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Commonwealth v. Shellenberger7/20/2005
Berkshire.
February 15, 2005.
Present: Beck, Berry, & Mills, JJ.
Motor Vehicle, Homicide. Evidence, Medical record, Opinion. Practice, Criminal , Instructions to jury. Controlled Substances.
Complaint received and sworn to in the Southern Berkshire Division of the District Court Department on June 22, 2000.
The case was tried before Alfred A. Barbalunga, J.
A jury convicted the defendant of one count of motor vehicle homicide by negligent operation under G. L. c. 90, § 24G(b). On appeal, she contends that (1) a medical record, which contained only a vague reference to an unquantified amount of amphetamine in her system, was unfairly transformed, during trial, into a surprise theory of criminal liability; there was no foundation for the amphetamine evidence used to support this new theory; and, in arguing that theory in his closing, the prosecutor committed error by arguing that "speed kills"; (2) the instructions on causation were inadequate; and (3) a lay opinion as to her vehicle's speed should not have been admitted. We conclude that the amphetamine evidence, which became a mainstay of the Commonwealth's case, was not adequately supported in the record and was unfairly portrayed by the Commonwealth. Consequently, the jury were permitted to speculate upon important questions, resulting in a substantial risk of a miscarriage of justice. We reverse.
1. Background
The defendant was employed by a private company that transported criminal fugitives throughout the United States. On May 24, 2000, at about 6:00 A.M., she was driving a van with an inmate in the back, and her co-worker, Scott Bellon, asleep in the front passenger seat. She had been driving since 9:00 P.M. on the previous evening, the road was wet and slippery, and it was raining lightly. The van collided with a stone abutment (part of a railroad overpass) on Route 41 in Great Barrington, and Bellon was killed.
The principal defense theory was that the accident resulted from poor road design and ineffective warning signs.
The Commonwealth's theory of the case began as one of speeding, resulting in death. However, this theory was supplemented by the theory that the death was the result of the defendant's driving while under the influence of amphetamines, the amount of which was never defined. That second theory held center stage for most of the trial and prosecutorial closing despite the fact that there was an insufficient evidentiary foundation for it.
The complaint contained one count for the civil infraction of speeding (G. L. c. 90, § 17), and a second count for motor vehicle homicide by negligent operation, tracking a portion of the language of G. L. c. 90, § 24G(b). The complaint did not allege impaired operation while under the influence of proscribed chemicals or substances, which is an alternative offense under the statute. At trial, the prosecutor, in his opening statement, repeatedly emphasized "reckless driving" and excessive speed as causes of the accident. The opening made no mention of amphetamines or other chemical substances.
The Commonwealth's first three witnesses testified to the progress of the van as the defendant drove south on Route 41, prior to the accident. These percipient witnesses testified as to the vehicle's excessive speed, and two witnesses (Jesse Crane and Robert Walder) also testified that the van had passed other vehicles in a no-passing zone. Their testimony provided evidence that the defendant was the driver of the van and operated it at an excessive speed, on a road that was both wet and irregular in its curves, with some signage pertaining to curves a
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