Commonwealth of Massachusetts

Worcester County Supreme Judicial CourtFAR-

Appeals CourtNo. 2014-P-1965

Commonwealth

v.

Nicolas Dutan Guaman

DEFENDANT’S APPLICATION FOR FURTHER APPELLATE REVIEW

Now comes the defendant and respectfully applies,

pursuant to Mass. R. App. P. 27.1, for further

appellate review of his convictions in Worcester

Superior Court number WOCR2011-01034, the reasons for

which are set forth in the accompanying memorandum of

law.

Respectfully Submitted,Defendant, by counsel :

/s/ Ethan C. Stiles Ethan C. StilesP.O. Box 232Plympton, MA 02367ecstileslaw@gmail.com(781) 312-7520

September 6, 2016 BBO #661083

-1-

Commonwealth of Massachusetts

Worcester County Supreme Judicial CourtFAR-

Appeals CourtNo. 2014-P-1965

Commonwealth

v.

Nicolas Dutan Guaman

DEFENDANT’S MEMORANDUM IN SUPPORT OF AN APPLICATION FORFURTHER APPELLATE REVIEW

Statement of Prior Proceedings

The defendant appealed convictions in the

Worcester Superior Court, Docket WOCR2011-01034, for

(1) manslaughter by motor vehicle while under the

influence of alcohol1, G. L. c. 265, § 13½; (2) motor

vehicle homicide while under the influence of alcohol;

G. L. c. 90, § 24G(a); (3) reckless endangerment of a

child, G. L. c. 265, § 13L; (4) leaving the scene of an

accident causing death, G. L. c. 90, §24(2)(a ½)(2);

(5) failure to stop for a police officer, G. L. c. 90,

§ 25; (6) operating a motor vehicle without a license,

G. L. c. 90, § 10. He was convicted of those charges

1 Mr. Guaman was also tried for murder in the second degree, but the trial judge acquitted him of that charge.

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and sentenced to twelve to fourteen years for

manslaughter by motor vehicle and nine to ten years

concurrently for motor vehicle homicide. He was given

ten years probation for the reckless endangerment and

leaving the scene convictions. The judge filed the

failure to stop for police and unlicensed operation

convictions. (Riccardione, J. presiding).

The defendant’s convictions, except for the motor

vehicle homicide while under the influence of alcohol

conviction, were upheld on appeal via a published

opinion issued on August 17, 2016. The Appeals Court

held that motor vehicle homicide while under the

influence of alcohol, as charged, was a lesser included

offense of manslaughter by motor vehicle while under

the influence of alcohol.2 The defendant has not

petitioned the Appeals Court for a rehearing.

Statement of Facts Relevant to the Appeal

To the extent the Appeals Court has correctly

stated the facts in its opinion, they cannot be

repeated here. Mass. R. App. P. 27.1(b). The Appeals

2 The defendant argued this position below and does notchallenge this holding of the Appeals Court’s opinion.

-3-

Court was incorrect when it stated “Motorcycle and

rider rolled over the hood of the truck, crashed into

the windshield, and landed on the passenger's side.

[emphasis added]” Commonwealth v. Guaman, 90 Mass.

App. Ct. 36, 38 (2016). There were no eyewitnesses to

the crash and the Commonwealth’s accident

reconstruction expert only opined “[d]uring the impact,

the motorcycle had gone over the hood of the vehicle,

the F-150, and landed on that side.” T5/22. He did

not opine where the motorcycle operator’s body went or

landed as a result of the crash or how it got trapped

underneath Mr. Guaman’s truck. While a pair of

witnesses indicated that “[t]he victim emitted

"bloodcurdling" screams as he was dragged along the

road”, Guaman, 90 Mass. App. Ct. at 38, many other

witnesses were screaming and banging on the truck to

try to get Mr. Guaman’s attention. T2/80-81; 105, 113,

168; T3/17, 39.

In addition to the facts given in the Appeals

Court’s opinion, the following facts are also relevant

to the issues on appeal : Mr. Guaman was born in

Ecuador in a very small indigenous village. T1/10.

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His primary spoken language was Quechua and he had a

formal second grade education. T1/38. He spoke

Quechua exclusively until the age of ten, whereupon he

began to learn Spanish in school. T1/38. He had been

living in the United States since 2002 but understood

no English. T1/39, T2/23. He could read some Spanish

but could not really write it. T2/24. His counsel

explained to the Court that in prior meetings with Mr.

Guaman, he would not necessarily understand certain

concepts but would not tell his attorneys that he did

not comprehend what they were telling him. T1/32. The

Court had previously found that he was not competent to

stand trial but found with education he could be made

competent, which was achieved. T1/8-9. However, his

attorneys expressed concern to the Court that legal

concepts like “testimony” and “waiver” may not have an

exact translation into Quechua and may need to be

explained to Mr. Guaman in Spanish. T1/47, T2/12.

The trial judge expressed concern regarding the

interpreter because Mr. Guaman's primary language was

Quechua. T1/41. The judge spoke to the interpreter

present, Frank Geoffrion. T1/42. Mr. Geoffrion was a

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court-certified Spanish interpreter who often provided

services for the Milford District Court, where there

was a sizable community of people from Ecuador. T2/16.

He explained that there were forty-seven varieties of

Quechua and the kind he spoke and the kind Mr. Guaman

spoke were not mutually intelligible outside a few

words. T1/42. He continued that he was using a

dialect of Spanish spoken in the Andes of Ecuador, Peru

and Bolivia and Mr. Guaman's Spanish was very close to

that dialect. T1/43. He had spoken with Mr. Guaman

twice before at the Worcester House of Correction and

with his Quechua-inflected Spanish, he could understand

Mr. Guaman and Mr. Guaman could understand him. T2/16-

18. The trial judge accepted Mr. Guaman's assertion

that he could understand the Spanish interpretation

when spoken to slowly and indicated he would instruct

the witnesses to speak clearly and the judge would take

extra breaks to try to ensure Mr. Guaman could be able

to understand the proceedings. T1/40; T2/11. His

attorneys submitted jury waiver colloquy questions to

the trial judge using the simplest language possible.

T1/14, 46-47. On the second day of trial, after the

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attorneys' diligent attempts to find a native Quechua

interpreter that Mr. Guaman could understand had

failed, the Court accepted Mr. Geoffrion's services.

T2/5, 20.

The Court proceeded to conduct the jury waiver

colloquy with Mr. Guaman. T2/20. Mr. Guaman was able

to give his date of birth but could not give his age.

T2/22. He knew the names and ages of his children but

not the population of his native village. T2/27. He

worked on farms in Ecuador and as a roofer in the

United States. T2/28-29. He had a fall while in jail

and expressed that he had never been to the hospital

before, but also had a fall off a house in 2005 that

left a scar and no memory of being to a hospital.

T2/29-30. He stated that since the 2005 fall, he had

difficulty understanding things when frightened.

T2/30. He told the judge he was clear about what a

judge was but not a jury, so the judge explained the

importance of the jury to him again. T2/31-34. Based

on his observations of Mr. Guaman and his responses to

questions, with Mr. Guaman's signature on the waiver

form as interpreted, the trial judge found a competent

-7-

waiver of a jury trial. T2/37.

Statement of Issues with Respect to which FurtherAppellate Review is Sought3

Whether the Appeals Court erred in holding that

there was sufficient evidence that Mr. Guaman engaged

acted recklessly, as opposed to negligently, in

upholding his conviction for manslaughter by motor

vehicle while under the influence of alcohol?

Whether the Appeals Court erred in holding that

the 911 call qualified as an excited utterance to the

hearsay rule?

Whether the Appeals Court erred in holding that

the arresting officer was qualified to certify a

translation of the defendant's responses to his

questions when the translation was done by another

translator?

THE APPEALS COURT ERRED IN HOLDING THAT THE COMMONWEALTH PROVED THE DEFENDANT ACTED RECKLESSLY

3 In this Application, the defendant has not addressed the issues of the Appeals Court’s opinion that the 911 call qualified as an excited utterance or that the translation of the defendant’s statements at the booking interview was properly admitted. If this Court grants the defendant’s application for further appellate review, the defendant requests that this Court consider all the issues that were briefed and argued before the Appeals Court. See Commonwealth v.Burno, 396 Mass. 622, 623 (1986).

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WHEN THE DEFENDANT ROLLED THROUGH A STOP SIGN AND DID NOT KNOW WHERE THE MOTORCYCLE'S OPERATOR HAD LANDED

Mr. Guaman was charged with manslaughter by motor

vehicle, G. L. c. 265, §13½ : operating a motor vehicle

under the influence of alcohol on a public way and

wantonly or recklessly so that the lives and safety of

the public might have been endangered and by such

operation did cause the death of Mr. Denice. He was

also charged with G. L. c. 90, § 24G(a), motor vehicle

homicide : operating a motor vehicle under the

influence of alcohol on a public way and negligently4

so that the lives and safety of the public might have

been endangered and by such operation did cause the

death of Mr. Denice. Unlike the second degree murder

charge of which Mr. Guaman was acquitted, neither

manslaughter by motor vehicle nor motor vehicle

homicide require that the Commonwealth prove Mr. Guaman

intentionally caused the death of Mr. Denice.

4 The statute uses “recklessly or negligently” here, but this Court determined “recklessly” to have been surplusage when the Legislature started drafting § 24(G) by taking the language as a template from the driving to endanger statute. Commonwealth v. Jones, 382 Mass. 387, 392 (1981). Ordinary negligence is the focus of § 24(G)(a). Commonwealth v. Burke, 6 Mass. App. Ct. 697, 700-701 (1978).

-9-

Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 309

(2008).

Wanton or reckless conduct has been described as

“conduct [that] involves a high degree of likelihood

that substantial harm will result to another”.

Commonwealth v. Earle, 458 Mass. 341, 347 (2010). A

reckless defendant is generally deemed to have been

indifferent to or shown disregard for the probable

consequences of his acts. Commonwealth v. Godin, 374

Mass. 120, 129 (1977). Ultimately, the “grave danger”

must be apparent to the defendant, he must chose to run

the risk instead of altering his conduct to avoid the

harm. Commonwealth v. Welansky, 316 Mass. 383, 398

(1944).

Recklessness or wantonness is generally a higher

state of culpability than negligent conduct.

Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass.

826, 832 (2010). Reckless or wanton conduct is

intentional conduct, whereas negligent conduct is

unintentional, and only the former conduct is criminal

absent a statutory prohibition. Welansky, 316 Mass. at

400-01. The standard for criminal negligence is the

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same for civil negligence and will suffice to prove

guilt for a motor vehicle homicide charge.

Commonwealth v. Berggren, 398 Mass. 338, 340 (1986);

Welansky, 316 Mass. at 400. When an individual owes a

duty of reasonable care to another, as does an operator

of a motor vehicle to the public when operating his

vehicle on a public way, he is negligent when he fails

to use the degree of care a reasonably prudent person

would use under the circumstances, either by failing to

act reasonably or by acting unreasonably. Morgan v.

Lalumiere, 22 Mass. App. Ct. 262, 267 (1986).

Operating under the influence of alcohol is

insufficient absent evidence of negligent or reckless

operation to find a defendant guilty under either

statute. Commonwealth v. Campbell, 394 Mass. 77, 82-83

(1985). In Campbell, the court held sufficient

evidence of criminal negligence existed when a driver

struck a pedestrian and had driven faster than the

posted speed limit, crossed the center line of a

divided highway, failed to slow down or stop

immediately after the impact and carried one of the

victims on his hood for one hundred feet. Id.

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Evidence of reckless or negligent conduct was found in

Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 305, 310

(2008), where the defendant drove an SUV with three

children seated in the cargo area which did not have

seat belts. The Commonwealth showed she was driving at

approximately ninety miles per hour on the highway and

made a lane change that resulted in the loss of control

over her vehicle, causing it to flip over and eject the

children in the cargo area, killing them. Id. at 306.

By contrast, while the Commonwealth was able to secure

a motor vehicle homicide conviction on the basis of

negligence due to a missing alarm on a commercial truck

indicating it was backing up, it was not able to prove

involuntary manslaughter by wanton or reckless conduct.

Commonwealth v. Angelo Todesca Corp., 446 Mass. 128,

132, 138-139 (2006); see Earle, 458 Mass. at 347

(wanton or reckless conduct required for involuntary

manslaughter conviction). In Angelo Todesca, the

driver of an asphalt delivery truck backed up his truck

into the path of the police officer directing traffic

and killed him. Id. at 130-132. The driver backed up

slowly to drop his asphalt, knowing the officer had

-12-

just been in the vicinity, but other drivers and

pedestrians realized that he would run into the officer

and blasted their horns and waved their arms but could

not get the driver's attention. Id. at 131. The

driver did not see the victim, who was in the truck's

blind spot but wearing a bright orange raincoat, until

his vehicle had pinned him underneath the rear axle,

whereupon he immediately pulled forward so the officer

would be free. Id.

Here, while the Commonwealth presented evidence

that Mr. Guaman may have been under the influence of

alcohol, may not have stopped at the stop sign and may

not have continued driving after the collision with Mr.

Denice's motorcycle, it presented no evidence that Mr.

Guaman either knew that Mr. Denice was lodged

underneath his “relatively massive” truck or that he

became aware of that fact prior to the police informing

him that he caused Mr. Denice's death. There were no

witnesses to the collision and the Commonwealth's

expert did not establish that Mr. Denice landed within

Mr. Guaman's field of vision after the collision.5

5 The DNA analyst who testified as to the results takenof a finger swipe sample of Mr. Guaman's front

-13-

Contrast Campbell, 394 Mass. at 82 (driver knew victim

was on hood of his car after crash and did not stop

immediately). Like Angelo Todesca's driver, albeit for

a different reason, Mr. Guaman simply could not

understand why people were banging on his truck. He

did not speak or understand English and was

consistently described by witnesses and police officers

as having a blank stare or in a state of shock. He did

not appear to understand the officers or be understood

when ordered out of the vehicle, even when instructed

in Spanish. T3/71-72. The judge was aware that he

came from an indigenous village in the Ecuadorean

Andes, had no right to be in this country, T4/120, and

his cultural background was vastly different from

someone who grew up in the Commonwealth of

Massachusetts. It simply may not have occurred to Mr.

Guaman in his potentially intoxicated state, combined

with his lack of formal education and inability to

passenger quarter panel, top, of his truck indicated that Mr. Denice could have been a contributor to the sample with a random match probability of 1 in 1 withthe Caucasian and Hispanic population. T4/175-176. In other words, Mr. Denice was no more likely to haveleft that sample than any other Caucasian or Hispanicmale. Mr. Guaman was the driver of the vehicle and was not in the passenger's seat.

-14-

understand what people were shouting at him, that Mr.

Denice could have been trapped under his car. Under

these circumstances, this court should not say that the

Commonwealth presented sufficient evidence Mr. Guaman

acted recklessly in that he knowingly ran the risk that

his conduct would result in the death of Mr. Denice.

In enacting G. L. c. 265, §13½ after G. L. c. 90,

§ 24G, the Legislature recognized that drunk drivers

who engage in wanton or reckless conduct deserved

harsher punishment than drunk drivers who only engaged

in negligent conduct. Operating under the influence

by itself is not sufficient to prove wanton or reckless

conduct or negligent conduct when that OUI element is

found in both statutes. See Commonwealth v. Disler,

451 Mass. 216, 227 (2008) (declining to adopt

interpretation that ignores words and phrases in

statute.) Instead, the Court must look to the

unreasonableness of the conduct which caused the death

of Mr. Denice. A holding that intoxication proves

recklessness would render G. L. c. 90, § 24G

superfluous due to its lesser standard of ordinary

negligence. Guaman, 90 Mass. App. Ct. at 46-7; see

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Commonwealth v. Keefner, 461 Mass. 507, 514 (2012)

("statute is not to be deemed to repeal or supersede a

prior statute in whole or in part in the absence of

express words to that effect or of clear implication.")

The Appeals Court's imposition of an objective,

reasonable person standard on Mr. Guaman imposed a

standard on him he could never have met. Guaman, 90

Mass. App. Ct. at 40-1. The implication in the Court's

opinion, that an ordinary resident of the Commonwealth

would have recognized the danger in continuing to drive

or to have heeded the warnings of the local residents,

is a reasonable one. However, Mr. Guaman did not speak

the language, was not well-educated, was raised in very

different circumstances and a faraway part of the world

and did not have any information about where Mr. Denice

landed in relation to his truck. "[T]here was a degree

of uncertainty as to what [Mr. Guaman] would have seen

or appreciated, and [the Court has noted] that mere

mistake of judgment or gross negligence did not satisfy

the manslaughter standard." Earle, 458 Mass. at 350.

The holding by the Appeals Court could lead to a

slippery slope where a later court could hold that

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someone like Mr. Guaman engaged in unreasonable conduct

by coming to this country illegally without sufficient

education and basic English literacy. Contrast

Commonwealth v. Acen, 396 Mass. 472, 481 (1986) ("For

purposes of the equal protection clause it is settled

that most classifications based on alienage are

inherently suspect and subject to close judicial

scrutiny.")

When applying the reckless and wanton standard,

the Courts have applied it to conduct where the danger

would be very obvious to a person either objectively or

subjectively. In Welansky, 316 Mass. at 399-401, a

night club owner was held to have been wanton or

reckless in closing off virtually every means of egress

from his crowded night club which caught fire. The

defendant's failure to care for his 91-year old mother

in Commonwealth v. Cruz, 88 Mass. App. Ct. 206, 209-10

(2015), leaving her in a recliner she could not get out

of unaided and in filthy conditions causing her to

develop sores the size of softballs, showed wanton or

reckless conduct. But even reasonable persons are not

presumed to possess any particular sophisticated level

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of understanding. In the case the Appeals Court cites,

Commonwealth v. Pugh, 462 Mass. 482, 505-6 (2012), this

Court declined to hold pregnant women to a standard

requiring them to summons medical assistance to assist

in all live births. Similarly, in Commonwealth v.

Michaud, 389 Mass. 491, 498 (1983), the Court declined

to hold a nursing mother to an alternate feeding method

of her three-week old child when there was only some

evidence of weight loss and the child looking pale.

The Court cannot expect Mr. Guaman to be able to

accurately predict the trajectory and landing of Mr.

Denice's body when the Commonwealth's expert did not

even approach that subject. Ultimately, the Court

should hold that the Commonwealth failed to show that

Mr. Guaman's conduct was not subjectively or

objectively wanton or reckless.

Conclusion

For the foregoing reasons, the defendant’s

Application for Further Appellate Review should be

granted.

Respectfully Submitted,Defendant, by counsel :

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/s/ Ethan C. Stiles Ethan C. Stiles, Esq.P.O. Box 232Plympton, MA 02367ecstileslaw@gmail.com(781) 312-7520

September 6, 2016 BBO #661083

Certificate of Service

I certify under the penalties of perjury that I mailed a copy of this Application to the Commonwealth on the above date.

/s/ Ethan C. Stiles Ethan C. Stiles, Esq.

NeutralAs of: September 5, 2016 6:51 PM EDT

Commonwealth v. Guaman

Appeals Court of Massachusetts

May 2, 2016, Argued; August 17, 2016, Decided

No. 14-P-1965.

Reporter90 Mass. App. Ct. 36; 2016 Mass. App. LEXIS 102

COMMONWEALTH vs. NICOLAS DUTAN GUAMAN.

Prior History: [**1] Worcester. INDICTMENTS found and returned in the Superior Court Department on October 21, 2011.

The cases were heard by David Ricciardone, J.Commonwealth v. Guaman, 2013 Mass. Super. LEXIS 51 (Mass. Super. Ct., 2013)

Core Terms

truck, motor vehicle, manslaughter, homicide, reckless, wanton, drive, drunk, reckless conduct, recording, felony, translation, Street, beer, convictions, cousin, drove, requires proof, excited, involuntary manslaughter, duplicative, dispatcher, motorcycle, punishable, admitting, utterance, lesser, tests, defense counsel, Instructions

Case Summary

Overview

HOLDINGS: [1]-Sufficient evidence supported defendant’s conviction for operating a motor vehicle under the influence of intoxicating liquor (OUI) manslaughter under Mass. Gen. Laws Ann. ch. 265, § 13½ because it was reasonable to have found that defendant intentionally drove his truck in a wanton or reckless manner. While driving drunk, defendant hit a motorcycle causing the motorcycle and the rider to hit his windshield, and kept driving, dragging the victim to his death, in spite of the screams of the victim and the yelling and pounding on his truck by witnesses; [2]-Because all of the elements of felony motor vehicle homicide under Mass. Gen. Laws Ann. ch. 90, § 24G(a) were included within the of OUI manslaughter, it was a lesser-included offense and the defendant's convictions for both crimes were duplicative.

OutcomeJudgment affirmed in part, however, the judgment of conviction of felony motor vehicle homicide was reversed as duplicative, the verdict was set aside, and the indictment was to be dismissed.

LexisNexis® Headnotes

Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

HN1 There must be adequate evidentiary support for each essential element of the offense.

Criminal Law & Procedure > ... > Vehicular Crimes > Vehicular Homicide > Elements

Criminal Law & Procedure > ... > Vehicular Crimes > Driving Under the Influence > Elements

Criminal Law & Procedure > ... > Homicide, Manslaughter & Murder > Involuntary Manslaughter > Elements

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Recklessness

HN2 Mass. Gen. Laws Ann. ch. 265, § 13 1/2, inserted by 2005 Mass. Acts 122, § 20 (known as "Melanie's Law"), punishes whoever commits manslaughter while operating a motor vehicle in violation of paragraph (a) of subdivision (1) of section 24 of chapter 90. Mass. Gen. Laws Ann. ch. 90, § 24(1)(a), incorporated by reference in the OUI manslaughter statute, punishes operating a motor vehicle under the influence of intoxicating alcohol (OUI). Thus, 265, § 13 1/2 265, § 13 1/2, consists of the elements of manslaughter plus the elements of OUI. The crime requires proof of involuntary manslaughter based on wanton or reckless conduct. The elements of involuntary manslaughter are: (1) that the defendant caused the victim's death; (2) that the defendant intended the conduct that caused the victim's death; and (3) that the defendant's conduct was wanton or reckless.

Page 2 of 10

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Recklessness

Criminal Law & Procedure > ... > Homicide, Manslaughter & Murder > Involuntary Manslaughter > Elements

Criminal Law & Procedure > ... > Vehicular Crimes > Vehicular Homicide > Elements

HN3 Involuntary manslaughter may consist of a battery causing death in circumstances in which the defendant is, or should be, cognizant of the fact that the battery he is committing endangers human life. A violation of Mass. Gen. Laws Ann. ch. 265, § 13 1/2, could conceivably be proven under an involuntary manslaughter theory of battery or under a voluntary manslaughter theory of intentional infliction of injury, but such proof is often unavailable when a drunk driver causes a homicide — and unnecessary when the driver's conduct is wanton or reckless.

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Recklessness

Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

HN4 Proof of wanton or reckless conduct requires more than a mistake of judgment or even gross negligence. Wanton or reckless conduct is defined as intentional conduct, which conduct involves a high degree of likelihood that substantial harm will result to another. What must be intended is the conduct, not the resulting harm. The Commonwealth may prove wanton or reckless conduct under a subjective standard, based on the defendant's specific knowledge, or an objective standard, based on what a reasonable person should have known under the circumstances. If, based on the subjective measure, i.e., the defendant's own knowledge, grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If, based on the objective measure of recklessness, the defendant's actions constitute wanton or reckless conduct if an ordinary normal man under the same circumstances would have realized the gravity of the danger.

Evidence > ... > Exceptions > Spontaneous Statements > Excited Utterances

HN5 A spontaneous utterance is admissible if: (1) there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer; and (2) if the declarant's statement was a

spontaneous reaction to the occurrence or event and not the result of reflective thought. To determine whether a statement meets this test, a judge may consider the degree of excitement displayed by the person making the statements, whether the statement is made at the place where the traumatic even occurred or at another place, the temporal closeness of the statement to the act it explains, and the degree of spontaneity shown by the declarant. The statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated.

Evidence > ... > Exceptions > Spontaneous Statements > Excited Utterances

HN6 Even responses to a dispatcher's question may be admissible as spontaneous utterances.

Evidence > Types of Evidence > Demonstrative Evidence > Recordings

Evidence > ... > Documentary Evidence > Transcripts & Translations > Translations

HN7 When the Commonwealth seeks to introduce a recorded statement in a language other than English, the prosecutor may not offer the recorded statement in evidence without an English-language transcript. In these cases, the only evidence of the content of the recorded words is the English-language transcript, not the foreign language recording. The procedure for the admission of English-language transcripts requires, first, the prosecutor must provide defense counsel an English-language transcript sufficiently in advance of trial to enable defense counsel to determine whether agreement can be reached regarding the transcript or whether a translator should be retained to prepare and defend a different English-language transcript. If the parties are unable to agree on a translation, each may offer its own transcript through the testimony of a translator who meets the criteria to be considered an expert in the foreign language.

Criminal Law & Procedure > Sentencing > Multiple Convictions

Criminal Law & Procedure > Criminal Offenses > Lesser Included Offenses > Elements

HN8 A defendant may be punished for two crimes arising out of the same conduct so long as each crime requires proof of an element that the other does not. A lesser offense is considered duplicative of a greater

90 Mass. App. Ct. 36, *36; 2016 Mass. App. LEXIS 102, **1

Page 3 of 10

offense if all of its elements are included within the greater offense. But, if the lesser crime requires proof of an additional fact that the greater crime does not, then it is not a lesser included offense of the greater crime. As long as each offense requires proof of an additional element that the other does not, neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not duplicative.

Criminal Law & Procedure > ... > Vehicular Crimes > Vehicular Homicide > Elements

HN9 Felony motor vehicle homicide requires proof that the defendant: (1) on a public way; (2) while operating a motor vehicle; (3) under the influence of intoxicating liquor (or with a blood alcohol level of.08; or higher) (4) operated a motor vehicle recklessly or negligently so that the lives and safety of the public might be endangered; (5) causing the victim's death. Mass. Gen. Laws Ann. ch. 90, § 24G(a). As to the element of operating recklessly or negligently, a finding of ordinary negligence suffices to establish homicide by motor vehicle as defined in Mass. Gen. Laws Ann. ch. 90, § 24G.

Criminal Law & Procedure > ... > Homicide, Manslaughter & Murder > Involuntary Manslaughter > Elements

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Recklessness

Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Negligence

HN10 Recklessness is intentional conduct; therefore, to convict for involuntary manslaughter, or any other crime requiring wanton or reckless conduct, the Commonwealth must prove that the defendant intended the conduct — though not necessarily the result. It is the consciousness of the risk that defines recklessness whether the defendant actually appreciates the danger he is causing or, given his knowledge, should have appreciated the danger. Negligence, on the other hand, lacks the element of intent. Indeed, reckless operation is defined as going beyond mere negligence. Thus, the element of negligent operation in the crime of motor vehicle homicide is included within the element of reckless operation in the crime of OUI manslaughter. A juror finding the defendant's operation of his motor vehicle to be reckless implicitly must also have found his operation to be negligent so as to endanger the lives or safety of the public. In proving that the defendant intentionally drove his truck in a wanton or reckless manner to sustain his conviction of operating a motor

vehicle under the influence of intoxicating liquor (OUI) manslaughter, the Commonwealth necessarily proved that he operated the truck negligently. As all of the elements of felony motor vehicle homicide are included within the elements of OUI manslaughter, it is a lesser-included offense.

Headnotes/Syllabus

Headnotes

MASSACHUSETTS OFFICIAL REPORTS HEADNOTES

Motor Vehicle > Operating under the influence > Homicide > Homicide > Wanton or Reckless Conduct > Evidence > Spontaneous utterance > Practice, Criminal > Required finding > Transcript of evidence > Duplicative punishment

At the trial of an indictment charging manslaughter while operating a motor vehicle under the influence of intoxicating liquor in violation of G. L. c. 265, § 13½, evidence that the defendant chose to drive after he was visibly drunk and even his nine year old niece had warned him not to take his son with him (i.e., the defendant's drunkenness as a factor towards proof of recklessness), and that he continued to drive his truck after he hit the victim, causing the victim and the victim's motorcycle to roll over the truck's hood and crash into the windshield, was sufficient to sustain his conviction, where a rational trier of fact could have found beyond a reasonable doubt that the defendant intentionally drove his truck in a wanton or reckless manner. [39-41]

At the trial of an indictment charging manslaughter while operating a motor vehicle under the influence of intoxicating liquor in violation of G. L. c. 265, § 13½, the judge did not abuse his discretion in the admission of an audio recording of a 911 call made by the defendant's nine year old niece after she saw the defendant drive off with her six year old cousin as a passenger, where her initial statements were made under the influence of the traumatizing event of watching her cousin drive away with her drunk uncle, and where, even if the influence of that event dissipated during the rest of her conversation with the dispatcher (and no longer qualified as an excited utterance), it was not hearsay in that none of her statements identifying the defendant and his vehicle was used at trial for its truth [41-43]; moreover, any error in the admission of the call was not prejudicial, in that

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the content of the call had little, if any, effect on the verdict [43].

At the trial of an indictment charging manslaughter while operating a motor vehicle under the influence of intoxicating liquor in violation of G. L. c. 265, § 13½, there was no error or abuse of discretion in the admission of portions of an English-language transcript of a video recording of the defendant's sobriety tests at the police station (which were conducted in Spanish), where the Commonwealth followed to the letter the proper protocol for the introduction of a recorded statement in a language other than English, providing defense counsel (who obtained funds for an interpreter to assist with trial preparation) with the video recording and an English-language transcript such that the defendant had ample opportunity to review and verify the translation, but raised no objection until the moment it was offered at trial. [*37] [43-45]

This court concluded that a criminal defendant's convictions of manslaughter while operating a motor vehicle under the influence of intoxicating liquor in violation of G. L. c. 265, § 13½, and of felony motor vehicle homicide in violation of G. L. c. 90, § 24G(a), were duplicative, in that all of the elements of felony motor vehicle homicide are included within the elements of manslaughter while operating a motor vehicle under the influence of intoxicating liquor; accordingly, this court vacated the lesser included offense, i.e., felony motor vehicle homicide. [45-47]

Counsel: Ethan C. Stiles for the defendant.

Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

Judges: Present: AGNES, MASSING, & KINDER, JJ.

Opinion by: MASSING

Opinion

MASSING, J. Following an afternoon of drinking beer, the defendant, Nicolas Dutan Guaman, drove off in his pickup truck, struck a motorcyclist, and continued to drive for several blocks while dragging the victim to his death. The defendant appeals from his convictions of manslaughter while operating a motor vehicle under the influence of intoxicating liquor in violation of G. L. c. 265, § 13 ½ (OUI manslaughter), felony motor vehicle homicide in violation of G. L. c. 90, § 24G(a), and other

related charges.1 He claims that the evidence was insufficient to prove that he knowingly engaged in wanton or reckless conduct to sustain his conviction of OUI manslaughter. In addition, he contests evidentiary rulings admitting the recording of a 911 call and an English translation of his video-recorded sobriety tests. We affirm, but because felony motor vehicle homicide is [**2] a lesser included offense of OUI manslaughter and the defendant cannot be punished for both, we vacate the conviction and sentence for felony motor vehicle homicide.

Background. As the defendant challenges the sufficiency of the evidence, we recite the facts in the light most favorable to the Commonwealth to determine whether a rational trier of fact could find the defendant guilty of the charges beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 [*38] (1979); Commonwealth v. Giavazzi, 60 Mass. App. Ct. 374, 376, 802 N.E.2d 589 (2004) (HN1 “There must be adequate evidentiary support for each essential element of the offense”).

At about 7:50 P.M. on August 20, 2011, the defendant, driving his black Ford F-150 pickup truck with his six year old son Jonathan and his brother as passengers, rolled through a stop sign on Fayette Street in Milford. Matthew Denice was driving his motorcycle up Congress Street when the defendant's truck pulled out in front of him. As the victim quickly applied his brakes, the front driver's [**3] side of the truck hit the motorcycle. Motorcycle and rider rolled over the hood of the truck, crashed into the windshield, and landed on the passenger's side. After a moment's hesitation, the defendant quickly accelerated and drove south on Congress Street.

The victim, separated from his motorcycle, somehow got tangled with his legs beneath the chassis of the truck. A number of people saw the defendant's truck drag the victim along the street. At first the victim banged on the truck and yelled for the defendant to stop, but the truck continued moving down Congress Street, turned right on West Street, and then attempted to turn left on Bancroft Street. The victim emitted

1 Reckless endangerment of a child, G. L. c. 265, § 13L; leaving the scene of an accident causing death, G. L. c. 90, § 24(2)(a ½)(2); failure to stop, G. L. c. 90, § 25; and operating a motor vehicle without a license, G. L. c. 90, § 10. The judge, sitting without a jury, found the defendant not guilty on an indictment charging him with murder in the second degree, G. L. c. 265, § 1.

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“bloodcurdling” screams as he was dragged along the road. As the truck drove on, dragging the victim for a nearly one-quarter of a mile, several witnesses banged on the truck or yelled for the defendant to stop, but the defendant continued to drive, outpacing the people who were trying to get his attention.

Unable to turn left because of damage to the truck, the defendant drove onto the curb, put the truck in reverse, and then accelerated down Bancroft Street. This maneuver released the victim, who was left lying in the [**4] street. One of the first police officers on the scene attended to the victim. When the officer removed the victim's helmet, he took a final breath and died.

Other officers pursued the defendant's truck. He ignored their lights and sirens and sped up. At last the defendant turned down a narrow street and the officers were able to force his truck to a stop. He did not respond to orders to get out of the truck, so the officers pulled him out. His eyes were bloodshot and extremely glassy, he was unsteady on his feet, and his breath smelled strongly of alcohol. The interior of the truck also reeked of alcohol and was littered with empty beer cans, open cans that were still cold, and the remainder of a thirty-pack of beer.

During the course of the arrest the police realized that the defendant did not speak English. A Spanish-speaking officer, [*39] Angel Arce, took over the arrest. Arce had little trouble communicating with the defendant, although it later became known that the defendant was a native of Ecuador and spoke both the Quechua language and a dialect of Spanish. The police took the defendant to the police station, where Arce conducted sobriety tests and then booking procedures, which were video [**5] recorded. The defendant was unable to follow instructions and at one point informed Arce that he was having difficulty with the tests because he had drunk six beers.

The defendant had been drinking for several hours before he hit the victim's motorcycle. Earlier that afternoon, around 4:30 P.M., the defendant had driven his truck to his brother's apartment in Milford and parked behind the building. The defendant brought Jonathan with him, as well as a supply of beer. He already appeared drunk.

The defendant and his brother drank beer in and around the truck and the back porch, while Jonathan played in the backyard with his nine year old cousin Vivian (the defendant's brother's stepdaughter) and other neighborhood children. After an hour or two, in which

the defendant drank at least five cans of beer, the defendant, Jonathan, and his brother got in the truck to drive away. Concerned for her cousin's safety, Vivian told Jonathan not to get into the truck because his father was drunk. She also told the defendant not to take Jonathan. When the defendant nonetheless drove away with his son and brother, Vivian, scared and worried that something would happen, called her mother. When her mother [**6] arrived home soon after, Vivian called 911 at 6:15 P.M. to report that the defendant was driving drunk with her cousin in the truck.

Discussion. 1. Sufficiency of the evidence — wanton or reckless conduct. HN2 General Laws c. 265, § 13 ½, inserted by St. 2005, c. 122, § 20 (known as “Melanie's Law”), punishes “[w]hoever commits manslaughter while operating a motor vehicle in violation of paragraph (a) of subdivision (1) of section 24 of chapter 90.” General Laws c. 90, § 24(1)(a), incorporated by reference in the OUI manslaughter statute, punishes operating a motor vehicle while under the influence of intoxicating alcohol (OUI). Thus, G. L. c. 265, § 13 ½, consists of the elements of manslaughter plus the elements of OUI.

On the facts of this case, as in most scenarios in which OUI manslaughter would be charged, the crime requires proof of [*40] involuntary manslaughter based on wanton or reckless conduct.2 See Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 83, 951 N.E.2d 731 (2011). The elements of involuntary manslaughter are (1) that the defendant caused the victim's death, (2) that the defendant intended the conduct that caused the victim's death, and (3) that the defendant's conduct was wanton or reckless. See Commonwealth v. Welansky, 316 Mass. 383, 397, 55 N.E.2d 902 (1944) (Welansky); Commonwealth v. Life Care Centers of America, Inc., 456 Mass. 826, 832, 926 N.E.2d 206 (2010); Model Jury Instructions on Homicide 75 (2013).

2 “Alternatively, HN3 involuntary manslaughter may consist of a battery causing death [**7] in circumstances in which the defendant ‘is, or should be, cognizant of the fact that the battery he is committing endangers human life.’” Commonwealth v. Knight, 37 Mass. App. Ct. 92, 103, 637 N.E.2d 240 (1994), quoting from Commonwealth v. Catalina, 407 Mass. 779, 787, 556 N.E.2d 973 (1990). A violation of G. L. c. 265, § 13 ½, could conceivably be proved under an involuntary manslaughter theory of battery or under a voluntary manslaughter theory of intentional infliction of injury, but such proof is often unavailable when a drunk driver causes a homicide — and unnecessary when the driver's conduct is wanton or reckless.

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The defendant challenges the sufficiency of the evidence only with respect to the mens rea element of wanton or reckless conduct (he does not contend that the evidence was insufficient to prove that he caused the victim's death while OUI). His defense at trial was that he did not realize that he was dragging the victim and that, because of language and cultural barriers, he did not understand what the people on the street were trying to communicate to him. He asserts that the Commonwealth failed to prove that he acted recklessly in that he knowingly ran the risk that his conduct would result in the victim's death.

HN4 Proof of wanton or reckless conduct requires “more than a mistake of judgment or even gross negligence.” [**8] Commonwealth v. Michaud, 389 Mass. 491, 499, 451 N.E.2d 396 (1983). Wanton or reckless conduct is defined as “intentional conduct, … which conduct involves a high degree of likelihood that substantial harm will result to another.” Welansky, supra at 399. “What must be intended is the conduct, not the resulting harm.” Id. at 398.

The Commonwealth may prove wanton or reckless conduct under a subjective standard, based on the defendant's specific knowledge, or an objective standard, based on what a reasonable person should have known under the circumstances. Commonwealth v. Pugh, 462 Mass. 482, 496, 969 N.E.2d 672 (2012). “If based on the subjective measure, i.e., the defendant's own knowledge, ‘grave danger to others must have been apparent and the defendant must [*41] have chosen to run the risk rather than alter [his] conduct so as to avoid the act or omission which caused the harm.’” Id. at 497, quoting from Welansky, supra. “If based on the objective measure of recklessness, the defendant's actions constitute ‘wanton or reckless conduct … if an ordinary normal [man] under the same circumstances would have realized the gravity of the danger.’” Id. at 496-497, quoting from Welansky, supra at 398-399.

Here, a rational trier of fact (in this case, the trial judge) could have found beyond a reasonable doubt that the defendant intentionally drove his truck [**9] in a wanton or reckless manner. To begin, the defendant chose to drive after he was visibly drunk and even his nine year old niece had warned him not to take his son with him. While evidence of the defendant's drunkenness standing alone may not have been sufficient to prove wanton or reckless conduct where, as here, the separate element of impairment must also be proved, but see Commonwealth v. Scott, 359 Mass. 407, 410, 269 N.E.2d 454 (1971) (evidence sufficient “to warrant

the jury to find that in driving his automobile while his mental and physical faculties were substantially impaired by the effect of intoxicating liquor, the defendant committed a wanton or reckless act”), the trier of fact may properly consider the defendant's decision to drive while drunk as a factor toward proof of recklessness. See Commonwealth v. Dyer, 77 Mass. App. Ct. 850, 857 n.9, 934 N.E.2d 293 (2010).

Furthermore, the defendant continued to drive his truck after he hit the victim, causing the victim and his motorcycle to roll over the truck's hood and crash into the windshield. Even if the defendant did not actually apprehend the grave danger of continuing to drive, any ordinary person in his circumstances would have. Notwithstanding banging on the truck by the victim and witnesses, people yelling at him to stop, and the victim's screams, the defendant [**10] drove on. A rational trier of fact could have found that the defendant intentionally ignored a plethora of readily apparent warning signs. Even if the judge credited the defendant's claim that he did not understand what was happening, the judge could have convicted based solely on the determination that any reasonable person in the defendant's place would have realized the danger of continuing to drive. The evidence was sufficient to convict the defendant of OUI manslaughter.

2. Admissibility of 911 call as excited utterance. The defendant filed a motion in limine to exclude from evidence the audio recording of the 911 call that his nine year old niece Vivian made to the police shortly after she saw him drive off with her six [*42] year old cousin as a passenger. In connection with the motion, the parties submitted a transcript of Vivian's pretrial deposition. Based on the deposition testimony, the judge concluded that Vivian's concern for her cousin's safety was sufficient “to constitute a level of excitement necessary” to admit the call under the spontaneous utterance exception to the hearsay rule.3

3 HN5 A spontaneous utterance is admissible “if (1) there is an occurrence or event ‘sufficiently [**11] startling to render inoperative the normal reflective thought processes of the observer,’ and (2) if the declarant's statement was ‘a spontaneous reaction to the occurrence or event and not the result of reflective thought.’” Commonwealth v. Santiago, 437 Mass. 620, 623, 774 N.E.2d 143 (2002), quoting from 2 McCormick, Evidence § 272, at 204 (5th ed. 1999). See Mass. G. Evid. § 803(2) (2016). To determine whether a statement meets this test, a judge may consider “the degree of excitement displayed by the person making the statements, whether the statement is made at the place where the

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The dispatcher who received the call testified to authenticate the recording, which was then admitted and played for the judge. The defendant renewed his objection. Although after listening to the recording the judge stated that Vivian “seemed a little calmer [**12] than he expected,” and that as the call went on “she was responding to questions and, therefore, reflecting on what she was saying, which is the antithesis of excited utterance,” he concluded that “on balance” her motivation to make the call was her concern that her cousin was in peril, and he held the recording to be admissible.

The judge did not abuse his discretion in admitting the recording. See Commonwealth v. Simon, 456 Mass. 280, 296, 923 N.E.2d 58 (2010). Nine year old Vivian took the extraordinary step of calling 911 because she was concerned that her cousin was in danger. Her initial statements — which included the only part of the call admitted for its truth, the assertion that the defendant was drunk — up to her asking, “What can we do?” were made under the influence of the traumatizing event of watching her cousin drive away with her drunk uncle. HN6 Even responses to a dispatcher's question may be admissible as spontaneous utterances. See Ibid. To the extent the influence of the traumatic event dissipated dur- [*43] ing the rest of Vivian's conversation with the dispatcher and it no longer qualified as an excited utterance, it was not hearsay either, as none of Vivian's statements identifying the defendant and his vehicle made assertions that [**13] were used at trial for their truth.

Moreover, any error in admitting the call was not prejudicial.4 The Commonwealth produced ample

traumatic even occurred or at another place, the temporal closeness of the statement to the act it explains, and the degree of spontaneity [shown by the declarant].” Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 415, 771 N.E.2d 193 (2002) (citations and quotations omitted). “[T]he statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated.” Commonwealth v. McLaughlin, 364 Mass. 211, 223, 303 N.E.2d 338 (1973), quoting from Wigmore on Evidence § 1750 (3d ed. 1961).

4 The recording begins with Vivian telling the dispatcher that her stepfather was “drinking beer with his brother … in the car and his brother has a little kid in the car and drinking beers. … His brother is kind of drunk too, and his brother has a kid, a little kid, that's kind of like six or five years old.” When asked, “What's the emergency?,” Vivian said, “He's like drunk.” When

evidence, including Vivian's in-court testimony, that the defendant was drunk. The most devastating aspect of Vivian's call was not that she said the defendant was drunk, but that she was so worried about his driving in that condition that she felt the need to place the call. The content of the call had little, if any, effect on the verdict. See Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994).

3. Translated transcript of stationhouse video. The defendant also contends that the judge erred in admitting four pages of an English-language transcript of the video recording of the defendant's sobriety tests at the police station, conducted in Spanish, in which the defendant is reported to say, “I had about six beers.”

Officer Arce, who conducted the sobriety tests and the booking procedure, testified about his questions, the defendant's answers, and how the defendant performed on each of the tests. Arce and the defendant were able to understand each other, albeit with some difficulty. The Commonwealth introduced the videotape of the interview in evidence with no objection, but when the Commonwealth sought to admit an English-language transcript of the conversation, the defendant objected, relying on the best evidence rule (“It's not the best evidence. The best evidence is the video”), and contending that Officer Arce was not qualified to verify the [*44] translation of [**15] the defendant's Spanish dialect. On appeal, he makes the slightly different argument that the Commonwealth was required to produce expert testimony from a qualified translator in order to introduce the transcript. We discern no error.

Contrary to the defendant's “best evidence” argument at trial, HN7 when the Commonwealth seeks to introduce a recorded statement in a language other than English,

the dispatcher first began to question Vivian, she asked, “What can we do?” For the remainder of the call, the dispatcher asked questions aimed at identifying the vehicle and its occupants. Because Vivian testified at trial and the defendant had an opportunity to cross-examine her, the admission of the 911 call did not implicate [**14] constitutional confrontation clause concerns. See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Commonwealth v. King, 445 Mass. 217, 236-237, 834 N.E.2d 1175 (2005); Commonwealth v. Napolitano, 42 Mass. App. Ct. 549, 555, 678 N.E.2d 447 (1997). Because the defendant preserved his hearsay objection at trial, “[w]e evaluate whether the admission of this information, if classified as hearsay, could constitute prejudicial error.” Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 680, 948 N.E.2d 1258 (2011).

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“the prosecutor may not offer the recorded statement in evidence without an English-language transcript.” Commonwealth v. Portillo, 462 Mass. 324, 328, 968 N.E.2d 395 (2012) (Portillo). “In these cases, the only evidence of the content of the recorded words is the English-language transcript, not the foreign language recording.” Ibid. (Emphasis in original).

Portillo set forth the procedure for the admission of English-language transcripts. First, “the prosecutor must provide defense counsel an English-language transcript sufficiently in advance of trial to enable defense counsel to determine whether agreement can be reached regarding the transcript or whether a translator should be retained to prepare and defend a different English-language transcript.” Id. at 330. If the parties are unable to agree on a translation, each may offer its own transcript “through the testimony [**16] of a translator who meets the criteria to be considered an expert in the foreign language.” Id. at 329.

The Commonwealth followed the Portillo protocol to the letter, providing defense counsel with the video recording and the transcript with its discovery materials on December 13, 2011.5 On May 15, 2013, defense counsel obtained funds for an interpreter to assist with trial preparation. Thus, the defendant had ample time and opportunity to review and verify the translation, but he did not raise any objection until the moment the prosecutor offered it in evidence at trial. Even then, he did not make any argument that the translation was inaccurate or unreliable. The prosecutor provided the transcript to defense counsel well before offering it in evidence, as the Portillo protocol requires, “leaving sufficient time to resolve in advance of trial any questions regarding the accuracy of the translation.” Id. at 332 (emphasis supplied). The defendant raised his objection far too late to contest the transcript's accuracy or to permit the Commonwealth to produce an expert to verify it. At this point in the trial, the [*45] judge did not err or abuse his discretion in allowing the only available translation in [**17] evidence.

4. Duplicative punishment. Finally, the defendant contends that his convictions of OUI manslaughter under G. L. c. 265, § 13 ½, and of felony motor vehicle

5 By providing the defendant with its English-language transcript on December 13, 2011, the Commonwealth actually anticipated the rule announced in the Portillo decision, which was issued on May 29, 2012. The trial in this case took place in May, 2014, almost two years after publication of Portillo.

homicide under G. L. c. 90, § 24G(a), violate the prohibition against “duplicative” convictions because felony motor vehicle homicide is a lesser included offense of OUI manslaughter.6 We agree.

HN8 A defendant may be punished for two crimes arising out of the same conduct so long as each crime [**18] requires proof of an element that the other does not. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871); Commonwealth v. Vick, 454 Mass. 418, 431-432, 910 N.E.2d 339 (2009) (Vick); Commonwealth v. Flanagan, 76 Mass. App. Ct. 456, 462, 923 N.E.2d 101 (2010). A lesser offense is considered duplicative of a greater offense if all of its elements are included within the greater offense. Ibid. But “[i]f the lesser crime requires proof of an additional fact that the greater crime does not, then it is not a lesser included offense of the greater crime.” Commonwealth v. Murray, 51 Mass. App. Ct. 57, 60, 742 N.E.2d 1107 (2001). “As long as each offense requires proof of an additional element that the other does not, ‘neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].’” Vick, supra at 431, quoting from Commonwealth v. Jones, 382 Mass. 387, 393, 416 N.E.2d 502 (1981).

The defendant's conviction of OUI manslaughter required proof of the elements of involuntary manslaughter — (1) that the defendant caused the victim's death, (2) that the defendant intended the conduct that caused the victim's death, and (3) that the defendant's conduct was wanton or reckless — plus the elements of OUI — (4) that the defendant operated a motor vehicle (5) on a public way (6) while under the influence of intoxicating liquor (or with a blood alcohol level of .08 or higher). See G. L. c. 90, § 24(1)(a); Commonwealth v. Colturi, 448 Mass. 809, 817-818, 864 N.E.2d 498 (2007); Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 20, 943 N.E.2d 477 (2011). HN9 Felony motor vehicle homicide requires proof [**19] that the [*46] defendant (1) on a public way (2) while operating

6 OUI manslaughter is punishable by a State prison term of up to twenty years, with a mandatory minimum term of five years. See G. L. c. 265, § 13 ½. Felony motor vehicle homicide is punishable by a State prison term of up to fifteen years or a house of correction term of up to two and one-half years. See G. L. c. 90, § 24G(a). The judge sentenced the defendant to a term of from twelve to fourteen years on the manslaughter conviction and a concurrent term of from nine to ten years on the motor vehicle homicide conviction.

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a motor vehicle (3) under the influence of intoxicating liquor (or with a blood alcohol level of .08 or higher) (4) “operate[d] a motor vehicle recklessly or negligently so that the lives and safety of the public might be endangered” (5) causing the victim's death. G. L. c. 90, § 24G(a). See Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 36-37, 471 N.E.2d 741 (1984) (Diaz); Commonwealth v. Williams, 73 Mass. App. Ct. 833, 837-838, 903 N.E.2d 222 (2009). As to the element of operating recklessly or negligently, “[a] finding of ordinary negligence suffices to establish homicide by motor vehicle as defined in G. L. c. 90, § 24G.” Diaz, supra at 36. See Commonwealth v. Labelle, 67 Mass. App. Ct. 698, 699, 856 N.E.2d 876 (2006) (Labelle), and cases cited. The felony motor vehicle homicide indictment in this case charged the defendant solely under a theory of negligent operation.

The two crimes share several elements: both include the three elements of OUI and the element of causing the victim's death. The single difference is that OUI manslaughter requires proof that the defendant intentionally engaged in wanton or reckless conduct, whereas felony motor vehicle homicide requires only negligence.7 HN10 Recklessness is intentional conduct; therefore, to convict for involuntary manslaughter, or any other crime requiring wanton or reckless conduct, the Commonwealth must prove that the defendant intended the conduct [**20] — though not necessarily the result. Welansky, 316 Mass. at 398. See Model Penal Code and Commentaries § 2.02 comment 3, at 236 (1985) (“recklessness involves conscious risk creation”). It is the consciousness of the risk that defines recklessness whether the defendant actually appreciates the danger he is causing or, given his knowledge, should have appreciated the danger. See Criminal Model Jury Instructions for Use in the District Court 5.260 [Operating Recklessly] (2009) (Model Instructions) (“A person drives recklessly when he ignores the fact that his manner of driving is very likely to result in death or serious injury to someone, or he is indifferent to whether someone is killed or seriously injured”).

Negligence, on the other hand, lacks the element of intent. See Diaz, supra at 37 (“The essence of the offense of vehicular homicide is negligence, i.e., an

7 Had the Commonwealth proceeded on the felony motor vehicle homicide charge under a theory of reckless operation, its elements would have been identical to those of OUI manslaughter.

unintended act”). Indeed, reckless operation is defined as going “beyond mere negligence.” Model [*47] Jury Instructions 5.260 (“It is not enough for the Commonwealth to prove that the defendant [**21] acted negligently — that is, acted in a way that a reasonably careful person would not. It must be shown that the defendant's actions went beyond mere negligence and amounted to recklessness”). See also Labelle, supra at 700 (“The instruction on reckless conduct conveyed to the jury that to convict on the basis of reckless operation, they were required to find a heightened level of fault substantially in excess of ordinary negligence”).

Thus, the element of negligent operation in the crime of motor vehicle homicide is included within the element of reckless operation in the crime of OUI manslaughter. “A juror finding the defendant's operation of his motor vehicle to be reckless implicitly must also have found his operation to be negligent so as to endanger the lives or safety of the public.” Id. at 699. In proving that the defendant intentionally drove his truck in a wanton or reckless manner to sustain his conviction of OUI manslaughter, the Commonwealth necessarily proved that he operated the truck negligently. As all of the elements of felony motor vehicle homicide are included within the elements of OUI manslaughter, it is a lesser included offense and the defendant's convictions for both crimes [**22] are duplicative. Accordingly, while we affirm the defendant's conviction and sentence for OUI manslaughter, the more serious offense, we must vacate the motor vehicle homicide conviction and sentence. See Commonwealth v. Valliere, 437 Mass. 366, 371-372, 772 N.E.2d 27 (2002).

Conclusion. The judgments on the indictments for OUI manslaughter, reckless endangerment of a child, leaving the scene of an accident causing death, failure to stop, and operating a motor vehicle without a license are affirmed. The judgment of conviction of felony motor vehicle homicide is reversed as duplicative, the verdict is set aside, and the indictment is to be dismissed in the Superior Court.

So ordered.

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