near Bellevue Street. After the judge noted the evidence was uncontroverted that the Volvo struck two vehicles, defense counsel confirmed that he would not offer evidence to the contrary but did not "want to give anything extra to the Commonwealth."

Ultimately, the judge ruled that the exhibit was offered without objection and the CD was submitted to the jury with instructions on how to listen to it in the jury room. The instructions specified the one-hour timeframe, and indicated "the recording bars contained in that span ... have been designated by the parties as in reference to this case."

Discussion. The defendant argues that his conviction must be reversed because the Commonwealth failed to present sufficient evidence that he committed the offense of leaving the scene after causing injury to another vehicle or property with respect to either the Bellevue Street or the Adams Street accident. He also argues that the admission of the full turret tape was error, and where the indictment charged the defendant with leaving the scene of both the Bellevue and the Adams Street accidents, the failure to give a specific unanimity instruction on the charge created a substantial risk of a miscarriage of justice that the jury did not reach an unanimous verdict. Because we conclude that the Commonwealth failed to set forth sufficient evidence to prove all the elements of the offense with respect to either accident, we need not reach the defendant's remaining arguments.

We review the denial of a motion for a required finding of not guilty under the Latimore standard, "viewing the evidence in the light most favorable to the Commonwealth and ask[ing] whether the evidence and inferences reasonably drawn therefrom were ‘sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged.’ " Commonwealth v. DeJesus, 99 Mass. App. Ct. 275, 282 (2021), quoting Commonwealth v. Squires, 476 Mass. 703, 708 (2017).

"To prove the charge of leaving the scene of an accident, the Commonwealth must prove beyond a reasonable doubt that (1) the defendant operated a motor vehicle ... ([2]) and collided with or caused injury in some other way to another vehicle or to property; ([3]) the defendant knew that he had collided with or caused injury in some other way to that other vehicle or property; and ([4]) after such collision or injury, the defendant did not stop and make known his name, address, and the registration number of his motor vehicle."

Commonwealth v. Platt, 440 Mass. 396, 400 n.5 (2003), abrogated by Commonwealth v. LeBlanc, 475 Mass. 820, 824-825 (2016) (no requirement that accident causing damage occurred on public way). To sustain a conviction for this offense, the Commonwealth must prove that the accident did, in fact, cause property damage. See Commonwealth v. Velasquez, 76 Mass. App. Ct. 697, 701 (2010). We address the sufficiency as to each accident identified in the indictment in turn.

a. Bellevue Street accident. The officers testified that the defendant's vehicle ...