Commonwealth v. ProvostCommonwealth v. Provost
- Reporters:
- , ,
- Before:
- Greaney
After trial before a jury of six in a District Court, the defendant was convicted of three counts of vehicular homicide,
The evidence presented to the judge tended to establish the following facts. On December 8, 1979, at approximately 11:00 p.m. , two vehicles were involved in a collision on Route 122 in Rutland. Upon arriving at the scene, the officer learned that the sole occupant of one vehicle, a Ford van, had been killed. He also determined that the defendant was the driver of the other vehicle, a Chevrolet sedan, and that the defendant had a “strong odor of alcohol on his breath.”
While at the scene, the officer commenced his investigation of the collision. This included the measurement of skid marks, which were found on the “wrong side of the road,” and several gouges which appeared in the surface of the southbound lane. The officer also noted the positions in which the two vehicles had come to rest after the collision. Other than the occupants of the vehicles, there were no witnesses to the accident.
On December 21, 1979, the officer called the hospital and received permission to talk to both men. The officer then attempted to interview the defendant and the passenger, but neither had any recollection of the accident or the events which preceded it. On December 26, 1979, the officer spoke with the defendant’s doctor but was advised that his condition was unchanged from the time of the previous interviews and that he still suffered total amnesia concerning the accident.
On December 28, 1979, the twentieth day after the accident, the officer spoke with one Debra Lamb, the sister of the person who had been driving the other vehicle in the accident. She told him that her brother had driven her to Warwick between 9:30 and 10:30 p.m. that evening. The officer testified that since Warwick is north of Rutland, the scene of the accident, this information “confirmed” that the van had been traveling south on Route 122, although he had “suspected” as much, and was not “surprised” by this information. ”
Following the interview with Lamb, the officer was off-duty for a week. During that time, however, he “put the whole investigation together,” compiling all the information he had gathered, and making diagrams of the collision as he had reconstructed it. The officer concluded that the defendant had been traveling in a northerly direction, that his car had crossed the dividing line and struck the van in the southbound lane, and that the defendant was therefore
The defendant correctly points out that since he was never placed under arrest,
The defendant views the quoted exception as inapplicable here, arguing that the officer had sufficient information to issue citations by the end of the night of the accident and that his subsequent investigation, including the interview with Lamb, was unnecessary. We disagree. Based on the facts and testimony summarized above, we do not think that the officer’s measurements and observations at the scene permitted a proper reconstruction of the accident. From that evidence, the officer could not even ascertain with certainty which vehicle had been traveling in which lane, much less how the accident actually occurred, or who, if anyone, was at fault.
Thus, although the officer apparently formed a tentative theory regarding these questions, and also learned the identity of the defendant, the information initially available left legitimate doubt as to the “identity of the
offender”
(emphasis supplied), as well as the “nature of the violation[s]” which any such offender had committed. In these circumstances, and in view of the seriousness of the possible charges involved, we think that a prudent investigating officer could reasonably have deferred any final conclusion regarding the cause of the collision pending more definite information of the sort which was, in fact, later received from
The defendant argues, however, that no adequate justification was shown for the additional seven-day delay following the interview with Lamb. He points out that in Commonwealth v. Pappas, 384 Mass. 428 (1981), the most recent case on this subject (in which convictions for offenses similar to these were upheld), the defendant was arrested only forty minutes after the accident occurred and given a citation seven hours later. He also points out that no appellate decision has yet condoned a twenty-seven day delay in the issuance of a citation, and that Commonwealth v. Mullins, 367 Mass. 733 (1975), held that a complaint should have been dismissed because the delivery of the citation nineteen days after the offense was not supported by any circumstances in justification.
The several purposes of G. L. c. 90C, commonly known as the “no-fix” law, were reviewed in
Pappas.
There, the court pointed out that there are two concerns which underlie the present citation requirements: (1) to prevent “manipulation” of traffic tickets, and (2) to ensure “prompt and definite notice” of the violation to the offender. 384 Mass. at 431. As to the latter concern, however, the court held that “[t)he risk that a putative defendant will remain unaware of a transient traffic offence and will be unprepared to defend against it. . .
has little relevance when applied to more serious crimes.
See
Commonwealth
v.
Giannino,
[371 Mass. 700, 703-704 (1977)];
Commonwealth
v.
Gorman, supra
at 358 .... It is inconceivable that [a] defendant would be unaware of the seriousness of a
We do not think it useful to engage in a comparison of the time periods involved in the different cases under the statute. Each case must be decided on its own peculiar facts. Nor do we see anything in the facts of the Mullins case which would tend to control the result here. 2 There is simply no comparability between the investigation required by a serious automobile accident to which there are no eyewitnesses and in which multiple deaths are involved, and the virtually instantaneous recognition of a violation that occurs in a garden variety motor vehicle offense such as speeding. In the former, careful and painstaking accident reconstruction is often necessary before the police can obtain the root facts upon which to base a reasoned decision whether citations should be issued and criminal complaints sought.
For these reasons, the defendant’s motion to dismiss the complaints against him was properly denied.
Judgments affirmed.
Notes
Although the officer testified that he “suspected” that the van had been traveling south and that this fact, once established, led him to conclude that the defendant had been at fault in allowing his car to cross into the southbound lane, he also testified that it was not until he spoke with Lamb that he “knew it” with any certainty.
In Mullins the delay in issuing a citation for speeding was occasioned by the police officer’s belief that a registry inspector who also observed the violation had issued the citation. None of the three exceptions to § 2 was applicable. First, the defendant was stopped at the scene of the accident and his identity established beyond question by the police officer and the registry inspector. Second, the Commonwealth offered no facts to support a finding that additional time was reasonably necessary to determine the nature of the violation. Third, the only evidence why no citation was issued at the scene “at best [showed] an unexplained mistake.” 367 Mass. at 736.
Although “the defense made available by § 2 is not limited to those who have been prejudiced by delay,” Commonwealth v. Mullins, 367 Mass. at 735, we note that there is no evidence that the defendant was prejudiced by the additional seven-day delay here.
The preparation of a diagram and other investigative materials might also have importance if the defendant chose to exercise his right to seek a hearing prior to the issuance of process. See