Commonwealth v. Driscoll
AC 15-P-1689
| Mass. App. Ct. | May 9, 2017Background
- On November 11, 2012, police found the defendant's 2001 Ford Explorer crashed into a stone wall on Allandale Road; the vehicle was abandoned and extensively damaged and later deemed a total loss (~$5,700).
- The defendant reported the incident to his insurer, Commerce Insurance, claiming he hit a "Bison or Moose," that got up and ran away; no animal, blood, hair, or other physical evidence of an animal strike was found.
- Commerce records and expert testimony (accident reconstruction and veterinary exam of nearby animals) contradicted the animal-strike account; jury could infer defendant knew he had comprehensive but not collision coverage and that an animal strike would make the loss coverable.
- Defendant was charged with motor vehicle insurance fraud under G. L. c. 266, § 111B, and attempted larceny over $250 under G. L. c. 274, § 6; a jury convicted on both counts.
- On appeal the defendant challenged admission of the coverage selections page and accident report (hearsay/business records and best-evidence issues) and argued insufficiency of evidence for both counts.
Issues
| Issue | Commonwealth's Argument | Driscoll's Argument | Held |
|---|---|---|---|
| Admissibility of coverage selections page under business-records exception | Tucker authenticated the copy, explained Commerce’s recordkeeping, and supplied foundation; document is a business record | Copy was not the original; attestation/authentication was insufficient; foundation lacking | Admitted: court found Tucker a qualified witness, authentication and foundation adequate under G. L. c. 233, § 78 and § 79A |
| Application of best-evidence rule to coverage selections and other insurance records | Business-records exception makes best-evidence rule non-determinative; admissible despite being copies | Originals not produced; no sufficient excuse for nonproduction | No reversible error: coverage selections admissible as business record; testimony about policy content did not create miscarriage of justice |
| Admissibility/authentication of accident report (defendant’s statement) | Defendant’s written statement was admissible as party-opponent statement and testimony also established he reported striking an animal | Report insufficiently authenticated and violated best-evidence rule | Even if admission of the report was error, other testimony conveyed same facts; error was harmless |
| Sufficiency of evidence: motor vehicle insurance fraud | Evidence established claim under policy, intent to deceive, presentation of false statement materially affecting claim | Evidence insufficient to prove knowledge/intent and materiality | Affirmed: jury could infer intent, falsity, and materiality beyond a reasonable doubt |
| Sufficiency/instruction: attempted larceny over $250 | Jury convicted based on case facts | Jury instructions were flawed; Commonwealth’s theory unclear | Reversed: trial judge’s larceny instruction covered only asportation theory not supported by evidence; conviction set aside |
Key Cases Cited
- L.L. v. Commonwealth, 470 Mass. 169 (interpretive standard for abuse of discretion)
- Wingate v. Emery Air Freight Corp., 385 Mass. 402 (business records presumed reliable)
- Beal Bank, SSB v. Eurich, 444 Mass. 813 (requirements for business-records admissibility)
- Commonwealth v. Deramo, 436 Mass. 40 (attestation/certification principles for copies of records)
- Commonwealth v. Ocasio, 434 Mass. 1 (best-evidence rule and excuse for nonproduction)
- Commonwealth v. Jerome, 56 Mass. App. Ct. 726 (elements of motor vehicle insurance fraud under G. L. c. 266, § 111B)
- Commonwealth v. Platt, 440 Mass. 396 (standard for reviewing denial of required finding)