Heard: April 4, 2018.
found and returned in the Superior Court Department on March
12, 2013. The cases were tried before David Ricciardone,
Kathryn Hayne Barnwell for the defendant.
T. O'Sullivan, Assistant District Attorney, for the
Present: Rubin, Sacks, & Singh, JJ.
Ana Mercedes Franceschi was indicted in Hampden Superior
Court on charges of murder in the first degree, G. L. c. 265,
§ 1; armed assault with intent to murder, G. L. c. 265,
§ 18 (b); and leaving the scene of property damage, G.
L. c. 90, § 24. After a jury trial, she was convicted of
the lesser included offense of voluntary manslaughter, G. L.
c. 265, § 13, and leaving the scene of property damage,
but acquitted of armed assault with intent to murder. The
defendant now appeals from her conviction of voluntary
manslaughter, arguing that it should be vacated because the
Commonwealth failed to present sufficient evidence or that
the trial judge's erroneous admission of expert testimony
entitles her to a new trial. We affirm.
of the evidence. In evaluating whether a conviction was
supported by sufficient evidence, we consider whether the
evidence, viewed in the light most favorable to the
Commonwealth, could satisfy a rational trier of fact of each
element of the crime beyond a reasonable doubt. See
Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). Viewing the record evidence in
that light, the jury could have found the following.
evening of February 17, 2013, the victim and her friend, who
testified at trial, drove in the victim's car to
Rosario's Mini Market (Rosario's) in Springfield.
After entering Rosario's, they talked to several men,
including one named Orlando, who was the owner of
Rosario's, and one named Rolando, the victim's friend
and Orlando's cousin. While the victim was talking with
Rolando, the defendant entered Rosario's and began
criticizing Orlando, whom she was dating at the time, for
talking to the victim and her friend. Although the defendant
did not speak to the victim or her friend, the defendant gave
them dirty looks and referred to them as "nobodies"
and "whores." Orlando and the defendant's
argument continued outside the store; then the victim's
friend heard a very loud noise that sounded like "glass
. . . breaking." The victim and her friend left ten or
fifteen minutes later, by which point the defendant was gone.
victim and her friend met up the next morning, along with the
victim's fourteen year old daughter, who also testified.
The victim told her friend that there was damage to the
victim's car on the rear light, the bumper, and the trunk
that had not been there the day before. The jury reasonably
could have inferred, as the friend did, that the damage to
the car was related to the loud noise she heard the night
before and that it was caused by the defendant. The friend,
the victim, and her daughter then went to Rosario's to
talk to Orlando about the car. When they arrived, Orlando was
not there, and so they went to a nearby "dollar
store." After waiting at the dollar store for a while,
they returned to Rosario's to see if Orlando had arrived.
On the way back to Rosario's, they needed to cross the
street, entering the northbound lane, then crossing the
yellow line in the middle of the road into the southbound
they started to cross, the friend, the victim, and her
daughter saw the defendant leaving Rosario's and getting
into her motor vehicle. The defendant started driving in the
southbound lane, on the right side of the road, towards the
three. The friend and the victim's daughter crossed the
street safely, but the defendant's vehicle struck the
victim while she was still in the road. The victim later died
of her wounds.
accounts of the two percipient witnesses differed somewhat as
to how the impact occurred. On direct, the victim's
daughter testified that the victim was standing "on the
other side" of the road when she was
struck. On cross-examination, the victim's
daughter stated that the victim was in the "middle of
the road." Furthermore, according to the victim's
daughter, prior to impact, the victim put her hand up in
front of the defendant's vehicle, and the defendant
"shook her head and said no." The victim's
daughter also testified that the defendant's vehicle sped
up before it hit the victim and did not stop after impact.
the victim's daughter, the friend testified that the
victim was "standing in the middle of the road"
when she was struck. However, the friend also testified that
she was looking at her keys at the precise moment of impact
and turned back only after hearing a loud thud. The defendant
sought to impeach the friend's testimony on the location
of the impact by introducing a diagram she had drawn for the
police shortly after the incident that appeared to depict the
victim walking along a snowbank in the southbound lane, and a
photograph showing that the snowbank did not approach the
middle of the road. The defendant also introduced a prior
statement the friend made to police that "[the victim]
was walking along, walking past the snowbank."
friend's trial testimony also differed from the
victim's daughter's testimony concerning the
defendant's braking. Unlike the daughter, the friend
testified on direct that she saw the defendant's brake
lights illuminated prior to impact. The Commonwealth then
attempted to impeach this testimony with a prior inconsistent
statement the friend made to police, in which she claimed
that the brake lights were "off" prior to impact.
And the friend herself later said on direct, when asked
whether "the brake lights came on," that they came
on "[w]hen the thud had already happened." The
friend's testimony was also unclear as to whether the
defendant stopped after hitting the victim but before driving
away. The friend stated, "When she hit her, . . . she
didn't stop. She kept going. . . . The stop was when she
had hit -- when she first hit her and then she continued
on." Shortly thereafter, in response to the question,
"Did the gray vehicle come to a complete stop?" the
friend answered, "No, it continued straight. It
to a detective who later interviewed the defendant, the
defendant told him that, after the collision, she drove for a
couple of blocks; pulled over; telephoned the police, whom
she told to meet her at her house; and went home.
subsequent investigation revealed that the victim was struck
by the defendant's vehicle at its "dead center under
the license plate." The investigation also showed
various items of debris in a "cone of evidence."
Specifically, an accident reconstruction expert's report
showed that blood and hair, a hair tie, a belt piece, a hoop
earring, and two more separate units of hair were found in
the northbound lane (with some touching the northbound
sidewalk); lip balm, two separate motor vehicle parts, and
another hoop earring were found in the southbound lane; and a
piece of a motor vehicle, blood and hair, more blood,
sequins, a belt, and a right shoe were found on the yellow
line. The victim's feet were on the yellow line, and her
head was in the northbound lane. Furthermore, the
investigation showed that the victim had been
"overrun" by the defendant's vehicle,
indicating a lack of braking immediately following impact.
The Commonwealth also introduced expert testimony, discussed
in detail infra, that evidence of a "scuff
mark" from the victim's shoe showed that the point
of impact was in the middle of the road, that is, on the
defendant's only sufficiency argument is that the
Commonwealth bore but failed to satisfy the burden of
disproving accident beyond a reasonable doubt. Accident is an
affirmative defense that the Commonwealth must disprove
beyond a reasonable doubt when the issue is "fairly
raised." Commonwealthv.Podkowka, 445 Mass. 692, 699 (2006), quoting
Mass. 126, 145 (1984). We agree with the defendant that the
issue of accident was fairly raised, but disagree that the