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Commonwealth v. McCravy2/14/2000
Norfolk.
November 5, 1999.
Grand Jury. Due Process of Law, Grand jury proceedings. Evidence, Grand jury proceedings. Practice, Criminal , Grand jury proceedings, Argument by prosecutor, Sentence. Motor Vehicle, Operation, Homicide.
Indictment found and returned in the Superior Court Department on October 4, 1995.
A motion to dismiss was heard by Sandra L. Hamlin, J., and the case was tried before Julian T. Houston , J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
This matter is before us on the defendant's appeal from his conviction of driving negligently or recklessly so as to endanger the safety of the public, G. L. c. 90, Sect. 24 (2) (a). We transferred the case to this court on our own motion. He claims error in three respects. First, he contends that the Commonwealth impermissibly presented to the grand jury the same evidence that had already been found insufficient by a prior grand jury. Second, he challenges certain remarks of the prosecutor during his closing argument. Finally, he argues that the sentence imposed by the trial judge was unlawful because it took into account the death of the passenger in the car the defendant was driving, a homicide for which the jury had not found the defendant responsible. We affirm the conviction, but remand the case to the Superior Court for resentencing.
1. We summarize evidence of the circumstances of the accident, before turning to the indictments. On the night of July 30, 1995, the defendant spent several hours with his friend, Daniel Archibald, at a nightclub in Quincy. Shortly after the club closed at midnight, the defendant and Archibald left together in the defendant's Corvette automobile. The defendant was driving. While on West Squantum Street, a windy road through Quincy and Milton, the defendant's automobile flipped over. The circumstances leading to that event were contested at trial.
The defendant, who testified, contended that the accident had been caused when he was "cut off" by another driver speeding past him in a Porsche automobile as they approached a sharp, left-bearing curve near the Quincy-Milton line. The Commonwealth contended that the driver of the Porsche was traveling ahead of the defendant's Corvette, that the defendant had been traveling above the speed limit, was intoxicated, and had lost control of the Corvette as he entered the sharp curve.
After the accident, the defendant was able to remove himself from his vehicle. Archibald, however, was trapped in the wreckage. With the assistance of several individuals who stopped at the scene, the defendant managed to free Archibald who was unconscious and badly injured.
Paramedics transported the defendant and Archibald to a local hospital, where Archibald was pronounced dead. A blood alcohol concentration test taken at the hospital revealed that the defendant's blood had an alcohol content of 0.12 per cent. Evidence that a person's blood alcohol level is 0.08 per cent creates a permissible inference that a person is under the influence of alcohol. See G. L. c. 90, Sect. 24 (1) (e) (1994 ed. & Supp. 1995). Two Milton police officers then arrested the defendant at the hospital.
On September 13 and September 27, 1995, the Commonwealth presented evidence to a grand jury in Norfolk County concerning the motor vehicle accident and Archibald's death. The grand jury returned only one indictment charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor.
The Commonwealth did not proceed on that indictment. Rather, on October 4, 1995, the Commonwe
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