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17-P-460                                              Appeals Court

               COMMONWEALTH   vs.   BRENDAN W. RAY.


                           No. 17-P-460.

       Plymouth.       February 6, 2019. - August 29, 2019.

            Present:    Henry, Lemire, & Ditkoff, JJ.


Practice, Criminal, Dismissal, Citation for violation of motor
     vehicle laws, Delay in commencement of prosecution. Motor
     Vehicle, Operating under the influence, Operating to
     endanger, Citation for violation of motor vehicle law,
     Investigation of accident. Notice.


     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.


    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
                                                                     2


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.1

(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
                                                                     3


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.
                                                                    4


     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, G. L. c. 90, § 20.   A complaint issued from

the District Court, and the defendant was arraigned on the

charges on July 15, 2015.

     On December 4, 2015, the detective testified before a grand

jury.   The defendant's medical records were provided to the
                                                                    5


grand jury and indicated that the defendant had a blood alcohol

level of .17 at the time of his hospitalization and had also

tested positive for marijuana.   The grand jury returned an

indictment on December 7, 2015, charging the defendant with

causing serious bodily injury while operating a motor vehicle

recklessly or negligently and while under the influence of

intoxicating liquor or drugs, G. L. c. 90, § 24L (1).   No

citation was ever issued for this charge.   The District Court

charges were dismissed in favor of the indictment.

     The defendant filed a motion to dismiss the indictment for

failure to provide him with a motor vehicle citation as required

by G. L. c. 90C, § 2.   After an evidentiary hearing in which the

sole witness was the detective, the judge allowed in part the

defendant's motion to dismiss.   Concluding that the negligent

operation charge listed on the initial citation was properly

cited in compliance with G. L. c. 90C, § 2, and that it was a

lesser-included offense of the indicted charge, the judge

permitted the Commonwealth to proceed on the lesser charge.      See

Commonwealth v. Flanagan, 76 Mass. App. Ct. 456, 462-463 (2010)

(all elements of negligent operation within greater crime under

G. L. c. 90, § 24L [1]).1


     1 The partial dismissal is properly before us pursuant to
G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (1), as
amended, 476 Mass. 1501 (2017). See Commonwealth v. Jensen, 459
Mass. 21, 23 (2011). As the defendant has no right of
                                                                    6


    2.   Statutory framework.   Under G. L. c. 90C, § 2, "[a]

failure to give a copy of the citation to the violator at the

time and place of the [automobile law] violation shall

constitute a defense in any court proceeding for such violation,

except [1] where the violator could not have been stopped or

[2] where additional time was reasonably necessary to determine

the nature of the violation or the identity of the violator, or

[3] where the court finds that a circumstance, not inconsistent

with the purpose of this section to create a uniform, simplified

and non-criminal method for disposing of automobile law

violations, justifies the failure."   Where an exception applies,

the statute commands that "the violation shall be recorded upon

a citation as soon as possible after such violation."     G. L.

c. 90C, § 2.   It is undisputed that the defendant never received

a citation for the charge of causing serious bodily injury by

driving recklessly or negligently and while under the influence

of intoxicating liquor or drugs, G. L. c. 90, § 24L (1).     The

Commonwealth, therefore, had the burden to establish that one of

the three statutory exceptions applied.   See O'Leary, 480 Mass.

at 70; Burnham, 90 Mass. App. Ct. at 485 ("Where . . . the

citation was not delivered at the accident scene, the



interlocutory appeal from the denial of a motion to dismiss, the
propriety of allowing the negligent operation charge to remain
is not before us. See Doe v. Commonwealth, 435 Mass. 1001,
1001-1002 (2001).
                                                                   7


Commonwealth bears the burden to establish the applicability of

an exception").   "The statute by its terms requires no showing

of prejudice and . . . our courts have concluded that the

defendant need not show any actual prejudice from the delay."

Commonwealth v. Werra, 95 Mass. App. Ct. 610, 616 (2019).2

     The Commonwealth does not argue that the first exception

justifies the failure to present the defendant with a citation.

Indeed, the defendant was stopped at the time of the incident.

Accordingly, we turn to the second and third exceptions.

     3.   The second exception.   "The second exception to the

requirements of G. L. c. 90C, § 2, excuses delayed delivery of a

citation where 'additional time was reasonably necessary to

determine the nature of the violation.'"    Burnham, 90 Mass. App.

Ct. at 486, quoting Commonwealth v. Pappas, 384 Mass. 428, 431

(1981).   Although the citation, issued on March 20, 2015,

required additional time for the police to complete their

investigation, the same cannot be said for the indictment,

issued over ten months after the accident, that charged the

defendant with causing serious bodily injury by driving

recklessly or negligently and while under the influence of


     2 Although this case involves the failure to issue a
citation at all, rather than the delay in issuance of a
citation, we assume without deciding that the issuance of an
indictment followed by service upon a defendant is the
functional equivalent of a citation. See Commonwealth v.
Kenney, 55 Mass. App. Ct. 514, 519 (2002).
                                                                    8


intoxicating liquor or drugs, G. L. c. 90, § 24L (1).      See

Burnham, supra at 487 ("The ongoing nature of an investigation

may be a significant factor in discerning the reasonableness of

any delay in issuing a citation").

    To be sure, it appears that the Commonwealth could not have

charged the defendant with causing serious bodily injury by

driving recklessly or negligently and while under the influence

of intoxicating liquor or drugs until it had secured the

defendant's medical records.      Nonetheless, the Commonwealth

provided no evidence that these medical records were unavailable

to the government until December 2015, other than the

detective's belief that he lacked probable cause for a search

warrant.   The Commonwealth simply failed to provide any evidence

of how and when it obtained the medical records, much less

evidence justifying the delay between the District Court

arraignment and the Superior Court grand jury presentation.       The

absence of such information provides no confidence that the

additional time was reasonably necessary.      Accordingly, the

motion judge properly found that the Commonwealth failed to show

a reasonable justification for any delay in issuing a citation

beyond March 2015 under the second exception.

    4.     The third exception.   "The third exception to the

requirements of G. L. c. 90C, § 2, is a 'safety valve,' which

excuses delayed delivery of a citation where 'the court finds
                                                                    9


that a circumstance, not inconsistent with the purpose of this

section to create a uniform, simplified and non-criminal method

for disposing of automobile law violations, justifies the

failure.'"   Burnham, 90 Mass. App. Ct. at 488, quoting

Commonwealth v. Riley, 41 Mass. App. Ct. 234, 236 (1996).     We

determine the applicability of this exception with reference to

the dual purposes of G. L. c. 90C, § 2:   "to prevent

'manipulation or misuse of the citation process because of any

unnecessary or unreasonable delay,'" O'Leary, 480 Mass. at 71,

quoting Commonwealth v. Cameron, 416 Mass. 314, 316 n.2 (1993),

and "to afford prompt and definite notice of the nature of the

alleged violation to the putative violator."   O'Leary, supra,

quoting Pappas, 384 Mass. at 431.

    We recognize that, in the face of a serious accident, the

failure to comply strictly with the requirements of G. L.

c. 90C, § 2, may not be fatal to the Commonwealth's case.     See

Burnham, 90 Mass. App. Ct. at 488-489.    In such cases, implicit

or explicit notice is "sufficient because the circumstances

involved serious injuries to third parties, an arrest of the

defendant, more serious charges requiring obvious investigation

such as motor vehicle homicide or leaving the scene after

causing personal injury, verbal notice from law enforcement that

a citation would be forthcoming, actions or statements by a

defendant evincing awareness of criminal conduct, or a
                                                                      10


combination of these factors."   Id. at 489.    See Commonwealth v.

Moulton, 56 Mass. App. Ct. 682, 685 (2002) (seriousness of

accident combined with officer's warning to defendant that

citation would be issued was sufficient to provide defendant

with implicit notice of violation); Commonwealth v. Kenney, 55

Mass. App. Ct. 514, 519-520 (2002) (seriousness of hit and run

accident put defendant on notice of criminal charges despite no

citation being issued); Commonwealth v. Barbuto, 22 Mass. App

Ct. 941, 943 (1986) (seriousness of hit and run accident, among

other things, justified delay in issuing citation).     Indeed,

"there is no bright-line rule to ascertain whether a particular

delay in issuing a citation is justified.      Rather, '[e]ach case

much be decided on its own peculiar facts.'"     Burnham, supra at

485, quoting Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484

(1981).

    Under the circumstances of this case, the defendant had

neither explicit nor implicit notice of the violation at issue.

Our analysis is guided by our decision in Burnham.     There,

following a single-car accident, the police promptly issued the

defendant a citation for operating after the suspension of his

driver's license and a marked lanes violation.     Burnham, 90

Mass. App. Ct. at 484.   More than four months after the first

citation was issued, following the defendant's arrest for an

unrelated incident, the prosecutor reopened the initial
                                                                   11


investigation and, based on the defendant's medical records from

the night of the accident, instructed the investigating officer

to issue the defendant another citation for operating under the

influence of intoxicating liquor.   Id. at 484-485.   We concluded

that the circumstances of the case did not justify delayed

delivery of a citation under the third exception because the

defendant was not on notice that more serious criminal charges

were forthcoming.   Id. at 490.

    The same is true here.    The defendant no doubt had notice

of the possibility of criminal charges arising from the

accident.   Indeed, the detective personally told the defendant

in January 2015 that he could be criminally charged for the

accident.   Nothing, however, provided the defendant with notice

that he should have expected to be charged with more serious

violations than those charged in the March 2015 citation:

negligent operation, a marked lanes violation, and failure to

have the motor vehicle inspected.   The issuance of a citation

for an infraction or a minor criminal charge does not by itself

provide implicit notice of a more serious charge.     See Werra, 95

Mass. App. Ct. at 616, quoting Burnham, 90 Mass. App. Ct. at 490

(dismissal warranted where "the defendant did not have prompt

and definite notice of the offense for which he was charged").

Indeed, the citation issued to the defendant, followed by months

of inaction, was more likely to lead the defendant to believe
                                                                   12


that no more criminal charges were forthcoming.     Moreover,

unlike many cases in which we have applied the third exception,

the defendant received no oral notice that the new charge was

forthcoming.    See, e.g., Moulton, 56 Mass. App. Ct. at 683.

    Despite the serious injuries resulting from the accident,

this is not a case in which those injuries "put the defendant on

notice of the potential charges against him and created an

ineradicable record of the event."   Kenney, 55 Mass. App. Ct. at

520, quoting Commonwealth v. Carapellucci, 429 Mass. 579, 581

(1999).   The accident at issue here, "although not a mere

fleeting traffic incident, was not so serious standing alone to

confer implicit notice on the defendant pursuant to the third

exception."    Burnham, 90 Mass. App. Ct. at 490.   Cases where

notice was sufficient have generally involved the analysis of

many factors, including but not limited to the seriousness of

the injuries.   For example, in Kenney, we concluded that it was

"inconceivable that the defendant would be unaware of the

seriousness of [the] situation," and, therefore, dismissal of

the defendant's indictments was not warranted.      Kenney, supra at

519, quoting Pappas, 384 Mass. at 431-432.    There, the defendant

struck a pedestrian with her car and immediately fled the scene

of the crime.   Kenney, supra at 515.

    Here, there is no indication that the defendant had any

reason to believe a second charge would be issued more than ten
                                                                  13


months after the accident and more than eight months after the

initial citation was issued.   To the contrary, the defendant

reported that he did not remember the accident.   The defendant

did not flee the scene or express any fear of further

prosecution.   Moreover, it appears that the investigating

detective himself thought that the cited charges would be the

extent of the defendant's criminal exposure.   We cannot conclude

that the defendant would be able to predict the issuance of a

new charge, months later, where there is no evidence that the

experienced law enforcement professional predicted this outcome.

Neither the citation nor the seriousness of the accident

provided the defendant with implicit notice that a more serious

charge would be forthcoming.   Accordingly, the motion judge

properly allowed in part the motion to dismiss.   The order dated

October 31, 2016, is affirmed.

                                    So ordered.
