Commonwealth v. Burnham , 90 Mass. App. Ct. 483 ( 2016 )

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15-P-826 Appeals Court
COMMONWEALTH vs. CHRISTOPHER J. BURNHAM.
No. 15-P-826.
Hampshire. April 13, 2016. - October 13, 2016.
Present: Wolohojian, Agnes, & Neyman, JJ.
Motor Vehicle, Operating under the influence, Citation for
violation of motor vehicle law. Practice, Criminal,
Citation for violation of motor vehicle laws, Dismissal.
Indictment found and returned in the Superior Court
Department on May 6, 2014.
A motion to dismiss was heard by Mary-Lou Rup, J.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
James Petersen for the defendant.
NEYMAN, J. The defendant, Christopher J. Burnham, was
involved in a single-car accident, and indicted for operating a
motor vehicle while under the influence of intoxicating liquor
(OUI), subsequent offense. The defendant filed a motion to
dismiss the charge, claiming that the citation for OUI was not
2
issued in compliance with G. L. c. 90C, § 2. Following an
evidentiary hearing, a Superior Court judge allowed the motion.
The sole issue on appeal is whether the issuance of a
citation to the defendant, more than four and one-half months
after the police officers had concluded their investigation,
violated the provisions of G. L. c. 90C, § 2, and mandated
dismissal of the indictment. Where the defendant did not have
prompt and definite notice of the offense for which he was
charged, and the delay in issuing the citation was not justified
under any of the exceptions to the statutory requirement to
provide the citation at the time and place of the violation,
dismissal was warranted.
Background. We summarize the judge's findings.1 In the
early morning of November 24, 2013, Officers Kyle Gribi and Eric
Alexander of the Easthampton police department arrived at the
scene of a single-car accident. Officer Gribi, trained as an
emergency medical technician, observed and attended to the
driver (the defendant), who "was unresponsive, but later
regained consciousness." Officer Gribi stabilized the
defendant's cervical spine and maintained his airway.
Approximately ten minutes after the officers' arrival, an
ambulance arrived and took the defendant to Baystate Medical
1
Neither party on appeal challenges the judge's factual
findings, which we accept "absent clear error." Commonwealth v.
Eckert, 431 Mass. 591, 592 (2000).
3
Center (Baystate). The officers did not accompany the defendant
to the hospital. The judge credited testimony that "neither
officer detected any indicia of the defendant being intoxicated
during their investigation of the scene."
While at the scene, Officer Alexander learned that the
defendant's license had been suspended, and Officer Gribi
subsequently issued a citation against the defendant for
"operating after suspension" and a "marked lanes" violation (the
Easthampton charges).2 The officers' investigation "ended in
good faith when Officer Gribi issued and caused to be mailed to
the defendant a citation for marked lanes violation."3
Three months later, on February 23, 2014, the defendant was
arrested in Northampton for an unrelated incident and charged
with OUI. Upon reviewing the Northampton OUI charge and
inspecting the defendant's probation record, the prosecutor
learned of the Easthampton charges still pending in Northampton
District Court. The prosecutor initiated an independent
investigation into the Easthampton charges and obtained the
defendant's medical records from Baystate, relating to the
treatment he received as a result of the earlier Easthampton
2
The citation is dated November 24, 2013, the date of the
accident.
3
At the hearing on the motion to dismiss, the officers
testified that no further investigation was conducted after the
accident scene had cleared and the citation for operating after
suspension and a marked lanes violation had issued.
4
incident.4 The medical records included a toxicology report that
revealed that the defendant had an "ethanol level on the night
of the Easthampton incident [that] translated to a blood alcohol
concentration of 0.18 [per cent]." On April 16, 2014, the
prosecutor relayed this information to Officer Gribi and
instructed him to issue a citation for OUI to the defendant.
That same day, Officer Gribi issued and delivered a citation for
OUI to the defendant at his home.
Discussion. 1. Statutory framework. General Laws c. 90C,
§ 2, as appearing in St. 1985, c. 794, § 3, commonly known as
the "no-fix" law, provides in relevant part:
"any police officer assigned to traffic enforcement duty
shall . . . record the occurrence of automobile law
violations upon a citation, filling out the citation and
each copy thereof as soon as possible . . . . A failure to
give a copy of the citation to the violator at the time and
place of the violation shall constitute a defense in any
court proceeding for such violation, except where the
violator could not have been stopped or where additional
time was reasonably necessary to determine the nature of
the violation or the identity of the violator, or where the
court finds that a circumstance, not inconsistent with the
purpose of this section to create a uniform, simplified and
non-criminal method for disposing of automobile law
violations, justifies the failure" (emphasis added).
Thus, the statute mandates that citations be delivered to
an alleged offender at the time and place of the violation,
4
The prosecutor obtained the defendant's medical records by
filing a motion in the Superior Court on March 7, 2014,
requesting production of the records for presentation to a grand
jury. On March 10, 2014, a Superior Court judge allowed the
motion, and on April 3, 2014, Baystate delivered the records to
the Superior Court clerk's office.
5
subject to three exceptions. Where, as here, the citation was
not delivered at the accident scene, the Commonwealth bears the
burden to establish the applicability of an exception. See
Commonwealth v. Correia, 83 Mass. App. Ct. 780, 783 (2013). The
Commonwealth asserts that the second and third exceptions
applied to the present case and justified the delayed delivery.
We analyze both, in turn, keeping in mind the two fundamental
purposes of the statute: (1) prevention of "manipulation and
misuse" of citations; and (2) "prompt and definite notice" to
the alleged violator of the nature of the offense. Commonwealth
v. Pappas, 384 Mass. 428, 431 (1981). In addition, there is no
bright-line rule to ascertain whether a particular delay in
issuing a citation is justified. Rather, "[e]ach case must be
decided on its own peculiar facts." Commonwealth v. Provost, 12
Mass. App. Ct. 479, 484 (1981).
2. The second exception. The second exception to the
requirements of G. L. c. 90C, § 2, excuses delayed delivery of a
citation where "additional time was reasonably necessary to
determine the nature of the violation." Pappas, supra. The
Commonwealth contends that neither officer detected any indicia
of intoxication from the defendant; thus, the nature of the
violation was unclear, and additional time was reasonably
necessary to investigate. Based on the prosecutor's
investigation, facts justifying the OUI charge became apparent,
6
which prompted the Commonwealth to immediately issue a citation
to the defendant. Accordingly, the Commonwealth posits, the
letter of the statute was satisfied.
The defendant counters that the Commonwealth's argument
fails, because Massachusetts courts have applied the second
exception in cases involving "continuing" or "ongoing" police
investigations. He argues that, here, the investigation was not
ongoing, as evidenced by the officers' admission that it had
concluded at the accident scene, four and one-half months prior
to the citation issuing. The Commonwealth does not challenge,
in its brief or at oral argument, the notion that the second
exception must involve an ongoing investigation. Instead, it
claims that the prosecutor's review of the case and request for
the defendant's medical records constituted an ongoing
investigation.
We take this opportunity to clarify that the second
exception speaks to "additional time . . . reasonably necessary
to determine the nature of the violation," and does not contain
the nomenclature "ongoing" or "continuing" investigation. See
G. L. c. 90C, § 2. Although our common law has interpreted the
second exception, in some instances, to involve further
investigative work in analyzing what is "reasonably necessary"
7
within the statutory framework,5 our courts have not adopted a
bright-line rule that an investigation must be continuous or
ongoing to justify the application of the second exception, and
we decline to do so here. The ongoing nature of an
investigation may be a significant factor in discerning the
reasonableness of any delay in issuing a citation,6 but neither
its presence nor absence is dispositive of the issue. See,
e.g., Commonwealth v. Barbuto, 22 Mass. App. Ct. 941, 942-943
(1986) (although "[f]or a substantial portion of the period
between the accident and the issuance of the citations, the
investigating officer had a suspect but failed to take active
steps to pursue the investigation," 174-day delay in issuing
citation for leaving scene of accident after causing personal
injury was justified, where additional time was reasonably
5
See, e.g., Provost, supra at 482-483, 485 (twenty-day
investigation into serious collision, followed by seven-day
delay caused by officer "analyz[ing] and integrat[ing]
information already collected," justified); Commonwealth v.
Perry, 15 Mass. App. Ct. 281, 283 (1983) (no undue delay where
citation "was prepared as soon as the investigation and assembly
of the facts, including the fact of the death, permitted");
Commonwealth v. Gammon, 22 Mass. App. Ct. 1, 7-8 (1986)
(contradiction between nurse's information that defendant was
intoxicated and police officers' observations warranted "further
investigation by the police" and justified twenty-six day delay
in issuing citation for OUI); Commonwealth v. Moulton, 56 Mass.
App. Ct. 682, 684 (2002) (officer "did not actually complete his
investigation into the nature of the accident until he had
interviewed the defendant after she had been stabilized at the
hospital").
6
See note 5, supra.
8
necessary to determine identity of violator). We continue to
adhere to our precedent of deciding each case on its unique
facts. See Provost, supra at 484.
The facts in the present case do not support the
application of the second exception. The officers did not seek
information from Baystate, nor did the circumstances at the
scene present any indicia that the defendant was intoxicated.
The officers admitted that they had concluded their
investigation the day of the incident and, as the judge found,
did not believe that "additional time was reasonably necessary
to determine the nature of the violation." The Commonwealth
responds that although the officers had concluded their
investigation, the prosecutor had not, as evidenced by the open
case alleging operating after suspension and a marked lanes
violation, and by the ensuing grand jury investigation. This
argument is unpersuasive. Months had passed until the
prosecutor, on a hunch spurred by the defendant's subsequent
arrest in an unrelated matter, commenced an investigation
regarding the defendant's potential intoxication on November 24,
2013. The information ultimately sought and obtained by the
Commonwealth had been available all along. We agree with the
judge's conclusion that "the defendant's subsequent arrest in
Northampton did not provide previously unavailable information
regarding the Easthampton incident; rather it was a coincidence
9
that instigated the renewed, independent investigation by [the
prosecutor]." Accordingly, the Commonwealth failed to
demonstrate that more time was reasonably necessary to determine
the nature of the offense within the meaning of the second
exception to G. L. c. 90C, § 2.7
The shortcoming of the Commonwealth's argument is further
apparent when we consider, as we must, the objectives of the
statute.8 At issue is the requirement to give prompt and
definite notice to the alleged offender.9 See Commonwealth v.
Babb, 389 Mass. 275, 283 (1983). The Commonwealth contends that
the defendant "did have some notice" where, on the night of the
accident, Officer Gribi cited the defendant for "operating after
suspension and a marked lanes violation." We disagree. In view
of the officers' testimony that there was no indicia of the
7
We do not speculate as to what scenarios may justify the
resuming or reopening of an investigation without violating
G. L. c. 90C, § 2. We merely hold that under the particular
facts of this case, the four and one-half month delay in issuing
a citation to the defendant for OUI does not fall within the
second exception to the requirements G. L. c. 90C, § 2.
8
The facts of this case do not implicate the objective to
prevent manipulation and misuse of citations. To the contrary,
the judge specifically found that "[n]o evidence suggests that
the police were slothful in opting not to continue the
investigation," and that the officers and the prosecutor acted
in "good faith." The record supports this finding.
9
In this regard, we are mindful of the statutory language
that requires law enforcement to "record the occurrence of
automobile law violations upon a citation, filling out the
citation and each copy thereof as soon as possible" (emphasis
supplied). G. L. c. 90C, § 2.
10
defendant's intoxication at the scene, the officers' testimony
that the investigation had concluded at the scene, the passage
of several months without any investigation by the Commonwealth,
and the absence of any actual or implicit notice to the
defendant that further charges may be forthcoming, notice to the
defendant was neither prompt nor definite. See Commonwealth v.
Riley, 41 Mass. App. Ct. 234, 237 n.4 (1996) (earlier citation
for civil motor vehicle infractions and operating to endanger
"would not suffice to serve notice of the potential of an
operating while under the influence charge to be lodged against
[the defendant]").
3. The third exception. The third exception to the
requirements of G. L. c. 90C, § 2, is a "safety valve," which
excuses delayed delivery of a citation where "the court finds
that a circumstance, not inconsistent with the purpose of this
section to create a uniform, simplified and non-criminal method
for disposing of automobile law violations, justifies the
failure." Id. at 236, quoting from § 2. Within this exception,
our case law has recognized that, in the face of a serious
incident, notice is implicit and the requirements of the statute
are "flexibly applied." Commonwealth v. Russo, 30 Mass. App.
Ct. 923, 925 (1991). See Pappas, 384 Mass. at 431 (notice
requirement under statute "has little relevance when applied to
more serious crimes"). In such cases, the purposes of the
11
statute are not frustrated and "failure to comply strictly with
its requirements has not been fatal to the prosecution."
Barbuto, supra at 943. In concept, the Commonwealth is correct.
In application to the instant case, it is not.
The cases justifying delayed delivery of a citation based
on implicit (or explicit) notice are all distinguishable from
the present case. In those cases notice was sufficient because
the circumstances involved serious injuries to third parties, an
arrest of the defendant, more serious charges requiring obvious
investigation such as motor vehicle homicide or leaving the
scene after causing personal injury, verbal notice from law
enforcement that a citation would be forthcoming, actions or
statements by a defendant evincing awareness of criminal
conduct, or a combination of these factors. See Commonwealth v.
Gorman, 356 Mass. 355, 357-358 (1969) (sufficient notice where
defendant arrested for motor vehicle offense and given citation
later that day); Pappas, supra at 431-432 (motor vehicle
offenses including negligent motor vehicle homicide should not
have been dismissed where four and one-half hour delay between
time of accident and issuance of citation was caused almost
entirely by need to clear scene, investigate cause of accident,
and determine nature of the violations, and where "[i]t is
inconceivable that [a] defendant would be unaware of the
seriousness of a situation in which his vehicle had crossed the
12
center line of a public street and struck a pedestrian"); Babb,
supra at 284 (dismissal of motor vehicle homicide inappropriate
and notice requirement satisfied where defendant struck a
pedestrian, was arrested on day of accident, and "immediately
was charged with drunk driving, driving so as to endanger, and
leaving the scene after causing personal injury and property
damage"); Provost, 12 Mass. App. Ct. 482-483 (twenty-seven day
delay in issuing citation justified by seriousness of possible
charges and officer's need to investigate accident in which
three people had died); Commonwealth v. Perry, 15 Mass. App. Ct.
281, 283 (1983) (automobile violations including motor vehicle
homicide should not have been dismissed in view of seriousness
of charges and one-day delay in issuing citation, which was
issued as soon as feasible); Barbuto, 22 Mass. App. Ct. at 943
(delay in issuing citation justified where defendant left scene
of serious accident after causing injuries to driver and
passenger in other vehicle and causing damage to both vehicles);
Commonwealth v. Kenney, 55 Mass. App. Ct. 514, 519-520 (2002)
(delay in issuing citation justified where notice was implicit
in light of "hit and run" accident in crosswalk where force of
impact "catapulted" pedestrian forty feet forward causing severe
injuries, and where defendant was aware of prospect of
prosecution as evidenced by her flight from scene, statements to
others concerning incident, and prompt engagement of counsel);
13
Commonwealth v. Moulton, 56 Mass. App. Ct. 682, 684 (2002)
(delay in issuing citation justified where defendant had
implicit notice based on seriousness of two-vehicle accident and
officer informing defendant at hospital that he would be mailing
her citation for OUI).
Looking at the peculiar facts of the instant case, no such
factors were present. The incident at issue, although not a
mere fleeting traffic incident, was not so serious standing
alone to confer implicit notice on the defendant pursuant to the
third exception. Here, there was a single-car accident
involving no other driver, passenger, or pedestrian. The
defendant did not act in a manner that demonstrated he was aware
of the prospect of prosecution. A search of the car uncovered
no alcohol or alcohol containers. He was not placed under
arrest, informed that a citation for OUI may be delivered to
him, questioned regarding alcohol consumption, or informed that
an investigation regarding a potential OUI charge was
forthcoming. Furthermore, we are unaware of any authority, and
the Commonwealth cites to none, which has held that a single-car
accident, standing alone, provides a defendant with sufficient
implied notice that satisfies the requirements of G. L. c. 90C,
§ 2.
In sum, the defendant did not have prompt and definite
notice of the offense for which he was charged, and the
14
substantial delay in issuing the citation was not justified
under any of the exceptions to the statutory requirements.
Accordingly, the judge's order allowing the defendant's motion
to dismiss the indictment is affirmed.
So ordered.