After trial in a District Court, a six-person jury found the defendant guilty of homicide by motor vehicle, G. L. c. 90, § 24G, and leaving the scene of an accident without making himself known, G. L. c. 90, § 24(2)(a). On appeal, he contends (1) that his motions for required findings of not guilty were improperly denied; (2) that various evidentiary errors were made; (3) that certain requests for jury instructions were improperly refused; and (4) that the prosecutor’s final argument contained prejudicial remarks. We reject these contentions and affirm the convictions.
Since the defendant challenges the sufficiency of the evidence supporting his convictions, we review the evidence in the light most favorable to the Commonwealth.
Commonwealth
v.
Reid,
As Miller approached the car ahead, he observed that it was “swerving” slowly “[f]rom the edge of the breakdown lane, back over the center line” of the road. He decided to pass the car but as he pulled closer, he noticed the “upper torso” of a human body “extending from the right [front] side of the car.” The body was apparently impaled on the car in a position “with the . . . right arm extended over the head.” Miller remained behind the car briefly to be certain that
After about a minute, Miller resumed driving in an effort to catch up with the car carrying the body. In a few moments, he saw it ahead of another vehicle which had intervened, and observed that it was “still [traveling] with a bit of swerving.” The intervening car continued north on Route 8, and the car carrying the body made a right turn onto Liberty Street in Adams. There, Miller saw the body fall off the car and onto the road. The car then ran over the body and drove away. 1
Miller stopped his car and approached the body lying in the road. He noticed that “the body sort of moved, sort of made a wheezing sound.” The victim died shortly thereafter. There was medical evidence that his death was caused by multiple traumatic injuries of the kind that would be sustained by someone who had been struck by a moving vehicle and dragged along for some distance.
An Adams police officer testified that about 3:10 a.m. that night he was assisting the operator of a disabled vehicle on Route 8 in Adams. He had parked his cruiser in the northbound lane, about two hundred feet north of the Cheshire town line, and had left its lights flashing. The officer saw a car pass the cruiser going north and noticed that the car “was dragging something,” although he could not see what it was. About five minutes later, the officer was called to Liberty Street in Adams, where he observed the body of the victim. He then drove south on Route 8, looking for evidence connecting the victim’s death with the car he had seen shortly before.
About 6:45 a.m. police officers cruising the streets of Adams observed a car which was missing a portion of its grille on the right side, and which also had a dent on the right front side of the hood. The car was parked on Cherry Street near the home of the defendant. It was a light green 1977 Plymouth Volare with a vinyl roof, and was registered to the defendant’s wife. The car was subsequently identified by witnesses Miller and Angelí as the car which they had seen on the night of the incident. An expert witness was able to reconstruct 90 to 95 % of the missing portion of this car’s grille from the broken pieces of plastic found on Route 8 in Cheshire. In addition, analysis of fibers taken from the right front fender and tire of this car showed them to be consistent with fibers of the clothing worn by the victim. 3
1. The defendant argues first that the evidence was insufficient to warrant a finding that he was the person who operated the car, and, as a consequence, that the judge erred in denying his motions for required findings of not guilty. Mass.R.Crim.P. 25,
We believe that the evidence presented here was sufficient to permit a finding that the defendant was driving the car that struck the victim. The defendant’s own statements to police show that after consuming some alcohol, the defendant drove the car on Route 8 through Cheshire and Adams; that the car was under his exclusive control until at least 11:00 p.m.; that, as far as he knew, no one else had driven it that night, see
Commonwealth v. Henry, supra;
that he left the car locked when he parked it; and that he had the only keys to the car.
6
See
Commonwealth v. Rand,
2. The defendant argues next that the judge erred in denying his motion for a required finding of not guilty on the vehicular homicide charge because the language of that complaint limited the Commonwealth to proving that he drove negligently at the place in Cheshire where the victim was struck, 9 and because the evidence did not permit the inference that he drove negligently there or anywhere else in Cheshire. Carrying the argument one step further, the defendant contends that it was error to admit evidence of negligent operation in Adams to prove the charge as framed.
“In general, a crime must be proved as charged and must be charged as proved. But a defendant is not to be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense. G. L. c. 277, § 35. See
Commonwealth
v.
Clark,
Here, the complaint correctly stated the four essential elements of the crime of vehicular homicide. It may be true that the words “collide with,” as charged in the complaint, suggest a theory of negligent operation at the point of impact in Cheshire. However, G. L. c. 277, § 20, provides that the “place of the commission of the crime need not be alleged unless it is an essential element thereof.” Although it is essential that a vehicular homicide occur “upon a way or in a place to which members of the public have access,”
Commonwealth
v.
Jones, supra
at 393, that element was alleged in the complaint and the defendant stipulated to its presence in the pretrial conference report. Beyond that requirement, the offense appears to have “no essential connection with the place in which it is committed.”
Commonwealth
v.
Parrotta,
While there was no direct proof of negligence at the point of impact, the evidence permitted a finding that the defend
3. The judge first excluded, and then admitted, some evidence regarding the existence of a crosswalk near the point on Route 8 in Cheshire where the victim was struck. Ultimately, following a voir dire on the matter, the judge (1) declined to take further evidence regarding the crosswalks; (2) declined to admit in evidence certain regulations of the Department of Public Works dealing with the use of crosswalks by pedestrians, 720 Code Mass. Regs. 9.01 (5), (17), (20) & (34), and 9.09 (1), (4) & (5); (3) refused to give three instructions requested by the defendant concerning the victim’s failure to exercise due care (by his assumed failure to cross Route 8 in a crosswalk); and (4) instructed the jury to disregard the initial evidence admitted regarding the crosswalks. The defendant argues that these rulings were error. We disagree.
The defendant concedes that any “negligence of the deceased was not an excuse to the defendant,” and “would not
We recognize “[o]f course, [that] all the facts connected with the incident were pertinent . . . [and that t]he actual conduct of both parties at the time might be shown.”
Commonwealth
v.
Guillemette, supra
at 347. On this basis, the judge could properly have admitted the evidence offered by the defendant, which tended to show that the victim was not within a crosswalk at the time he was struck by the car.
13
This evidence, however, was only of collateral significance with respect to the culpability of the defendant’s conduct, and “the extent to which collateral matters shall be explored is in the discretion of the judge.”
Commonwealth
v.
Doherty,
4. The oral and written statements which the defendant gave the police on the morning following the accident were properly admitted in evidence. By these statements, the defendant placed himself near the scene of the accident, in the car that struck the victim, at a time not long before it occurred. Cf.
Commonwealth
v.
Grieco,
There also was no error in the judge’s instructions with respect to these statements. The judge referred to them as “alleged admission[s],” and left it to the jury to decide whether, in fact, they constituted admissions, see
Commonwealth
v.
Lucas,
5. We have addressed the defendant’s major contentions on the appeal; those remaining raise nothing which merits further discussion. There is no basis for concluding that the judge’s rulings, taken in the aggregate, denied the defendant a fair trial.
Judgments affirmed.
Notes
Two other witnesses observed this car on that night. Lynn Pilot, a passenger in Miller’s car, testified that she also saw a car traveling on Route 8 with a human body protruding from its right front side, and that she also saw the body fall off the car when it turned onto Liberty Street. Another witness, George Angeli, testified that about 3:00 a.m. he was walking toward his car, which was parked on Route 8 in Adams, when he saw a car travelling north at about five or ten miles per hour. He testified that this car was missing a portion of its front grille on the right side, and that it was making a “loud thumping noise.” Angeli lost sight of the car, however, as it turned onto Liberty Street.
The owner of the bar testified that the victim had been drinking there for about an hour that night, and had left about midnight. There was also evidence that the portion of Route 8 facing the bar is a paved highway with two lanes, divided by solid double lines. This portion of the road is straight, and is well lighted at night. It has breakdown lanes and sidewalks on each side, and two crosswalks nearby. The surrounding area is developed and includes several residences and small stores. On the night of the accident, the road was wet but free from defects. The distance along Route 8 from the bar to the Adams town line is one to two miles.
Witnesses Miller and Pilot originally told police that the car they saw was “reddish-brown” in color. Miller further described the car as a Dodge or Chevrolet with an ordinary metal roof and a damaged left rear bumper. Roth of these witnesses also told police, however, that they were not sure of these descriptions. In addition, witness Angelí originally told police that the car he saw was green, and was a “Chrysler product.” Further, the officer testified that the car he saw on Route 8 was light in color, and had a vinyl roof. The defendant seems to argue that these identifications were so unreliable that they should have been rejected as a matter of law. It is fundamental, however, that “once a conflict in the evidence is raised, it is ‘for the jury to sort out and is not material to the directed ver
By this route, the defendant would have had to drive through Cheshire, which is located north of Pittsfield and south of Adams.
Later that morning, the defendant gave Adams police a written statement which included basically the same information as he had given the trooper. In the written statement, however, the defendant added the fact that after he parked the car, he “locked the vehicle and put the keys in . . . [his] pants pocket.”
The defendant argues that the judge erred in denying his motion to strike the State trooper’s testimony, on direct and redirect examination, that he recalled the defendant as saying that “he was the only one that had keys” to the car. He contends that the trooper repudiated this testimony in the course of cross- and recross-examination. He further argues that, if this testimony had been struck, the evidence would have been insufficient to permit a finding that the defendant was the driver of the car. Defense counsel’s questioning of the trooper on this issue was somewhat confusing, and left his testimony subject to differing interpretations, including the interpretation that he had no specific memory of any statement made by the defendant regarding the keys to the car. Upon review of the trooper’s entire testimony, however, it is our view that he was never clearly “asked to make a definite choice between his contradictory statements.”
Donovan
v.
Johnson,
Accordingly, we reject the defendant’s collateral contention that it was improper for the prosecutor to argue, in closing, that this statement should be disbelieved and treated as evidence of guilt. In the present circumstances, these comments constituted “fair inferences from the evidence.”
Commonwealth
v.
Earltop,
The defendant’s final contention on this issue is that the judge erred in declining to give a supplementary instruction which he requested. That instruction would have specified that the jury could not infer that the defendant was the driver of the car from the fact that it was registered to his wife. Although such an instruction would have been proper, cf. Commonwealth v. Shea, supra at 712, we are aware of no authority which required that it be given. Since the judge’s previous instructions on inferences and burden of proof were adequate, we cannot say that his failure to give the requested instruction constituted reversible error.
The complaint alleged, in pertinent part, that on September 29, 1979, the defendant, “at Cheshire in . . . [Berkshire] County did operate a motor vehicle in and upon the public ways of the Commonwealth, to wit: Route 8 — South Street, recklessly or negligently so that the lives and safety of the public might be endangered, and by such operation did collide with . . . [the victim], causing the death of said . . . [victim], in violation of [c. 90, § 24G,] of the General Laws.”
The court’s territorial jurisdiction over this offense was sufficiently alleged by the “name of the county and court in the caption” of the com
The defendant’s argument that he was prejudiced by the misleading language of the complaint is unconvincing. Pretrial discovery appears to have been ample, and should have put the defendant on notice that the Commonwealth’s theory of the offense included negligent operation of the car both in Cheshire and Adams. The defendant has never claimed merely that he was not negligent at the point of impact, or elsewhere in Cheshire. Rather, he has consistently defended on the ground that he was not driving the car at all at the time when the victim was struck. It appears, then, that the defendant was not prejudiced by any ambiguity as to the precise location at which the offense was alleged to have occurred. See
Commonwealth
v.
Jones,
For that reason, it was also proper for the prosecutor to argue the inferences raised by this evidence. See note 7,
supra.
The defendant argues that one portion of the prosecutor’s argument exceeded the evidence by suggesting that one or more witnesses actually saw the collision at the point of impact. To the extent that this passage can be so construed, we note that the judge immediately ruled, apparently within the hearing of the jury, that it was for the jury to decide whether the evidence warranted that inference. See
Commonwealth
v.
Liebman,
At the-voir dire, the defendant presented evidence that the center of the area in which the broken pieces of grille were found was about 150 feet north of one crosswalk and about 250 to 300 feet south of another crosswalk.