Comm. v. Filoma

March 9, 2011

Commonwealth v. Stanley Filoma

Docket No. 09-P-1396

Massachusetts Appellate Court

Evidence, Intoxication, Motor Vehicle, Homicide, Assault and Battery by Means of a Dangerous Weapon.

The defendant was found guilty of involuntary manslaughter, two counts of aggravated assault and battery by means of a dangerous weapon (an automobile), and two counts of operating a motor vehicle under the influence of intoxicating liquor and causing serious bodily injury. On appeal, he argued that the Commonwealth did not show proper proof of impairment as an element for the latter two charges. He claimed that the jury’s finding of guilt with the alcohol-related offenses infected the other charges. He also said that his counsel was ineffective because there was no request for an instruction to the jury of the defense of accident. The appellate court reversed the judgments on the charges of operating under the influence of intoxicating liquor and causing serious bodily injury; however, the judgments on the charges of involuntary manslaughter and aggravated assault and battery by means of a dangerous weapon were affirmed.

Facts

On February 1, 2004, the defendant was watching the Super Bowl at a relative's home; during the game he drank four to six beers. Afterward he drove his car to the Fenway area of Boston to return keys to the apartment of his ex-girlfriend.

When he arrived in that neighborhood around 11 P.M., there were students in the streets celebrating the Patriots’ victory. The surrounding areas became congested, including Hemenway Street, Symphony Road, and St. Stephen Street. The celebration turned into areas of rioting, in which cars were overturned and fires were set. The defendant decided to reach his ex-girlfriend by backing down Symphony Road against its one-way direction, going approximately 20 to 35 miles per hour. The car stopped at least twice in order to correct its direction and to avoid pedestrians. The defendant had backed halfway up Symphony Road when an overturned car forced him to stop.

At that point several police officers ran toward the SUV and called to the defendant to stop the vehicle and to get out. The defendant then drove back down Symphony Road and away from the police. The SUV reached speeds between 30 and 60 miles per hour. Along Symphony Road the vehicle struck five persons. One died as a result of his injuries. A second suffered a severe head injury, a broken femur, and a fractured nose. A third suffered fractures to the left and right sides of his skull and a broken nose. At the end of Symphony Road, the defendant turned against the one-way direction of St. Stephen Street, and then went through two alleyways. He emerged from the second alleyway onto Westland Avenue, hit a taxi and then stopped.

Police officers approached and arrested him. One of the officers detected a smell of alcohol from within the SUV and also observed the defendant's eyes to be glassy and bloodshot, his clothes disheveled, and his gait unsteady. A second officer read the defendant his Miranda rights. The defendant said he had drunk five or six beers that night. Because the defendant was having trouble walking, the police assisted him to a patrol car. They brought him to a station house at approximately 12:15 A.M. Two hours later, the defendant passed the field sobriety test but declined the breathalyzer, though he requested one a couple hours later. Two samples measured .09 percent blood alcohol content by weight.

Issue 1: The Alcohol-Related Offenses

The defendant claimed that because the breathalyzer results were offered to the jury without any explanatory testimony by an expert, this negated the verdicts upon the alcohol-related offenses and taints the findings of guilt upon the non-alcohol-related offenses. This was examined under the substantial risk of a miscarriage of justice standard.

A verdict of guilt on the charges of OUI and causing serious bodily injury required the Commonwealth to prove beyond a reasonable doubt that (1) the defendant had operated a motor vehicle, (2) upon a public way or place to which members of the public had access as invitees or licensees, (3) while he was under the influence of intoxicating liquor (the OUI element), (4) so as to cause serious bodily injury to a victim. The Commonwealth could establish the OUI element two ways: By the "per se" method, it could introduce evidence of a breathalyzer reading of .08 percent or greater and ask the judge to instruct the jury that, if they believed the test’s accuracy, it established operation under the influence. The other option is by the method of proof by impaired operation, with which the prosecution could introduce evidence of the defendant's conduct and a breathalyzer result of .08 percent or greater without a request for an instruction that such a reading, if believed, established operation under the influence. In the second instance, the prosecution would need to support the .08 percent result with explanatory expert testimony.

Here, the Commonwealth did not request an instruction for the per se theory; rather, the prosecutor requested the judge to instruct the jury that the .08 percent measure permitted the jury to draw the reasonable inference that the defendant had been operating under the influence. The Commonwealth had introduced the expert testimony of a toxicologist who did not explain the connection between the blood alcohol content and impairment. Thus, proof of the OUI elements was lacking and required reversal of the alcohol-related crimes.

Issue 2: The Non-Alcohol-Related Offenses. 

The defendant claimed that the findings of guilt in the alcohol-related offenses tainted the non-alcohol related offenses. This was speculation. The trial judge instructed the jury precisely and accurately upon the elements of each offense. The reviewing court assumes that jurors follow the judge’s instructions. There was no error.

Issue 3: The Omission of a Requested Accident Instruction. 

The defendant claimed that his trial counsel's omission of a request for an instruction upon the defense of accident amounted to constitutionally ineffective assistance. This required a motion for a new trial directed to the original trial judge. Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). The defendant had to establish that his attorney's work (1) fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Furthermore, a defendant is entitled to an accident instruction only if "the evidence fairly raises the possibility of accident." Commonwealth v. Jewett, 442 Mass. 356, 370 (2004). This was not the scenario here, as he showed wanton and reckless conduct.

Judgments affirmed in part, reversed in part.

–Prepared by JWK.