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Commonwealth v. Moore

Appeals Court of Massachusetts, Plymouth

August 10, 2017


          Heard: February 16, 2017.

         Indictments found and returned in the Superior Court Department on November 16, 2012.

         The cases were tried before Frank M. Gaziano, J., and a motion to reduce the verdict was considered by him.

          Elizabeth Doherty for the defendant.

          Laurie S. Yeshulas, Assistant District Attorney, for the Commonwealth.

          Present: Kafker, C.J., Wolohojian, & Sacks, JJ.

          SACKS, J.

         On October 12, 2012, at approximately 4:30 P.M., the defendant led police on a high-speed chase through the streets of Brockton, finally running a red light at a busy intersection and causing a seven-car collision resulting in the death of another driver, Marianne Kotsiopoulos. After a four- day trial, a jury found the defendant guilty of murder in the second degree, involuntary manslaughter, [1] and numerous other crimes arising out of the collision.[2] He now appeals his murder conviction and the trial judge's denial of his postconviction motion to reduce the verdict pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The defendant argues that (1) the evidence was insufficient to support a finding of third prong malice; (2) the Commonwealth's closing argument was improper; (3) the judge erred in declining to instruct that manslaughter is a lesser included offense of murder; (4) counsel was ineffective in failing to request an "accident" instruction; and (5) the trial judge abused his discretion in declining to reduce the second degree murder verdict to a lesser offense. We affirm.

         The Commonwealth's case.

         We recite the evidence and the reasonable inferences to be drawn from it in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Detectives Donahue and Carpenter of the Brockton police department were conducting an investigation into narcotics activity in an unmarked sport utility vehicle (the SUV). They observed a Chevrolet TrailBlazer sport utility vehicle, operated by the defendant, roll through a stop sign. The detectives decided to stop the TrailBlazer; they passed it on the left, illuminated their emergency lights, and parked in front of it at a forty-five degree angle. Detective Donahue, who was driving the SUV, walked around toward the driver's side of the TrailBlazer, and Detective Carpenter exited from the SUV's passenger side. Detective Carpenter made eye contact with the defendant and shouted, "Stop, police, stop, police." He watched the defendant "looking around quickly from left to right, almost in a panic sense, " then saw him reach down for the gearshift. The TrailBlazer "took off" abruptly, driving toward Detective Carpenter standing at the SUV's open passenger side door, squeezing between it and a telephone pole, driving over the sidewalk, and turning right onto Crescent Street. The TrailBlazer's front bumper hit the passenger-side door of the SUV, forcing it shut as soon as Detective Carpenter was able to retract his foot inside.

         Two more detectives had by then arrived. As the TrailBlazer headed east down Crescent Street, traveling at a "high rate of speed going in and out of traffic, " those detectives pursued, followed by the SUV and a third police vehicle. The TrailBlazer weaved in and out of lanes heading both east and west, driving on the yellow center lines, while other vehicles stopped or pulled over to allow the police vehicles, with lights and sirens activated, to pass. The TrailBlazer traveled on the wrong side of the road in making a left turn onto Quincy Street, "the rim . . . riding on the ground, " tires squealing, and rear end sliding, and it continued north at high speed, gaining distance on the police. Witnesses described traffic at the time as "heavy, " "rush hour, " "bumper to bumper, " "gridlocked, " "busy, " and "very steady."

         By then several hundred yards in front of the police vehicles, the TrailBlazer sped through a red light at the intersection of Quincy Street and Centre Street and collided with another vehicle.[3] The TrailBlazer's rear end went "completely up in the air, vertical"; "if you were in the driver's seat of the vehicle, you'd almost be looking straight down at the ground through the windshield." Another detective who had joined the pursuit testified that he saw a car "go airborne" at the intersection. A witness described it as a "massive explosion of dust and metal [that] completely engulfed" the intersection. The first point of impact was the driver's side of a Jaguar, driven by Marianne Kotsiopoulos, which bore the brunt of the collision. The Jaguar and TrailBlazer further collided with at least five other vehicles, a scene one witness described as "like a pinball machine."

         The TrailBlazer was equipped with an "Event Data Retrieval" (EDR) system, which recorded the vehicle's speed just prior to the collision. The EDR data revealed that the TrailBlazer had accelerated at full throttle from fifty-three miles per hour five seconds before the impact, to sixty-four miles per hour one second before impact, and at the moment of impact was traveling approximately fifty-five miles per hour. The EDR system also revealed that the brake pedal was never depressed prior to impact.

         After the collision, the defendant exited the wrecked TrailBlazer, left the scene on foot, and was apprehended nearby. After receiving Miranda warnings, the defendant told Detective Donahue that he "didn't mean to hurt anybody, " "hoped everybody was okay, " and "basically took off from [the police] because he didn't have a license to drive." In an interview a few hours later, the defendant told another officer that he had seen a police car with lights in his rear view mirror but "didn't want to stop, " because he didn't have a license, so he "just kept driving . . . because [his] brakes wouldn't stop for [him.]" He said that as he approached the intersection, there were cars on his side of the street, so he "went around them on the left side, " into the intersection, and collided with another car.

         The defendant's case.

         The defendant, who testified at trial, gave a version of events largely similar to the Commonwealth's. Although the jury were not required to credit the defendant's explanations, we supplement the facts with portions of his testimony that are relevant to his arguments on appeal.

         On the day in question, the defendant planned to meet an acquaintance and conduct a drug transaction in the area where Detectives Donahue and Carpenter were patrolling. The defendant was looking for and attempting to contact his acquaintance when he approached a stop sign and noticed that a car had pulled up behind him "out of nowhere." The defendant perceived the car's movements as threatening and suspicious, thought someone was trying to "pin [him] in" and rob him, and "instinctively panicked, " veering off to the right onto Crescent Street. The defendant could not recall how fast he was driving, but knew that he was passing other cars. He testified that he "felt really threatened" and thought his "life was in harm's way."

         After traveling one-half mile down Crescent Street, turning left onto Quincy Street, and proceeding north, the defendant began to hear sirens behind him. He looked in his rearview mirror and saw blue lights in the distance. The defendant "didn't know how to react, " so he "froze up, " and by the time he looked forward again, he was already at the intersection with Centre Street and colliding with the other vehicles. He admitted that he did not apply the brakes, which he testified were "getting worn down" and not "pinpoint accurate."

         The defendant also admitted that he was aware at the time that his driver's license had been suspended, but explained that the real reason he fled was out of fear that someone was trying to rob him, not to evade the police. The defendant insisted that he did not know it was the police who were pursuing him until he was nearly at the intersection where the collision occurred. The defendant acknowledged that he caused the collision and was responsible for Kotsiopoulos's death.

         Trial ...

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