A grand jury in Worcester County returned six indictments against each defendant for involuntary manslaughter, G. L. c. 265, § 13. The indictments were based on grand jury testimony concerning the defendants’ conduct in starting by accident and then failing to report a fire in the Worcester Cold Storage factory building (warehouse), which took the lives of six Worcester fire fighters. The defendants moved to dismiss the manslaughter indictments on grounds that (1) the evidence presented to the grand jury was insufficient to justify the return of indictments for involuntary manslaughter, see Commonwealth v. McCarthy,
The evidence presented to the grand jury, viewed in the light most favorable to the Commonwealth, indicated the following.
Approximately one month before the fire, a K-9 police officer with his dog responded to a complaint about the conditions in the warehouse and found signs of occupancy. The officer encountered an overwhelming odor of “rotting garbage, feces and urine.” One room contained “piles of garbage bags and numerous take-out food-type containers with half[-]eaten meals thrown all over the place. Next to a far wall were piles and piles of human waste.” A “makeshift bedroom” was discovered, containing a bed, clothes, and a closet with a box “overflowing with cat feces.” Unable to move without stepping on rotting garbage or feces, the police officer terminated the search out of concern for the health and safety of his dog.
On the afternoon of December 3, 1999, between 4:15 p.m. and 4:30 p.m„ the defendants had a physical altercation in their bedroom at the warehouse that resulted in the knocking over of a lit candle. A fire started and the defendants tried unsuccessfully to put the fire out with their feet and a pillow. The fire spread rapidly until everything in the room began to bum. The defendants searched for the cat and dog that lived in the
After leaving the warehouse, the defendants passed several open businesses and shopping mall stores where public telephones were available. Between 4 and 5 p.m., the general manager of Media Play store saw the defendants in his store and heard Julie Barnes say, “I can’t believe I lost all my stuff .... I lost everything. I don’t have anything. I lost all my stuff. I can’t believe I lost everything.” Thomas Levesque replied, “Don’t worry about it. Let’s go.” After leaving Media Play, the defendants walked around the mall until they left to get dinner. They returned to the mall where they first went back to Media Play to listen to more music, and then went to a Sports Authority store to get a job application. The defendants subsequently went to Regina Guthro’s house where Levesque remained until the next morning.
Levesque made three telephone calls from his cellular telephone the day of the fire. One call was made at approximately 6 a.m. The record is unclear whether the other calls, at 11:20 and 11:28 (made to the hotel where Barnes was staying), were made in the morning or the evening. The next telephone call was placed from Levesque’s cellular telephone four days after the fire.
The fire was not reported until 6:13 p.m. that evening, when an emergency caller reported the fire. Sergeant O’Keefe, an expert in arson and fire investigations, stated that “the significance of the delay in reporting [the fire] ha[d] a great deal to do with what kind of fire the Worcester Fire Department got to that day.” After arriving on the scene, fire fighters were informed that there might be homeless persons inside the warehouse. The fire fighters entered the warehouse in an effort to locate any persons that might have been inside, and to evaluate their tactics to combat the fire. It was during these efforts
A joint investigation by the Worcester fire department, the Massachusetts State police fire and explosion investigation section, and the United States Bureau of Alcohol, Tobacco and Firearms revealed that the warehouse fire, which originated in the defendant’s second-floor “makeshift” bedroom, was most likely accidental and the result of an open candle flame in contact with combustible material. Remnants of the defendants’ belongings, including plastic milk crates, an outline of a bed-type structure, the remains of a dog and cat, a candle, and a telephone calling card, were found among the debris.
Standard of review. Our inquiry here is limited to whether the evidence presented to the grand jury was sufficient to support the defendants’ indictments for involuntary manslaughter. Commonwealth v. Catalina,
Sufficiency of the evidence. Because Massachusetts has not defined manslaughter by statute, its elements are derived from the common law. Commonwealth v. Godin,
Duty to report the fire. Wanton or reckless conduct usually consists of an affirmative act “like driving an automobile or discharging a firearm,” Commonwealth v. Welansky,
The motion judge reasoned that because the Commonwealth has conceded that the fire was started accidentally, and because “Massachusetts courts have not found a duty to report or extinguish a fire where defendants’ failure to do so was merely negligent,” the defendants, as a matter of law, violated no duty. He concluded that one who negligently creates a risk of death or injury to others is free to walk away from that risk without taking steps to minimize the danger. We disagree.
Our law, both civil and criminal, imposes on people a duty to act reasonably. See Onofrio v. Department of Mental Health,
Although we have yet to recognize explicitly § 321 as a
Where a defendant’s failure to exercise reasonable care to prevent the risk he created is reckless and results in death, the defendant can be convicted of involuntary manslaughter. Public policy requires that “one who creates, by his own conduct . . . a grave risk of death or injury to others has a duty and obligation to alleviate the danger.” People v. Kazmarick, 99 Misc. 2d 1012, 1016 (N.Y. County Ct. 1979). We are not faced with the situation of a mere passerby who observes a fire and fails to alert authorities; the defendants started the fire and then increased the risk of harm from that fire by allowing it to bum
Whether a defendant has satisfied this duty will depend on the circumstances of the particular case and the steps that the defendant can reasonably be expected to take to minimize the risk. Although, in this case, the defendants apparently could not have successfully put out the fire, they could have given reasonable notice of the danger they created. It was for the grand jury (and later, the petit jury) to decide whether the defendants’ failure to take additional steps was reasonable, and if not, whether the defendants’ omission constituted wanton or reckless conduct.
Wanton or reckless conduct. A defendant’s omission when there is a duty to act can constitute manslaughter if the omission is wanton or reckless. Commonwealth v. Welansky, supra at 397. The words “wanton” and “reckless” constitute conduct that is “different in kind” than negligence or gross negligence. Id. at 400. It has been defined as “intentional conduct . . . involving] a high degree of likelihood that substantial harm
The judge, after reviewing the evidence presented to the grand jury, concluded that “the pertinent evidence would not warrant a finding of probable cause that the defendants’ failure to report the fire rose to the elevated standard of a high degree of likelihood that substantial harm would result.” We disagree. When testing the sufficiency of the evidence to sustain a grand jury indictment, we need not determine that the evidence would allow a reasonable person to find the conduct wanton or reckless beyond a reasonable doubt. As discussed above, we need only find the evidence sufficient for a grand jury to find probable cause that the crime charged has been committed by these defendants. Commonwealth v. Catalina, supra at 790. Whether certain behavior is properly categorized as reckless or negligent is ordinarily left for the jury. Dixon v. New York, N.H. & H.R.R.,
Although it is true that recklessness must involve an intentional act or omission, a finding of recklessness is grounded in intent to engage in the reckless conduct, and not intent to bring about the harmful result. Commonwealth v. Bouvier,
The Commonwealth has presented sufficient evidence to allow a grand jury to conclude that the defendants’ choice not to report the fire was intentional and reckless. The following testimony was sufficient in this regard: the defendants attempted to put out the fire and were unsuccessful, thus demonstrating they were cognizant of the fire’s rapid spread; they observed the fire consume their possessions over a short period of time; they were forced to abandon their attempts to fescue their pets, again evidencing their awareness of the peril posed by the fire’s rapid spread; they possessed a cellular telephone and passed several open stores after their exit from the warehouse, thus allowing the grand jury to infer that the defendants had multiple opportunities and the means to call for help if they chose to do so. Further, the testimony that the defendants went shopping and calmly ate a meal after leaving the building refutes any suggestion that panic might explain a failure to report the fire. Finally, the fact that the defendants may have faced criminal liability for trespass had they informed authorities that they had been living in the warehouse provided a motive for their failure to report the fire.
The defendants also assert that their conduct could not have been reckless because it was unforeseeable that such grievous harm would result to the fire fighters who responded. The Superior Court judge agreed, noting that fire fighters ordinarily do not lose their lives in the course of fighting a fire, and that even the fire fighters themselves failed to appreciate the gravity of the danger.
We have previously held that an arsonist can be charged with the murder of a fire fighter who responded to the resulting fire if the defendant’s conduct is “the efficient cause, the cause that necessarily sets in operation the factors which caused the death.” Commonwealth v. Rhoades,
The defendants argue that certain actions by the fire department contributed to the fire fighters’ deaths, such as the fire fighters’ inability to navigate the maze-like building, and the fire fighters’ ignorance of the true extent of the danger posed by the fire. However, “the intervening conduct of a third party will relieve a defendant of culpability only if such an intervening response was not reasonably foreseeable.” Commonwealth v. Askew,
The integrity of the grand jury proceedings. The defendants claim that the grand jury proceeding was impaired by the Com
The Commonwealth’s argument fails because we have held that “on appeal [an appellate court] may consider any ground apparent on the record that supports the result reached in the lower court.” Gabbidon v. King,
The defendants allege three flaws in the presentation of the evidence before the grand jury: (1) the Commonwealth failed to present the exculpatory report of Deputy District Chief Michael McNamee of the Worcester fire department; (2) the testimony of Sergeant O’Keefe misled the jury to believe that a cellular telephone call was placed after the fire when it was in fact placed before the fire; and (3) the testimony erroneously suggested that the fire fighters rushed into the building to look for the defendants. We reject the defendants’ claims.
The Commonwealth does not have an obligation to present all potentially exculpatory evidence to the grand jury. Com
In a report to the Worcester fire department board of inquiry, Chief McNamee stated that conditions at the warehouse deteriorated rapidly in a manner unanticipated by the fire fighters. The prosecutor did not present this report to the grand jury. The Commonwealth’s omission was not sufficiently material that it would have probably affected the outcome. Id. The fact that the fire fighters were surprised by how rapidly the fire spread and how quickly conditions became uncontrollable is not related to the defendants’ culpability. The defendants were obliged to notify the authorities of the fire regardless of their ability to predict the extent of the fire.
Sergeant O’Keefe testified that cellular telephone biffing records showed three calls from Levesque’s cellular telephone on the day of the fire: one at 6 in the morning, one at 11:20 and one at 11:28. The defendants fled the burning building between 4 p.m. and 5 p.m. that afternoon. The Sergeant did not specify whether the latter two calls were made in the morning or evening. Although the presentation of the evidence was not entirely clear, we do not believe that any confusion would have affected the indictments. Whether the calls were placed in the morning or evening was not relevant. The evidence was introduced to show that the defendants had the capacity and the means to make a telephone call. Regardless of whether the telephone calls in question were placed at 11 a.m. or 11 p.m., the record showed an outgoing call from the same cellular telephone four days after the fire. It is thus apparent that the grand jury could infer that the cellular telephone was working on the day of the fire, and that the defendants had the telephone with them when they fled the warehouse. From this information, the grand jny could have concluded that the defendants had access to a ellular telephone during the time in question.
In addition, the defendants attack the form of the indictment as insufficient to inform the grand jurors of the elements of the crime. Although the. defendants did not raise this issue below, we address their argument. General Laws c. 277, § 79, provides the proposed forms for manslaughter indictments: “That A.B. did assault and beat C.D., and by such assault and beating did kill C.D.” However, the statute suggests a different form where neglect of a legal duty is the basis for a charge: “That A.B. being under the legal duty, and being of sufficient ability to provide C.D., who was his spouse, with sufficient food and drink for sustenance and maintenance, did neglect and refuse to do so; by reason whereof said C.D. being unable to provide sufficient food and drink, became and was mortally sick and died.” Id. Although the charges against the defendants were based on the neglect of a legal duty, the indictments alleged that the defendants “did assault and beat [the fire fighters], and by such assault and beating did kill the said [fire fighters].”
The form of an indictment is sufficient where it gives the defendant reasonable knowledge of the crime with which he is being charged. Commonwealth v. Welansky,
Further, we have examined the grand jury minutes and
Conclusion. The order allowing the defendants’ motions to dismiss is reversed. We remand the case to the Superior Court for further proceedings consistent with this opinion.
So ordered.
Notes
Three witnesses testified before the grand jury: Detectives Michael Mulvey and Michael Angelo Sabatalo of the Worcester police department and Sergeant Robert F. O’Keefe of the Massachusetts State police. Detective Mulvey recited information about the victims from autopsy reports. Detective Sabatalo related his own observations on arrival at the fire scene, read a police
The State police apparently went to Guthro’s house on the night of the fire in an attempt to contact Levesque. Although Levesque told Guthro that he heard the police at the door during the night, no one answered the door.
A New York trial court judge found a duty to act under similar circumstances. In People v. Kazmarick, 99 Misc. 2d 1012 (N.Y. County Ct. 1979), the judge held that a defendant who accidently started a fire by throwing a match in the hallway of an occupied apartment building could be found guilty of manslaughter in the second degree for his failure to report the fire. Id. at 1015-1017. Manslaughter in the second degree is defined by statute in New York as “recklessly causing] the death of another person.” N.Y. Penal Law § 125.15(1) (McKinney 1997). The judge held that “one who creates, by his own conduct, whether criminal or non-criminal conduct, a grave risk of death or injury to others has a duty and obligation to alleviate the danger, or, at the very least, to prevent the injury or death by alerting the probable victims to the danger.” Id. at 1016. Although Massachusetts does not define manslaughter by statute, our definition of manslaughter is laid out by the common law and mirrors New York’s statutory definition. Commonwealth v. Catalina,
The defendants assert that imposing a duty to report the fire in this case would violate their right against self-incrimination under the Fifth Amendment to the United States Constitution because the defendants were present in the warehouse as trespassers, and reporting the fire could have exposed them to criminal charges. The defendants could have brought the fire to the attention of authorities without disclosing their status as trespassers, and a duty may exist even if such disclosure were necessary. There is no merit to the defendants’ additional argument that an obligation to report the fire would constitute selective prosecution because the defendants are homeless.
The evidence the defendants rely on in asserting that even the fire fighters themselves could not appreciate the risk of the fire was not presented to the grand jury. Therefore, we cannot properly consider it in determining the sufficiency of the indictments.
The defendants contest O’Keefe’s ability to give such an opinion “[g]iven his lack of personal knowledge and his unfamiliarity with the crucial details of the fire . . . .” However, O’Keefe described his investigation and qualifications in detail to the grand jury, and explained that he arrived at the scene of the fire after the initial firefighting efforts had already begun. Thus, the grand jury were aware of the knowledge on which he based his testimony.