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14-P-1087                                               Appeals Court

                COMMONWEALTH   vs.   KEYLA MARTINEZ.1


                           No. 14-P-1087.

            Suffolk.     March 3, 2015. - June 29, 2015.

            Present:   Kantrowitz, Blake, & Massing, JJ.


Motor Vehicle, Leaving scene of accident.     Practice, Criminal,
     Required finding.


     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on March 7, 2013.

     The case was tried before Robert J. McKenna, Jr., J.


     Sandra E. Lundy for the defendant.
     Alison Taylor Holdway, Special Assistant District Attorney,
for the Commonwealth.


     KANTROWITZ, J.    In a case containing some rather odd facts,

the defendant, Keyla Martinez, was convicted of leaving the

scene of an automobile accident without making known her name,

address, and vehicle registration number under G. L. c. 90,

§ 24(2)(a), despite her offer of the information.       Providing the

     1
       We refer to the defendant by the name appearing in the
complaint.
                                                                       2


required information is necessary under the statute; in this

case, the attempt to provide it was not adequate.

     Background.   Around 12:15 A.M. on January 26, 2013, as the

defendant was driving a station wagon on Main Street in

Charlestown, she "sideswiped" the parked car of Jessica

Cordiero, who was seated in the driver's seat.    At the time,

Cordiero was speaking to her friend, whom she was dropping off

at the friend's residence.2    After the crash, Cordiero could not

exit her car from the driver's side because of the damage.       She

had to move across her car's interior and exit from the

passenger side.

     The defendant's station wagon stopped on the sidewalk.

Cordiero began walking toward the defendant's car.    The

defendant and a passenger both exited the station wagon.     The

defendant's sister, who had been following the defendant in a

third car, also pulled over.    Strangely, the sister then entered

the defendant's station wagon and drove away, leaving the

defendant and Cordiero.3   Cordiero noted the license plate number

on the station wagon, and her friend called the police.

     Cordiero then asked the defendant for her license and

registration.   The defendant responded that she did not have

     2
       The record is unclear as to whether the friend was in the
car at the time of impact.
     3
       The record is unclear as to what the passenger in the
defendant's car did.
                                                                      3


those materials as they were in her station wagon that had been

driven away.    The defendant, however, stated that the station

wagon would return.4    The defendant at some point told Cordiero

that her children were also inside the station wagon.

     The defendant asked Cordiero not to call the police,

stating, "I think we can take care of this between us."

Cordiero replied that the police had already been contacted.

The defendant repeated her desire not to involve the police.

Cordiero testified that she "didn't feel comfortable" with the

suggestion due to the station wagon leaving the scene.

     About fifteen minutes later, the defendant's sister

returned in the station wagon with, according to Cordiero's

testimony, the defendant's license and registration.     The sister

stated that the parties "could take care of this between us and

that we shouldn't involve the police."     Cordiero refused the

defendant's attempt to provide her license and registration

information, preferring to await the arrival of the police, who

"would be there any minute."    The defendant and her sister then

entered the station wagon and left.5     Cordiero did not receive

the defendant's information.6


     4
         How she knew this is unclear.
     5
       Cordiero testified that the defendant and her sister both
left in the station wagon. The record is unclear both as to
what happened to the third car, which the defendant's sister had
earlier been driving, and the passenger in the defendant's car.
                                                                   4


     After about twenty or thirty minutes, the police arrived,

spoke with Cordiero, entered the defendant's license plate

number into a database, and obtained her name and address.     They

then traveled to the defendant's apartment.   Upon arriving, they

saw the damaged station wagon.   The defendant told the officers

that she planned to return to the scene of the accident but did

not specify when.7

     The defendant was charged with, and convicted of, leaving

the scene of an accident without providing her name, address,

and vehicle registration number.   G. L. c. 90, § 24(2)(a).8




     6
       Defense counsel suggested on his cross-examination of
Cordiero that the defendant and her sister attempted to provide
Cordiero with a piece of paper, apparently separate from the
defendant's license and registration. Cordiero testified that
she did not receive any paper. No evidence was produced as to
what information the paper contained, or whether this paper was
something separate from the license and registration.
     7
       An officer testified that the defendant said that "she had
her kids in the car and she was going to go back" to the scene
of the accident.
     8
       The Commonwealth alleged before trial that the defendant
was intoxicated on the night of the accident. No such evidence
was subsequently produced. Initially, the defendant was set to
plead guilty to the charge. The prosecutor then read the
allegations, which included purported observations from
witnesses at the scene that the defendant appeared intoxicated.
The prosecutor also alleged that officers who spoke to the
defendant at her apartment raised the issue of intoxication with
her. At this point of the plea, when the judge asked the
defendant whether she agreed with the allegations, she indicated
that she did not, and the trial commenced.
                                                                     5


     Discussion.   The defendant argues that the judge erred in

denying her motion for a required finding of not guilty because

the evidence was insufficient to show that she failed to make

known her identifying information.   We disagree.

     The Commonwealth must prove five elements to support a

conviction under G. L. c. 90, § 24(2)(a):

     "(1) the defendant operated a motor vehicle (2) on a
     public way (3) and collided with . . . another vehicle
     . . .; (4) the defendant knew that he had collided
     with . . . that other vehicle . . .; and (5) after
     such collision . . ., the defendant did not stop and
     make known his name, address, and the registration
     number of his motor vehicle."

Commonwealth v. Platt, 440 Mass. 396, 400 n.5 (2003).

     The defendant concedes, rightly so, that only the fifth

element is contested here.

     The statute "requires the tendering on the spot and

immediately of explicit and definite information as to himself

of a nature which will identify him readily, and make it simple

and easy to find him thereafter."    Commonwealth v. Horsfall, 213

Mass. 232, 236 (1913) (interpreting predecessor statute).9    When

amending the statute, the Legislature "impos[ed] strict

liability on one who thinks incorrectly that he has made

sufficient disclosure" of identifying information after an


     9
       The statute at issue in Commonwealth v. Horsfall was St.
1909, c. 534, § 22. That statute was a predecessor to G. L.
c. 90, § 24(2)(a). See Commonwealth v. Kraatz, 2 Mass. App. Ct.
196, 200 (1974) (discussing statute's history).
                                                                      6


accident.   Commonwealth v. Kraatz, 2 Mass. App. Ct. 196, 200

(1974).

     Here, a rational jury could have found that the defendant

violated the statute by failing to "stop and make known [her]

name, address, and the registration number of [her] motor

vehicle."   Commonwealth v. Platt, supra.    Ultimately, regardless

of any efforts made, the defendant left the scene of the

accident without making her identifying information known to

Cordiero or the police.   The defendant failed to disclose her

information orally10 and failed to leave the information with

Cordiero in some written form.     The defendant is liable for her

failure, regardless of whether Cordiero's insistence on waiting

for the police was reasonable.11    See Commonwealth v. Kraatz,

supra.


     10
       The court in Commonwealth v. Joyce, 326 Mass. 751 (1951),
suggested in dicta that a party may make known his or her
identifying information by oral disclosure. See id. at 752
("There was no evidence that the defendant, either orally or in
writing, made known his residence or the register number of his
automobile to anyone on behalf of the victim or to any police
officer"). Nothing in the plain text of the statute precludes
making the information known by oral disclosure, such as telling
a police officer or the other party the information, which the
recipient presumably memorializes in some manner. At bottom,
disclosure must culminate in making the information known. In
Joyce, the defendant orally stated his name only, which was
insufficient. It appears in this day and age that parties
involved in a collision merely exchange papers, showing each
other their license and registration.
     11
       Given the unique facts of this case, it is difficult to
fault Cordiero for wishing to wait for the police to arrive.
                                                                   7


     The defendant argues that her obligation under the statute

ended when she offered information to Cordiero.   This argument

confuses offering information with making the information known.

Although the statute "requires the tendering on the spot and

immediately of explicit and definite information," Commonwealth

v. Horsfall, supra, satisfying this requirement does not always

suffice to "make known" the identifying information.

     Here, the defendant offered the required information to

Cordiero, but then left without making that information known.

The defendant easily could have left the material with Cordiero

in some written form.   As she did not, a rational jury could

have found, based on Cordiero's testimony, that the defendant

failed to make that information known.12   As such, the judge

properly denied the motion for a required finding of not guilty.

See Commonwealth v. Platt, 440 Mass. at 400.13


     12
       We can envision certain scenarios, e.g., road rage, an
emergency, etc., which would preclude furnishing the necessary
information, that would not result in a violation of the
statute. Such is clearly not the case here.
     13
       The defendant's other argument, that the prosecutor made
improper remarks in his closing argument, is without merit. The
prosecutor's remarks "fairly responded to defense counsel's
argument" during closing that the defendant acted reasonably and
Cordiero acted unreasonably. Commonwealth v. Smith, 450 Mass.
395, 408 (2008). The judge instructed the jury that closing
arguments are not evidence, and that they should not be swayed
by prejudice or sympathy. The jury are presumed to follow these
instructions. See Commonwealth v. Andrade, 468 Mass. 543, 549
(2014). The claimed error also did not misstate any evidence,
and the Commonwealth's case was strong insofar as it presented
                                                                 8


                                   Judgment affirmed.




undisputed testimony that the defendant left the scene without
making known her identifying information.
