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Commonwealth v. Ray

Appeals Court of Massachusetts, Plymouth

August 29, 2019

COMMONWEALTH
v.
BRENDAN W. RAY.

          Heard: February 6, 2019.

         Indictment found and returned in the Superior Court Department on December 7, 2015.

         A motion to dismiss was heard by Thomas F. McGuire, Jr., J., and a motion for reconsideration was considered by him.

          Jessica Heaton, Assistant District Attorney, for the Commonwealth.

          Jason Green, Committee for Public Counsel Services, for the defendant.

          Present: Henry, Lemire, & Ditkoff, JJ.

          DITKOFF, J.

         The Commonwealth appeals from an order of a Superior Court judge dismissing so much of an indictment as charged the defendant, Brendan W. Ray, with causing serious bodily injury while operating a motor vehicle recklessly or negligently and while under the influence of an intoxicating substance, G. L. c. 90, § 24L (1), because of failure to comply with the "no-fix" statute, G. L. c. 90C, § 2. Concluding that the Commonwealth failed to show that the over ten-month delay was necessary to determine the nature of the violation, and that neither an earlier citation for negligent operation, G. L. c. 90, § 24 (2) (a.), nor the nature of the accident provided the defendant with sufficient notice that he would be charged with this crime, we affirm.

         1. Background.

         "We adopt the Superior Court judge's factual findings, which we do not disturb absent clear error, and supplement them with uncontroverted details from the record." Commonwealth v. O'Leary, 480 Mass. 67, 67-68 (2018), citing Commonwealth v. Burnham, 90 Mass.App.Ct. 483, 484 n.l (2016) . At approximately 10 P..M. on January 23, 2015, an accident involving two cars occurred in the area of Bedford Street in Whitman. When police arrived at the scene, a blue Volvo with extensive damage was stopped at an angle on the side of the road. The driver of the Volvo was removed from the car and transferred to a hospital by helicopter for treatment of life-threatening injuries. A red Jeep (allegedly operated by the defendant) was overturned, lying on its passenger side in the road. The Jeep had severe damage to its front end, and its hardtop roof and rear passenger-side tire were detached. A police detective observed an expired inspection sticker on the Jeep. Meanwhile, the defendant was seated on railroad ties along the edge of a driveway approximately ten to twenty feet from the Volvo. The defendant told police that he had no recollection of the accident. The defendant was profusely bleeding from his mouth, nose, and face, and was transported to the hospital by ambulance.

         Police were unable to determine the cause of the accident right away and did not charge the defendant with a crime or issue a citation on the night of the accident. At approximately 2:13 A.M. that night, a detective went to South Shore Hospital to interview the defendant. The defendant told the detective that he had no memory of the accident. He recalled that he was at a friend's house in Bridgewater before the accident but could not remember the name of the friend. The detective noticed "a slight odor of alcohol coming from [the defendant]" but did not form the opinion that he was intoxicated at that time. The defendant told the detective that he drank a couple of beers at his friend's house earlier that night.

         On January 30, 2015, seven days after the accident, the detective prepared a report stating that the accident was still being investigated. The detective also reported that the defendant's vehicle, traveling northbound, crossed the center line into the southbound lane and collided with the blue Volvo.

         On January 31, 2015, the defendant attempted to retrieve his Jeep at the Whitman police station. The detective told the defendant that the accident was still being investigated and the Jeep could not yet be released. The detective again asked the defendant if he remembered the accident. This time, the defendant recalled that the rear tire detached from the Jeep and he lost control of the vehicle and crashed. The detective told the defendant that the driver of the Volvo was severely injured and remained in the hospital in a medically-induced coma. He also told the defendant that criminal charges could be issued as a result of the accident.

         In mid-March 2015, the State trooper responsible for the accident reconstruction investigation reported that "the accident was not caused by mechanical failure" and that the tire came off the Jeep as a result of the accident, not prior to the accident. On March 20, 2015, the detective issued the defendant a motor vehicle citation listing charges of negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a.); a marked lanes violation, G. L. c. 89, § 4A; and failure to have the motor vehicle inspected, ...


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