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Commonwealth v. Franceschi

Appeals Court of Massachusetts, Hampden

December 27, 2018

COMMONWEALTH
v.
ANA MERCEDES FRANCESCHI.

          Heard: April 4, 2018.

         Indictments found and returned in the Superior Court Department on March 12, 2013. The cases were tried before David Ricciardone, J.

          Kathryn Hayne Barnwell for the defendant.

          Shane T. O'Sullivan, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Sacks, & Singh, JJ.

          RUBIN, J.

         Defendant 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.[1] We affirm.

         Sufficiency 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.

         On the 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."[2] 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.

         The 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 lane.

         When 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.

         The 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.[3] 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.

         Like 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."

         The 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 left."

         According 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.

         The 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 yellow line.

         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 Commonwealthv.Palmariello, 392 Mass. 126, 145 (1984). We agree with the defendant that the issue of accident was fairly raised, but disagree that the ...


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