Commonwealth v. Filoma

79 Mass.App.Ct. 16

943 N.E.2d 477

COMMONWEALTH

v.Stanley FILOMA.

No. 09–P–1396.

Appeals Court of Massachusetts, Suffolk.

Argued Sept. 15, 2010.Decided March 9, 2011.

Kevin S. Nixon, Boston, for the defendant.Zachary Hillman, Assistant District Attorney, for the Commonwealth.Present: DUFFLY, SIKORA, & MILKEY, JJ.¹SIKORA, J.

A Superior Court jury found the defendant, Stanley Filoma, guilty of involuntary manslaughter, G.L. c. 265, § 13; two counts of aggravated assault and battery by means of a dangerous weapon, an automobile, G.L. c. 265, § 15A( c )(i); and two counts of operating a motor vehicle under the influence of intoxicating liquor and causing serious bodily injury, G.L. c. 90, § 24L(2) (alcohol-related offenses).²

On appeal, the defendant argues that the Commonwealth failed to submit proper proof of impairment as an element essential for the two convictions of operating under the influence and causing serious bodily injury. He contends further that the jury's resulting finding of operating under the influence infected its separate findings of guilt of involuntary manslaughter and of aggravated assault and battery by means of a dangerous weapon. He complains finally that his trial counsel performed ineffectively because he did not request an instruction to the jury upon the defense of accident. For the following reasons, we reverse the judgments on the charges of operating under the influence of intoxicating liquor and causing serious bodily injury, and affirm the judgments on the charges of involuntary manslaughter and aggravated assault and battery by means of a dangerous weapon.

Factual background. The evidence permitted the jury to find the following facts. On February 1, 2004, the defendant watched a broadcast of the Super Bowl football game with some friends and family members at a relative's home in Canton. During the course of the game he consumed four to six beers. ³ After the game he drove his sport utility vehicle (SUV) to the Fenway area of Boston. He had previously lived in that neighborhood for approximately thirteen years. Then by telephone he made arrangements to return keys to the apartment of his former girlfriend, a resident of a building on Symphony Road in the Fenway area.

When he arrived in that neighborhood after 11 p.m., crowds of young people from the surrounding student housing population had poured into the streets ostensibly to celebrate the Super Bowl victory of the New England Patriots. The crowds congested the narrow streets in the area, including Hemenway Street, Symphony Road, and St. Stephen Street. Elements of the crowds became riotous; they lit small fires, damaged parked cars, and overturned others.

Formations of riot police moved down Hemenway Street and across its intersection with Symphony Road in efforts to break up mob clusters and to clear the streets. On Symphony Road, the police encountered several overturned cars, one in the middle of the road and two or more along its sides.

Amid this scene, the defendant attempted to reach the apartment of his former girlfriend by backing down Symphony Road against its one-way direction. His SUV traveled backward at a fast pace, estimated by witnesses to range between twenty to thirty-five miles per hour. The SUV had to stop at least two times in order to correct its direction and to avoid pedestrians in its path. Some of them yelled at it or jumped out of its path. The defendant had backed approximately halfway up Symphony Road when the obstacle of an overturned car forced him to stop.

At that point several police officers, who had observed the movement of the SUV and who had yelled for it to stop, ran toward it and called to the defendant to stop the vehicle and to get out. The defendant then shifted into drive and accelerated forward back down Symphony Road and away from the police. The SUV reached speeds estimated by witnesses to range between thirty and sixty miles per hour; pedestrians in the street scattered. Along Symphony Road the vehicle struck five persons. One, James Grabowski, died as a result of his injuries. A second, Jason Stackiewicz, suffered a severe head injury, a broken femur, and a fractured nose. A third, Joshua Bersey, suffered fractures to the left and right sides of his skull and a broken nose.⁴

At the end of Symphony Road, the defendant turned left against the one-way direction of St. Stephen Street, and then broke off through two public alleyways. He emerged from the second alleyway onto Westland Avenue, collided with a taxicab, and came to a stop.

Police officers approached and arrested him. One of the arresting officers detected a strong smell of alcohol from within the SUV. The same officer observed the defendant's eyes to be glassy and bloodshot, his clothes disheveled, and his gait unsteady. A second officer read the defendant his Miranda rights. Still at the scene, the defendant told the officers that he had drunk five or six beers that night. Because the defendant was walking with difficulty, the police assisted him to a patrol wagon. The patrol wagon brought him to a station house at approximately 12:15 a.m.

At the station, officers placed the defendant in a holding cell. At around 2:00 a.m., an officer asked the defendant to perform a field sobriety test. The defendant passed the test. The officer then asked the defendant whether he wished to take a breathalyzer test. The defendant declined. Two hours later, the defendant changed his mind and requested a breathalyzer test. At approximately 4:27 a.m., and again at 4:30 a.m., he provided two breath samples. Both samples measured .09 percent blood alcohol content by weight.

For the death of James Grabowski the jury found the defendant guilty of involuntary manslaughter; for the severe head injury of Jason Stackiewicz, they found the defendant guilty of aggravated assault and battery by means of a dangerous weapon, his automobile, and of operating under the influence of intoxicating liquor and causing serious bodily injury; and for the severe head injuries of Joshua Bersey, they again found the defendant guilty of aggravated assault and battery by means of a dangerous weapon, his automobile, and of operating under the influence of intoxicating liquor and causing serious bodily injury.

Analysis. The central contention of the defendant is that the admission of his breathalyzer results without explanatory testimony from an expert witness negates the verdicts upon the alcohol-related offenses and taints the findings of guilt upon the nonalcohol-related offenses. Because the defendant did not preserve these issues at trial, we examine them under the substantial risk of a miscarriage of justice standard; that is, we consider whether an error occurred and, if so, whether the error may have “materially influenced” the verdicts. Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). See Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999); Commonwealth v. Randolph, 438 Mass. 290, 297–298, 780 N.E.2d 58 (2002) (both cases emphasizing assessment of any error in the context of the entire trial).

1. Alcohol-related offenses. As the judge accurately instructed the jury, a verdict of guilt on the charges of operating under the influence of intoxicating liquor and causing serious bodily injury, G.L. c. 90, § 24L(2), required the Commonwealth to prove beyond a reasonable doubt that (1) the defendant had operated a motor vehicle, (2) upon a public way or place to which members of the public had access as invitees or licensees, (3) while he was under the influence of intoxicating liquor (the OUI element), (4) so as to cause serious bodily injury to a victim.⁵ Compare Commonwealth v. Flanagan, 76 Mass.App.Ct. 456, 463, 923 N.E.2d 101 (2010) ( G.L. c. 90, § 24L [1] ). The Commonwealth could establish the OUI element by either of two methods. By the “per se” method, it could introduce evidence of a breathalyzer reading of .08 percent or greater and request the judge to instruct the jury that, if they believed the accuracy of that measure, it conclusively established operation under the influence. Alternatively, by the method of proof by impaired operation, the prosecution could introduce percipient evidence of the defendant's appearance and conduct and a breathalyzer result of .08 percent or greater without a request for an instruction that such a reading, if believed, conclusively established operation under the influence. In the latter instance, however, the prosecution would be required to support the .08 percent result with expert testimony explaining the relationship between that measure and impaired operation. Commonwealth v. Colturi, 448 Mass. 809, 817–818, 864 N.E.2d 498 (2007). See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662 n. 2, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009).

In the present case, the Commonwealth did not request an instruction embodying the per se theory. Rather, the prosecutor requested the judge to instruct the jury that the .08 percent measure permitted the jury to draw the reasonable inference that the defendant had been operating under the influence. The Commonwealth had introduced the testimony of an expert witness, a toxicologist. However, his testimony focused primarily upon the process of retrograde extrapolation, a method for estimation of a person's blood alcohol content at points in time prior to the moment of the breathalyzer test. That expert provided the opinion that the defendant's readings of .09 at 4:27 a.m. and 4:30 a.m. enabled projections of higher amounts of .10 percent to .14 percent as of 2:15 a.m. and inferably higher amounts two and one-half hours earlier, at the time of the events on Symphony Road.

However, the expert never explained the fundamental connection between the amounts of blood alcohol content and the punishable condition of impairment: the diminished capacity to operate a motor vehicle safely. The omission of that...