Heard: May 2, 2016.
found and returned in the Superior Court Department on
October 21, 2011.
cases were heard by David Ricciardone, J.
C. Stiles for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Present: Agnes, Massing, & Kinder, JJ.
an afternoon of drinking beer, the defendant, Nicolas Dutan
Guaman, drove off in his pickup truck, struck a motorcyclist,
and continued to drive for several blocks while dragging the
victim to his death. The defendant appeals from his
convictions of manslaughter while operating a motor vehicle
under the influence of intoxicating liquor in violation of G.
L. c. 265, § 131/2 (OUI manslaughter), felony motor
vehicle homicide in violation of G. L. c. 90, § 24G(a.),
and other related charges. He claims that the evidence was
insufficient to prove that he knowingly engaged in wanton or
reckless conduct to sustain his conviction of OUI
manslaughter. In addition, he contests evidentiary rulings
admitting the recording of a 911 call and an English
translation of his video-recorded sobriety tests. We affirm,
but because felony motor vehicle homicide is a
lesser-included offense of OUI manslaughter and the defendant
cannot be punished for both, we vacate the conviction and
sentence for felony motor vehicle homicide.
defendant challenges the sufficiency of the evidence, we
recite the facts in the light most favorable to the
Commonwealth to determine whether a rational trier of fact
could find the defendant guilty of the charges beyond a
reasonable doubt. See Commonwealth v. Latimore, 378
Mass. 671, 676-678 (1979); Commonwealth v.
Giavazzi, 60 Mass.App.Ct. 374, 376 (2004)
("There must be adequate evidentiary support for each
essential element of the offense").
about 7:50 P.M- on August 20, 2011, the defendant, driving
his black Ford F-150 pickup truck with his six-year-old son
Jonathan and his brother as passengers, rolled through a stop
sign on Fayette Street in Milford. Matthew Denice was driving
his motorcycle up Congress Street when the defendant's
truck pulled out in front of him. As the victim quickly
applied his brakes, the front driver's side of the truck
hit the motorcycle. Motorcycle and rider rolled over the hood
of the truck, crashed into the windshield, and landed on the
passenger's side. After a moment's hesitation, the
defendant quickly accelerated and drove south on Congress
victim, separated from his motorcycle, somehow got tangled
with his legs beneath the chassis of the truck. A number of
people saw the defendant's truck drag the victim along
the street. At first the victim banged on the truck and
yelled for the defendant to stop, but the truck continued
moving down Congress Street, turned right on West Street, and
then attempted to turn left on Bancroft Street. The victim
emitted "bloodcurdling" screams as he was dragged
along the road. As the truck drove on, dragging the victim
for a nearly quarter of a mile, several witnesses banged on
the truck or yelled for the defendant to stop, but the
defendant continued to drive, outpacing the people who were
trying to get his attention.
to turn left because of damage to the truck, the defendant
drove onto the curb, put the truck in reverse, and then
accelerated down Bancroft Street. This manoeuver released the
victim, who was left lying in the street. One of the first
police officers on the scene attended to the victim. When the
officer removed the victim's helmet, he took a final
breath and died.
officers pursued the defendant's truck. He ignored their
lights and sirens and sped up. At last the defendant turned
down a narrow street and the officers were able to force his
truck to a stop. He did not respond to orders to get out of
the truck, so the officers pulled him out. His eyes were
bloodshot and extremely glassy, he was unsteady on his feet,
and his breath smelled strongly of alcohol. The interior of
the truck also reeked of alcohol and was littered with empty
beer cans, open cans that were still cold, and the remainder
of a thirty-pack of beer.
the course of the arrest the police realized that the
defendant did not speak English. A Spanish-speaking officer,
Angel Arce, took over the arrest. Arce had little trouble
communicating with the defendant, although it later became
known that the defendant was a native of Ecuador and spoke
both the Quechua language and dialect of Spanish. The police
took the defendant to the station, where Arce conducted
sobriety tests and then booking procedures, which were video
recorded. The defendant was unable to follow instructions and
at one point informed Arce that he was having difficulty with
the tests because he had drunk six beers.
defendant had been drinking for several hours before he hit
the victim's motorcycle. Earlier that afternoon, around
4:30 P..M., the defendant had driven his truck to his
brother's apartment in Milford and parked behind the
building. The defendant brought Jonathan with him, as well as
a supply of beer. He already appeared drunk.
defendant and his brother drank beer in and around the truck
and the back porch, while Jonathan played in the backyard
with his nine-year-old cousin Vivian (the defendant's
brother's step-daughter) and other neighborhood children.
After an hour or two, in which the defendant drank at least
five cans of beer, the defendant, Jonathan, and his brother
got in the truck to drive away. Concerned for her
cousin's safety, Vivian told Jonathan not to get into the
truck because his father was drunk. She also told the
defendant not to take Jonathan. When the defendant
nonetheless drove away with his son and brother, Vivian,
scared and worried that something would ...