Commonwealth v. Richanette M. Cotto.

• Court: Massachusetts Appeals Court
• Decided: January 7, 2025
• Docket: 23-P-0568
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-568

COMMONWEALTH

vs.

RICHANETTE M. COTTO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a District Court jury trial, the defendant appeals

from her conviction of negligent vehicular homicide, G. L.

c. 90, § 24G (b), arguing that the judge erred in denying her

motion at the close of the Commonwealth's case, and renewed

motion at the close of all the evidence, for a required finding

of not guilty. We affirm.

Discussion. As explained in Commonwealth v. Rivera, 460

Mass. 139, 141 (2011),

"In reviewing the denial of a required finding of not guilty, we review the evidence introduced up to the time the Commonwealth rested its case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt." Then, "[w]e consider the evidence at the close of all the

evidence to determine whether the Commonwealth's position as to

proof had deteriorated since it had closed its case."

Commonwealth v. Basch, 386 Mass. 620, 622 n.2 (1982).

To convict the defendant of vehicular homicide, the

Commonwealth was required to prove beyond a reasonable doubt

that the defendant (1) operated "a motor vehicle, (2) upon a

public way, (3) recklessly or negligently so as to endanger

human life or safety, (4) thereby causing the death of a person"

(citation omitted). Commonwealth v. Angelo Todesca Corp., 446

Mass. 128, 137 (2006). See G. L. c. 90, § 24G (b). On appeal,

the defendant contests only the third element, arguing that the

Commonwealth failed to introduce sufficient evidence to prove

her negligence.

"A finding of ordinary negligence suffices to establish a

violation of § 24G." Commonwealth v. Berggren, 398 Mass. 338,

340 (1986). "Negligence . . . in its ordinary sense, is the

failure of a responsible person, either by omission or by

action, to exercise that degree of care, vigilance and

forethought which . . . the person of ordinary caution and

prudence ought to exercise under the particular circumstances"

(citation omitted). Angelo Todesca Corp., 446 Mass. at 137.

"The operator of a motor vehicle has a duty to exercise ordinary

2 care for the safety of others while operating the vehicle." Id.

Contributory negligence of the victim does not excuse the

defendant's conduct regarding vehicular homicide. Berggren, 398

Mass. at 341 n.4.

At trial, the Commonwealth introduced evidence in its case-

in-chief, including a video of the incident (which we have

watched), that permitted the jury to find the following facts.

The defendant was at the right-hand side of a stretch of road on

which cars often traveled two abreast even without lane

markings.1 She had a green light when she turned left. There

were no obstructions that would block her ability to see the

crosswalk, with the exception of the "A-pillar" between her

windshield and door, which could have created a small blind spot

for a "flash in time." She was traveling thirteen to fourteen

miles per hour. She was not speeding or driving in an

aggressive manner. A forensic examination of the defendant's

cellular telephone indicated that she was not using the phone

while operating the vehicle. The victim did not stop before he

entered the crosswalk, he entered it when the pedestrian signal

was red, and he did not look in either direction. He was

walking in the crosswalk for six seconds before the defendant's

1 After the defendant struck the victim with her car, the city of Taunton added lane markings to the road designating two separate lanes, the left of which was a turn lane.

3 vehicle struck him, during which time the defendant would have

seen the victim if she were looking in the same direction as she

was steering her vehicle. After the initial impact with the

victim, the vehicle was braked in such a way that it traveled

another seventy feet before stopping. There were no signs of

heavy braking such as skid marks.

A reasonable jury could have relied on these facts to

conclude that even if the defendant did not act intentionally or

recklessly, the defendant failed to use ordinary care,

tragically causing the death of the victim. See Angelo Todesca

Corp., 446 Mass. at 137. The fact that the defendant was not

speeding or distracted by her phone does not undermine this

conclusion. A jury could conclude that the defendant still

should not have hit the victim or should have stopped more

quickly after she hit the victim. Even "drivers who enjoy a

green traffic light . . . still must yield to pedestrians who

are using a marked crosswalk." Weiss v. Cambridge, 89 Mass.

App. Ct. 797, 800 (2016).

Similarly, the fact that police did not issue the defendant

a citation until after the victim died is immaterial. Although

the officer on the scene himself issued no citation, neither did

he testify that he concluded the defendant was not negligent.

Instead, once the victim died eleven days later, a lieutenant

4 who served as the police department's major accident

reconstructionist was directed to investigate. After

considering numerous variables, the lieutenant concluded that

the defendant should have been able to see the victim before

hitting him and that she should have stopped more quickly. It

was the lieutenant who recommended that the citation issue.

That the police waited until the victim died and the accident

had been thoroughly investigated before seeking to charge the

defendant with negligent vehicular homicide did not require the

jury to conclude that the defendant was not negligent.

Next, the defendant argues that even if the Commonwealth's

evidence was sufficient to prove negligence, the evidence

deteriorated as a result of the defense case. While the

defendant offered alternative explanations for how her vehicle

could have struck the victim without her negligence, such as the

vehicle's A-pillar creating a blind spot, these arguments did

not cause deterioration of the Commonwealth's case because they

did not establish that the Commonwealth's evidence was

"incredible or conclusively incorrect." Kater v. Commonwealth,

421 Mass. 17, 20 (1995), S.C., 432 Mass. 404 (2000). See id.

(contradictory evidence does not cause deterioration of

Commonwealth's evidence). The jury were not obliged to believe

5 the defendant's explanations, and as shown by their verdict,

they did not.

In sum, the evidence was sufficient to convict the

defendant.

Judgment affirmed.

By the Court (Henry, Sacks & Singh, JJ.2),

Clerk

Entered: January 7, 2025.

2 The panelists are listed in order of seniority.