TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

ISSUES PRESENTED ..................................... 1

STATEMENT OF THE CASE ................................ 1

STATEMENT OF FACTS ................................... 4

1. THE COMMONWEALTH'S CASE ...................... 4

11. THE DEFENDANT'S CASE ......................... 9

111. THE COMMONWEALTH'S REBUTTAL . . . . . . . . . . . . . . . . . 10

IV. THE PROSECUTOR'S CLOSING ARGUMENT . . . . . . . . . . . 11
V. THE POST-COWICTION PROCEEDINGS . . . . . . . . . . . . . 14
ARGUMENT ............................................ 16

I. THE DEFENDANT IS NOT ENTITLED TO

DISMISSAL OF THE VEHICULAR HOMICIDE
COMPLAINT ON DOUBLE JEOPARDY GROUNDS
BECAUSE THE EVIDENCE AT TRIAL IN THE
LIGHT MOST FAVORABLE TO THE
COMMONWEALTH SUFFICED TO PROVE THAT HE
NEGLTGENTLY OPERATED A MOTOR VEHICLE
AND THEREBY CAUSED THE VICTIM'S DEATH. . . 16
A. The Commonwealth's Evidence Was
Sufficient To Prove That The
Defendant Was consciously
Operating The Cruiser At The Time
Of The Crash. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1. Evidence of the Operation of

the Cruiser. . . . . . . . . . . . . . . . . . . . . . . 21

2. The Blood & Saliva on the

Airbag ............................ 25

3. The Medical Evidence . . . . . . . . . . . . . . 2 8

 ii

B. Neither The Testimony Of The

Defense Witness . Nor The
Acknowledgements O€ Its OWn
Witnesses Caused The
Commonwealth's Case To
Deteriorate. . . . . . . : . . . . . . . . . . .... 29

11. THE DEFENDANT'S CLAIM OF PROSECUTORIAL

MISCONDUCT IS DEFEATED BY THE TRIAL
JUDGE'S F I N D I N G S THAT THE PROSECUTOR
DID NOT DELIBERATELY MAKE IMPROPER
ARGUMENTS OR AVOID INQUIRIES THAT MIGHT
HAVE REVEALED EXCULPATORY EVIDENCE, AND
SUCH MISCONDUCT WOULD NOT JUSTIFY
DISMISSAL EVEN IF IT HAD OCCURRED. . . . . . . . . . . 32
CONCLUSION .......................................... 31

ADDENDUM ............................................ 38

SUPPLEMENTAL APPENDIX ............................... 41

 iii

TABLE OF AUTHORITIES

Cases

Aucella v. C o m m o n w e a l t h , 406 Mass. 4 1 5

(1990) ..................................... 24, 2.5

Berry v. C o m m o n w e a l t h , 393 Mass. 793

(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
C o m m o n w e a l t h v. A n d e r s o n , 4 1 1 Mass. 2 7 9
(1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Commonwealth v. A r i a s , 2 9 Mass. App.
Ct. 613 (1990), aff‘d, 4 1 0 Mass.
1005 (1991) ................................ 16, 23

C o m m o n w e a l t h v. B e a l , 4 2 9 Mass. 5 3 0
(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
c o m m o n w e a l t h v. Cartwxight, 447 Mass.
1015 ( 2 0 0 6 ) .................................... 30
C o m m o n w e a l t h v. C h o n q a r l i d e s , 6 2 Mass.
App. Ct. 709 (2004), review
d e n i e d , 4 4 3 Mass. 1 1 0 5 (2005) . . . . . . . . . . . . . . . . . . 31

C o m m o n w e a l t h v. C i n e l l i , 389 Mass. 1 9 7
(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 3
Commonwealth v. C r o u s e , 447 Mass. 558
(2006) .............................. ..29
C o m m o n w e a l t h v. D r u m g o l d , 4 2 3 Mass. 2 3 0
(1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

C o m m o n w e a l t h v . F i s h e r , 4 3 3 Mass. 340
(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Commonwealth v. Fitzgerald, 376 Mass.

402 (1978) ................................. 24, 30

C o m m o n w e a l t h v. G r a n d i s o n , 433 Mass.
135 ( 2 0 0 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 2 1 , 2 3 , 2 6
Cornionwealth v. Jackson, 4 3 2 Mass. 8 2
(2000) ......................................... 23

C o m m o n w e a l t h v . James, 4 2 4 Mass. I70

(1997) ..................................... 18, 22
C o m m o n w e a l t h v. Lam Hue To, 3 9 1 Mass.
301 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
 .......

iv

Commonwealth v. Latimore, 378 ass. 671

.................................
(1979) 16, 1 8 , 22
Commonwealth v. Levesque, 4 3 6 Mass. 4 4 3
(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Commonwealth v. Lewin, 405 Mass. 566
(1589) ..................................... 33, 36

Commonwealth v . Lydon, 4 1 3 Mass. 3 0 9

(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~7
Commonwealth v . Manning, 373 Mass. 438
(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Commonwealth v. McInerney, 373 Mass.

1 3 6 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Commonwealth v. Merola, 405 Mass. 529

(1989) ......................................... 17

Commonwealth v. 'Phillips, 413 Mass. 50

(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Commonwealth v. Pike, 430 Mass. 317
(2006) ......................................... 23

Commonwealth v. Rice, 427 Mass. 203

(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Commonwealth v . Sparks, 433 Mass. 654
(200Z) ......................................... 35
Commonwealth v. Sturtivant, 117 Mass.
1 2 2 (1875) ..................................... 26
Commonwealth v. Tucker, 1.89 Mass. 457
(1905) ......................................... 29
Commonwealth v. Urrea, 443 Mass. 530
(2005) ..................................... 23, 31
Commonwealth v. Webster, 5 Cush. 295
(1850) ......................................... 17
Cornonwealth v. Williams, 450 Mass. 8 7 9
(2008) ......................................... ~2
Ellingsgard v. Silver, 352 Mass. 34
(1967) ......................................... 15
Hartfield v. Commonwealth, 443 Mass.
1022 ( 2 0 0 5 ) ........................ 16, 21, 22, 30
Kater v. Commoriwealth, 421 Mass. 17
(1995) ............................... . . . . 20
Koonce v. Commonwealth, 412 Mass. 71
(1992) ................................. passim
Mcovern v. Tinqlof, 344 Mass. 114
(1962) ..................................... . . . . 28
Oregon v , Kennedy, 456 U.S. 667 (1982) . . . . . . . . _ ....
. 35
U n i t e d S t a t e s v . Systems Architects,
Xnc., 7 5 7 F.2d (1st Cir.), C b r t .
d e n i e d , 4 7 4 U . S . 8 4 7 (1985) _ . . . . . . . . . . . . . _ ..
. .17
Statutes

G.L. c . 211, § .................................

3 1, 16
G.L. C. 9 0 , 5 24G(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 , 19

Rules

Mass. R. Crim. P. 25Ib) ( 2 ) . . . . . . . . . . . . . . . . . . .. . . .3 , 33

Mass. R . Prof. Conduct 3 . 8 ( j ) . . . . . . . . . . . . . . . . . . . . . . . 33
 ISSUES.- P.. .R E S E N T S

T. Whether the defendant is entitled to dismissal of

a vehicular homicide complaint on double jeopardy

grounds where the evidence at trial in the light most

favorable to the Commonwealth sufficed to prove that

he negligently operated a motor vehicle and thereby

caused the victim's death.

11. Whether the defendant's claim of prosecutorial

misconduct is defeated by the trial judge's findings

that the prosecutor did not deliberately make improper

arguments or avoid inquiries that might have revealed

exculpatory evidence, and whether such misconduct,

even i f it had occurred, would justify dismissal.

STATEMENT OF THE CASE

This case is before this Court on a report of a

single justice of this Court (Cordy, J.) of a petition

by the defendant, Stuart Merry, for extraordinary

relief pursuant to G.L. c . 211, § 3.
 2

On October 2 2 , 2 0 0 ' 1 , the defendant was charged by

complaint in the Peabody District Court with vehicular

homicide, in violation of G.L. c. 90, § 24G(b)

(C.A. 1).1.2

In the early stages of the case, the District

Attorney for the Eastern District, citing a potential

conflict of interest, transferred the prosecution of

this case to the District Attorney for the Suffolk

District. On December 10, 2 0 0 7 , a Suffolk County

Assistant District Attorney appeared as a special

prosecutor for the Commonwealth (C.A. 5 ) . That same

day, the Commonwealth filed a motion to amend the

complaint to charge vehicular homicide by negligent

.-

"C.A.'I herein refers to the Commonwealth's

supplemental appendix, below at 41. " D . Br . I' refers to
the defendant's brief, D.Add." refers to his addendum,
and llR.A.lv refers to his record appendix.
"Tr. [voL]: I ' refers to the trial transcript, and
"T.Exh." refers to the trial exhibits. The side bar
discussions at trial, which were transcribed
separately, are cited herein as they appear in the
defendant's addendum and record appendix. "SJ Tr."
refers to the transcript of the hearing before the
single justice Gf this Court on July 15, 2008, which
the defendant has moved to make part of the record.
2
The defendant was also charged with unlicensed
operation of a motor vehicle, but that charge was
ultimately dismissed (C.A. 1, 3). The complaint a l s o
Listed two civil traffic violations, for which the
defendant was found responsible, but those violations
were simply filed with the defendantls consent and are
not at issue on this appeal (C.A. 1, 3-41.
 3

operation rather than reckless operation ( C . A . 5, 11-

12), which was allowed (C.A. 5).

From March 17 to 20, 2008, the defendant was

tried by a jury in Peabody District Court before the

Honorable Robert A. Brennan ( C . A . 8-9). At the close

of the Commonwealth's case-in-chief and again at the

close of all the evidence, the defendant moved €or a

required finding of not guilty, which was denied on

both occasions (C.A. 8 ; D.Add. 3-26). After the

summations, the defendant moved for a mistrial based

on the prosecutor's argument, which was also denied

( R . A . 1114-15). On March 20, the jury convicted the

defendant of vehicular homicide ( C . A . 8-9).

On March 2 7 , 2008, the defendant filed a post-

verdict motion for a required finding of not guilty or

a new trial under Mass. R. Crim. P. 25(b) (2) (C.A. 9).

On April 7, the trial judge conducted a hearing on

this motion (C.A. 9-10). On May 6, the judge granted

the defendant a new trial based on the Commonwealth's

inadvertent failure to disclose an exculpatory opinion

by its crash reconstruction expert (D.Add. 30-35;

R.A. 1163-68; C.A. 10) but again denied the

defendant's motion for a required finding of not

guilty [D.Add. 35-36; R . A . 1168-69; C.A. 10).
 On May 22, 2008, the de€endant filed the instant

petition for extraordinary relief, in which he sought

to have the complaint dismissed on grounds o€ double

jeopardy and prosecutorial misconduct (No. SJ-2008-

0223; R.A. 1-1255) . 3 On June 15, 2008, a single

justice of this Court (Cordy, J.) reserved and

reported the petition to the full Court (R.A. 1279).

STATEMENT OF FACTS

I. The Commonwealth's Case

On the morning of January 20, 2007, the

de€endant, a Beverly Police Officer, crashed his

marked police cruiser into a parked car occupied by

Bonnie B u r n s , killing Burns (Tr. 2 : 6 )

By all accounts, the defendant showed no signs of
physical or emotional problems on the morning of the

crash (Tr. 1:183-85, 241-43, 257-58, 267-68). He had

no history of fainting or blacking out (Tr. 1 : 2 7 9 ) .

Shortly before 9:20 a.m., the defendant stopped

at a Seven Eleven store and bought an orange fountain

drink, which he placed in a cup holder i n his cruiser

--
1
Although the defendant never formally moved for
dismissal in the trial court, the parties agree that
remanding the case to the trial. court for this purpose
would be a waste of time and resources, as the trial
judge's rulings on the defendant's Rule 25 motion make
it clear that he would also have denied a motion to
dismiss (see D.Add. 3 5 - 3 6 ; R < A . 1168-69).
(Tr. 1 : 2 7 7 ) . He then left the store’s parking lot and

began driving up a slight hill on Cabot Street

(TL-.1 : 2 7 7 - 2 8 ) . He purportedly does not remember

anything further leading up to the crash (Tr. 1:278).

The posted speed limit on Cabot Street in the

area of the crash is 30 mph (Tr. 2:15). The

Commonwealth‘s crash reconstruction expert, State

Police Sergeant Deborah Ryan, determined that the

defendant’s cruiser was traveling about 52 rnph at the

time of the crash (Tr. 2:35). The power control
module (“PCM”) -- an onboard computer that monitors
the cruiser’s engine (Tr. 2:35-38) -- revealed that

the defendant was essentially “flooring“ the

accelerator for 11.4 seconds before the crash

(Tr. 2 ~ 4 2 ,67) : the accelerator was depressed between

83% and 98% (Tr. 2:42), and the engine throttle was

open 100% (Tr. 2 ~ 4 2 - 4 4 ) . The brake pedal light was on

between 11.4 and 8.0 seconds before the crash, but

there was no evidence of braking during the final

eight seconds (Tr. 2 : 4 7 - 4 9 , 57-58). There was also no

evidence of any mechanical problems with the cruiser

that might have contributed to the crash (Tr. 2 : 2 G - 2 7 ,

61). In Sergeant Ryan’s opinion, the cruiser had

failed to negotiate a right curve on Cabot Street: and

traveled straight into the victim’s car (Tr. 2:69-70).

 Heather Swan, a resident of the neighborhood, saw
the defendant's cruiser traveling fast up Uabot Street

in the right lane ( T r . 1:59). The cruiser then "made

a quick turn to the left,''as if the driver was trying

to avoid something, and crashed into the victim's car

(Tr. 1:59-61). Another eyewitness, Amy Munoz, also

saw the cruiser "turn very quickly" just before it hit

the victim's car ( T r . 1:87-89).

A third eyewitness, Frederick Kelsey, was walking

on Cabot Street with his four-year-old son when he

heard a car accelerating behind him (Tr. 1:111-12).
He turned and s a w the defendant's cruiser accelerating

past him (Tr. L:113). There d i d not appear to be

anyone sitting behind the wheel (Tr. 1:114-15, 132).

According to Kelsey, the cruiser failed to negotiate a

right curve on the road and drove straight into the

victim's c a r ( T r . 1:135-16, 127).

MunOZ and Kelsey approached the cruiser after the

crash and found the defendant slumped over with his

legs still under steering wheel but his torso lying

across the passenger's seat (Tr. 1:93, 152). He was

unconscious and moaning, and his breathing was labored

(Tr. 1:94, 123-24, 152).

Beverly P o l i c e Officer David Faustino arrived at

t h e scene moments later ( T r . 1:165-68). He found the

defendant lying across the front passenger seat o f the

cruiser (Tr. 1:169). He said, "Stu, are you okay?",

but the defendant did not answer (Tr. 1:170). The

defendant was having trouble breathing, had a bloody

nose, and had blood and saliva corning out of his mouth

(Tr. 1:170-71, 179). His eyes were open, but he

appeared to be "staring right through" Officer

Faustino without recognizing him (Tr. 1:170-71). As

time passed, the defendant's breathing worsened and he

began to turn blue (Tr. 1:174-75).

Several other officers arrived soon thereafter

(Tr. 1:187, 203-04, 223) I In addition to making many

of the same observations as Officer Faustino, Officer

Stephen Collins noticed that the defendant had cuts on

his face and a swollen eye (Tr. 1:192). Sergeant

Joseph Shairs noticed that the defendant was "rolling

around a bit, trying to reposition himself"

(Tr. 1:208), but he did not notice any blood or saliva

coming from the defendant's mouth (Tr. 1:214).

Several officers tried to speak to the defendant, but

he did not seem to understand (Tr. 1:216-17, 233).

While the defendant was still lying on the

passenger's seat, Officer Michael, Cassola entered the

passenger side of the cruiser and placed an oxygen

mask on the defendant's face (Tr. 1 : 2 2 7 - 2 8 ) . The

 8

blowing oxygen seemed to irritate the defendant, who

began to move arouiid and try to push the mask away

(Tr. 1:228, 229, 230). Officer Cassola had to keep

“chasing him around with the oxygen because he kept

moving and pushing my hands” (Tr,1 : 2 3 0 ) . During this

struggle, the defendant’s “body was . . . still over the

passenger’s seat” (Tr. 1:230). when the mask was

finally secured, the defendant was in a “half-seated

upright position leaned over” (Tr. 1:230).4 With the

oxygen mask on, the defendant soon regained his normal

color (Tr. 1:210).

Medical personnel soon arrived, placed the

defendant on a backboard, and removed him from the

cruiser via the driver’s door (Tr. 1:195, 230-31).

The defendant was then transported by ambulance to a

hospital (Tr. 1:196)

The defendant‘s medical records reveal that he

suffered a concussion in the crash (T.Exh. 21;

R.A. 1215, 1217, 1219). A CT scan of the defendant’s

head conducted shortly after the crash revealed no

abnormalities (R.A. 1245). Sergeant Ryan examined the

defendant’s medical records pursuant to her investiga-

-
Sergeant Shairs’s recollection was that he and
Officer Cassola lifted the de€endant to a sitting
position in the driver’s seat prior to putting t h e
oxygen mask on his face (Tr. 1:209).
tion and found nothing in them that would explain the

crash ( T r . 2:60, 90).

Photographs in evidence showed red spots on the

driver's airbag of the defendant's cruiser (T.Exh. 2 )

and damage to the cruiser's front windshield

(T.Exh. 5). A State Police report in evidence

(T.Exh. 24) revealed that the airbag had tested

positive for human blood and saliva.

II. T h e Defendant's Case

The defendant's crash reconstruction expert,

Gerard Murphy, opined based on the force o f the crash

and the position in which the defendant had fallen in

the cruiser that the defendant was not sitting up at

the time of the crash (Tr. 2:122). On cross-

examination, however, he acknowledged that it was

possible that the defendant had simply f a l l e n over

after the crash (Tr. 2 : 1 3 5 ) .
Dr. James R. Lehrich, a neurologist, opined that
the only plausible explanation for the circumstances
of the crash - - particularly the total depression of
the accelerator, the defendant's failure .to take

evasive action, and Kelsey's observation of no one

behind the wheel was that the defendant had

suffered a "tonic seizure," causing his body to go

rigid while he lost consciousness (Tr. 2 : 1 5 0 - 5 3 ) .

 10

This "tonic phase" of the seizure would be followed by

a "clonic phase," during which the victim would

collapse and possibly thrash his arms and legs

( T r . 2:153). Finally, the patient would enter the

"postictal" phase, during which he would appear

sleepy, confused, and possibly combative (Tr. 2:153- ,

54). Other symptoms of a seizure may include blueness

and drooling ( T r . 2:154).

On cross-examination, Dr. Lehrich acknowledged

that the defendant's post-crash CT scan was normal

(Tr. 2:161), but he claimed that this result did not

rule out a seizure (Tr. 2 : 1 6 9 - 7 0 ) . He also

acknowledged that the defendant had no history or

family history of seizures (Tr. 2:170), that he could

not explain why the defendant had had a seizure

(Tr. 2 : 1 7 0 ) , and that most of the defendant's post-

crash symptoms could have been caused by his

concussion a6 well (Tr. 2:176-77).

IIX. The Commonwealth's Rebuttal

In rebuttal, the Commonwealth called Dr. Daniel

~och, a neurologist. Dr. Hoch had examined the

defendant I s medical records and found nothing that was

unique to a seizure (Tr. 3:30-31). He acknowledged,

however, that in about 30-50% of cases, no medical

reason for a seizure can be found (Tr. 3 : 2 7 ) . On
cross-examination, he further acknowledged that he

could not rule out the possibility of a seizure

(Tr. 3:64), that the seizure theory was "a viable

medical theory" (Tr. 3:64), and that a person

suffering a seizure might depress a car's accelerator

for as long as twenty seconds during the tonic phase

of the seizure (Tr. 3:70).

IV. The Prosecutor's Closing Argument

During his closing argument, the prosecutor cited

three pieces of evidence that, considered together,

indicated that the defendant was not having a seizure

at the time of the crash (Tr. 3:107-12). The first of

these was the "spidered" windshield of the defendant's

cruiser, as depicted in the photograph in evidence

(T.Exh. 5 ) and described in the defendant's medical

records (T.Exh 21; R.A. 1216, 1220) (Tr. 3:107-08).
The prosecutor argued that this damage had been caused
by the defendant's head hitting the windshield
(Tr. 3:108). He acknowledged, however, that the

evidence was "not conclusive," as the damage "could

have been [caused by1 anything" (Tr. 3:108).

Second, the prosecutor pointed out the blood

spots on the driver's airbag (Tr. 3:108-11, citing

 ‘I. 2

T.Exhs. 2 & 24). Citing medical evidence that the

defendant had suffered cuts to his face and a “raccoon

eye“ (T.Exh. 21; R . A . 1 2 1 6 ; Tr. 1:192), the prosecutor

argued that the defendant had left these spots when

his face struck the airbag during the crash

(Tr. 3:109, 100-11). Again, however, he acknowledged

that this evidence was not conclusive, as “ b l o o d could

have gone all over the place” (Tr. 3:lll).

The third piece of evidence was the saliva found

on t h e airbag (Tr. 3:lll). The prosecutor argued:

Saliva comes from one place, your mouth.

The only way that saliva got on the airbag
is if Stuart Merry, h i s face, hit that
airbag at the time of the crash.

(Tr. 3:111). The prosecutor acknowledged that the

defendant had been seen drooling after the crash, but

he argued that the oxygen mask would have prevented

saliva from getting on the airbag when the defendant

was raised to a sitting position and ultimately

removed €rom the cruiser (Tr. 3:111-12).

Later in his argument, the prosecutor argued that

Kelsey’s testimony that he had seen no one behind the

- .~

5 The trial judge initially sustained a defense

objection to this argument on the grounds t h a t there
was no evidence that the spots were the defendant‘s
blood (Tr. 3:109; R.A. 1110). upon reviewing the
State Police report (T.Exh. 2 4 1 , however, the judge
reversed his ruling (Tr. 3:110; R.A. 1110).
 -1. 3

wheel of the cruiser as it passed him (Tr. 1:114-15),

if accurate, actually bolstered the Commonwealth's

theory of the case:

The second possible conclusion is that

[Kelseyl I s right: when the car went whizzing
past him at 50 miles an hour, Stuart Merry
was not sitting up. But remember, that car
goes another 20 or 30 feet, and because of
the physical evidence that you have to
review, we know Stuart Merry sat up after
that point. And, members of the jury, a
person having a seizure does not sit up.

(Tr. 3:114-15).
The defendant objected to prosecutor's arguments

about the windshield and the blood on the airbag on

the grounds that the prosecutor had never asked any

witness about this evidence (R.A. 1109).& The judge

overruled this objection on the grounds that the

prosecutor's arguments were nonetheless supported by

reasonable inferences from exhibits that the defendant

knew to be in evidence (R.A. 1110).

The defendant argued in support of his subsequent

motion for a mistrial that the prosecutor's arguments

based on the damage to the windshield and the blood

and saliva on the airbag amounted to l1testimony"

(D.Add. 27-28; R.A. 1114-15). The judge denied the

- -
h
Contrary to his assertions (D.Br. 2-3, 16), the
defendant never objected to the prosecutor's argument
that "a person having a seizure does not sit up"
(Tr. 3:125).
 14

motion on the grounds that he had instructed the jury

that arguments are not evidence, and that the jury

would have realized in any event that the prosecutor

was arguing, not testifying (D.Add. 2 8 ; R.A. 1115).

V. The Post-Conviction Proceedings

In response to the defendant's Rule 25 motion,

the Commonwealth investigated the pretrial conversa-

tions between Sergeant Ryan and the prosecutors (see

R.A. 392-94). This investigation revealed that

Sergeant Ryan had told the original Essex County

prosecutor that she believed that the damage to the

cruiser's windshield had not been caused by the

defendant's head striking it ( R . A . 994). This

information was not relayed to the Suffolk County

prosecutor when the case was transferred ( K . A . 9 9 4 ) .

The investigation further revealed that the

Suffolk County prosecutor had only one substantive

pretrial conversation with Sergeant Ryan, which

cent-ered on the PCM evidence (K.A. 993). Near the mid

o f this conversation, the prosecutor mentioned that he

believed that the damage to the windshield and the

blood on the airbag were the best evidence that the

defendant had not had a seizure (R.A. 993). Sergeant

Ryan responded, "I think the blood is your better

 15

argument“ ( R . A . 993). They did not discuss the matter

further (R.A. 993).

The trial judge ruled that the jury’s ignorance

of the fact that Sergeant Ryan would have contradicted

the trial prosecutor’s argument about the cause of the

damage to the windshield cast doubt on the fairness of

the verdict, and thus warranted a new trial

(D.Add. 30-35; R.A. 1163-68). Nevertheless, he found

that this was “not a case where the omission of this

information by the prosecutors was knowing or

intentional” (D.Add. 31; R.A. 1164), or where the

prosecutor had intentionally avoided eliciting

evidence that might be unfavorable to his case

(R.A. 1145-46). He further stated that he appreciated

the difficulties created by the conflict of interest,

which prevented the trial prosecutor from discussing

the case with his predecessor (D.Add. 3 2 - 3 3 ; R.A.

1165-66), that the trial prosecutor’s closing

arguments about the windshield and the airbag were

‘‘fairand reasonable“ in light of what was known about

the evidence at: the time (D.Add. 35; R . A . 1168). arid

that, “based on [his] observations of everybody in

this case, [the trial] was conducted in an above-board

.. . manner that was professional on both sides“

(R.A. 1209).
 16

ARGUMENT

I. THE DEFENDANT IS NOT ENTITLED TO DISMISSAL OF THE

VEHICULAR HOMICIDE COMPLAINT ON DOUBLE JEOPARDY
GROUNDS BECAUSE THE EVIDENCE AT TRIAL IN THE
LIGHT MOST FAVORABLE TO THE COMMONWEALTH SUFFICED
TO PROVE THAT HE NEGLIGENTLY OPERATED A MOTOR
VEHICLE AND THEREBY CAUSED THE VICTIMIS DEATH.

There is no merit to t h e defendant's claim that

he is entitled to dismissal of the complaint on double

jeopardy grounds because the evidence at his first

trial. was insufficient to prove his guilt beyond a

reasonable doubt (D.Br. 22-44).7 A court assessing the

sufficiency of the evidence in a criminal trial must

review the evidence in the light most favorable to the

commonwealth, with all reasonable inferences resolved

in the Commonwealth's favor. Commonwealth v.

Grandison, 433 Mass. 135, 140 ( 2 0 0 1 ) ; Cornonwealth v.

Latimore, 3 7 8 Mass. 671, 677 (1979). The j u r y is free

to d r a w any inferences from the evidence that are

reasonable and possible; the inferences need not be

necessary or inescapable. Grandison, 433 Mass. at

141; Commonwealth v. Arias, 29 Mass. ~ p p .Ct. 613, 618

(1990), aff'd, 410 Mass. 1005 (1991). "To the extent

that conflicting inferences arc possible from the

evidence, it is for- the jury to determine where the

.-
7
The Commonwealth does not dispute that a double
jeopardy claim is an appropriate matter for resolution
pursuant to G.L. c. 211, § 3 . See Hartfield v.
Commonwealth, 443 Mass. 1022, 1022 n.l (2005).
I
17

truth lies." Koonce v. Commonwealth, 412 Mass. 71, 75

(1992) (internal quotation marks omitted) ; accord

Commonwealth v. Fisher, 433 Mass. 340, 343 (2001).

"'The relevant question is whether the evidence would

permit a j u r y to find guilt, not whether the evidence

requires such a finding.'" Fisher, 433 Mass. at 342-

43 (quoting Commonwealth v. L y d o n , 413 Mass. 309, 312

(1992)). The Commonwealth "'need not exclude every

reasonable hypothesis of innocence, provided the

record as a whole supports a conclusion of guilt
beyond a reasonable doubt. ' '! Commonwealth v . Merola,

405 Mass. 5 2 9 , 533 (1989) (quoting U n i t e d States v.

Systems Architects, Xnc., 757 F.2d 373, 377 (1st

Cir.) , cert. d e n i e d , 4 7 4 U.S. 847 (1985)) .

The defendant's reliance on the definition o f

proof beyond reasonable doubt from Commonwealth v.

Webster, 5 Cush. 295, 319 (1850) (cited at D.Br. 2 4 ,

32), is misplaced, as that definition refers to the

degree o € certainty that the j u r y must reach in order

to convict the defendant. The standard governing

whether the evidence is sufficient to withstand a

motion for a required finding of not guilty is more

lenient. Compare id. ( j u r y may not find defendant

guilty unless evidence at trial "exclude[sl any other

reasonable hypothesis") w i t h Merola, 405 Mass. at 533
 18

(case may be submitted to jury even if the evidence

does “not exclude every reasonable hypothesis of

innocence”). The reason for this distinction is that

the jury is the arbiter of credibility, and thus may

find evidence that seems plausible on the record to be

incredible based on factors unavailable to’ an

appellate court, such as a witness‘s demeanor. Under

the proper standard, the evidence at the defendant’s

first trial amply sufficed to support: his conviction

for vehicular homicide.

Despite giving lip service to the Latimore

standard (D.Br. 22-23), the defendant effectively asks

this Court to serve as a second jury, considering the

weight and credibility of the evidence rather than its

sufficiency in the light most favorable to the

commonwealth. CI. Commonwealth v. James, 424 Mass.

770, 7 8 4 - 8 5 (1997) (as reliability and credibility are

matters for the jury to resolve, even equivocal or

contradictory evidence must be viewed in the light

most favorable to the commonwealth). As shown bel.ow,

none of the defendant‘s assertions establish that the

evidence in the light most favorable to the Common-

wealth was insufficient to prove his guilt.

 19

A. The Commonwealth's Evidence Was Sufficient

TO prove That T h e Defendant Was Consciously
Operating The Cruiser A t T h e Time Of T h e
Crash.

The four elements of vehicular homicide are:

(1) operation of a motor vehicle; (2) upon a public

way; ( 3 ) negligently so as to endanger human life; and

(4) thereby causing the death of a person. G.L.

c. 90, 5 24G(b). Here, only two of these elements

were contested at trial: operation and negligence.a

The evidence at trial sufficed to prove both of these

'elements beyond a reasonable doubt.

The Commonwealth agrees that the defendant could

not have negligently operated his cruiser unless he

intentionally set in motion the forces that caused the

crash -- i.e., unless he was not having a debilitating

seizure at the time ( s e e D.Br, 29-32).' Nonetheless,

the evidence at trial sufficed to prove beyond a

reasonable doubt that the defendant was fully

8
The parties stipulated at trial that Cabot Street
is a public way, and that the crash caused the
victim's death ( T r . 2 : 6 - 7 ; D.Br. 3 0 ) .
9
The defendant could not be guilty under the
alternative theory that he negliyently chose to drive
despite being at risk for seizures, see Ellingsqard v.
Silver, 352 Mass. 34, 3 8 - 3 9 ( 1 9 6 ' 7 ) , as he had no
history of seizures or knowledge of any medical
condition that might cause a seizure.
conscious in the moments Leading up to the crash.

This evidence included: (1) that the defendant was

pressing the accelerator for 11.4 seconds prior to the

crash (Tr. 2 : 4 2 - 4 4 ) ; (2) that he was also pressing the

brake pedal for the first 3.4 of these seconds

(Tr. 2:47-48); (3) that two eyewitnesses saw the

cruiser turn to the left just before the crash

(Tr. l:S9, 60-61, 87-89); (4) that there was blood and
saliva on the driver's airbag of the cruiser
(T.Exh. 24); and (5) that the defendant's medical

records contain no evidence of a seizure or any other

medical explanation for the crash (Tr. 2:60, 90) .lo

Considered as a whole in the light most favorable to

the Commonwealth, this evidence sufficed to prove

beyond a reasonable doubt that the defendant was

consciously but negligently operating his cruiser at

the time of the c r a s h .

la Technically, this Court may a l s o consider the

damage to the cruiser's windshield (see T.Exh. 5 1 , as
a court addressing the 'sufficiency of the evidence
must consider all of the evidence admitted at trial,
n o t just the evidence that was properly admitted. See
Kater v. Commonwealth, 421 Mass. 17, 18 (1995). The
Commonwealth does not press this point, however, as
the damage to the windshield is neither crucial to the
sufficiency of the evidence at the first trial nor
likely to be relied on at the second trial..
 21

1. Evidence of the Operation of the

Cruiser.

One compelling item of evidence that the

defendant was consciously operating his cruiser at the

time of the crash was the PCM evidence, which showed

that both the brake pedal and the accelerator of the

cruiser were activated in the seconds before the crash

(Tr. 2:42). Based on their common experience, the

jurors could draw an eminently reasonable inference

from this evidence that the defendant was consciously

pressing these pedals with his feet. See Grandison,

433 Mass. at 141; A r i a s , 29 Mass. App. Ct. at 618.

Although the jurors were also presented with an

alternative inference -- that the defendant might have

pressed the pedals involuntarily during the rigid

”tonic phase” of a seizure (see Tr. 2 : 1 4 6 , 151-53) --

they were not required to accept that inference,

especially where it was undermined by other evidence

(see S § 2 - 3 , infra). Hartfield v. Commonwealth, 443

Mass. 1 0 2 2 , 1022-23 (2005); Kooncc, 4 1 2 Mass. at 75.

Thus, the PCM evidence alone was st-rong evidence of

the defendant’s guilt.

The defendant tries to attack the weight of the

PCM evidence by arguing that “it. defies logic” to

suggest that he was conscious but inattentive for the

entire 11.4 seconds that the accelerator was “floored”

 22

(D.Br. 3 4 ) . " This attack, however, is both irrelevant

to the sufficiency of the evidence, see J a m e s , 424

Mass. at 784-85; Latimore, 378 Mass. at 677, and

unfounded. In making it, the defendant ignores two
crucial facts: (1) that he was also pressing the brake

pedal during the first 3.4 seconds (Tr. 2:48-49); and

(2) that additional time passed before he reached an

unreasonable speed and crossed the center line.12

Hence, only a few seconds of inattentiveness were

needed to cause the crash.

Furthes evidence that the defendant was con-

sciously operating his cruiser was the eyewitness

testimony o f Heather Swan and Amy Munoz, both of whom

saw the cruiser make a quick turn to the left

-
11
The defendant a l s o cites in a footnote his former
partner's testimony that he was a slow and careful
driver (D.Br.34 n.13, citing Tr. 2 : 2 7 1 - 7 2 1 , but the
jury did not have to believe that testimony, see
H a r t f i e l d . 443 Mass. at 1 0 2 2 , and c o u l d not properly
have considered it as evidence of the defendant's
driving habits in any event, see Commonwealth v.
W i l l i a m s , 450 Mass. 879, 8 8 6 ( Z O O S ) .

12
A diagram in evidence showed that the cruiser,
even if it traveled in a straight line, would not have
crossed the center line until shortly before the crash
(T,Exh.2 8 ) , and Swan testi€ied that the cruiser
remained in the right lane until immediately before
the crash (Tr. 1:59). Swan and Munoz also testified
that the cruiser was not obviously speeding or
traveling remarkably faster than ordinary traffic on
the street when they first noticed it ( T r . 1:59, 8 6 ) .

.. . .... .... -_
.
 23

immediately before the crash (Tr. 1:59-61, 87-89).

The jury could reasonably infer from t h i s evidence

that the defendant had consciously turned the steering

wheel of the cruiser. Grandison, 433 Mass. at 141;

Arias, 2 9 Mass. App. Ct. at 618.

Again, the defendant resorts to attacking the

weight of this direct evidence, arguing that it was

contradicted by the testimony of Frederick Kelsey

(Tr. 1:115-16) and the findings of Sergeant Ryan

(Tr. 2 : 5 2 - 5 3 , 57, 80, 88) (D.Br. 3 7 - 3 8 ) . Contradic-

tion alone, however, does not affect sufficiency.

Commonwealth v. Pike, 430 Mass. 3 1 7 , 323-34 (2006);

James, 424 Mass. at 784-85. This is true even where

eyewitness testimony is contradicted by scientific

testimony. See Commonwealth v . Urrea, 4 4 3 Mass. 530,

546-47 (2005) (prosecutor properly asked jury to

rTdisregardthe expert testimony [that t h e defendant

was debilitated by alcohol1 and instead rely on

eyewitness observations of the defendant's words and

acts to determine his ability to perceive and make

judgments at the time o f the murder"); Commonwealth v .

Jackson, 432 Mass. 82, 88 (2000) (jury was not

required to accept expert testimony that defendant

Lacked mental capacity to form intent to kill).

Therefore, the jury could properly consider the

 24

eyewitness testimony that the cruiser had turned

despite the evidence to t.he contrary.

Furthermore, Sergeant Ryan's testimony that a

"very sharp" turn would have caused marks on the road

(Tr. 2 : 5 3 , 6 8 ) , even if credited, did not render the
testimony of Swan and Munoz "impossible" or "contrary

to the laws of physics" (D.Br. 3 8 ) . Sergeant Ryan

also opined that a car traveling at around 50 mph

might not leave tire marks on the road if it was "just

taking a normal turn (Tr. 2:52-53). In light of this

opinion, the jury reasonably could have concluded that

the eyewitnesses were correct that the cruiser had

turned but mistaken in their impressions of how

sharply it had turned. See Koonce, 412 Mass. at 75

(jury is free to "'accept or reject, in whole or in

part, the testimony presented to them"') (quoting Com-

monwealth v. Fitzqerald, 376 Mass. 4 0 2 , 411 (1978)).

For this reason too, the jury d i d not have to conclude

that the turn was physically impossible.

The extensive evidence of how the cruiser was

operating distinguishes this case from Aucella v.

Commonwealth, 406 Mass. 415, 418 (1990), on which the

defendant relies (D.Br. 31). There, the defendant's

car struck two pedestrians who were trying to cross a

dark highway at night, killing one of them. Id. at

 25

417. No one saw the car prior to the impact, and

there was no evidence of the car's speed OF

trajectory. Id. at 419-20. Thus, the evidence was

insufficient to prove that the car was being operated

negligently. Id. Here, in contrast, there was

evidence that the crash occurred in broad daylight

(Tr. 1 : 2 7 7 ) , that the defendant was flooring the

accelerator and traveling well above the speed limit

(Tr. 2 : 3 5 , 42-44), and that he crossed the yellow

center line of the street before the crash (Tr. 1:59-

61, 8 7 - 9 9 , 115-16, 2 : 2 7 - 8 0 ) . Thus, this case bears no

resemblance to Aucella.

2. T h e Blood & S a l i v a on the A i r b a g

Further evidence that the defendant was not

having a seizure at the time of the crash was the

blood and saliva on the driver's airbag ( s e e T.Exhn. 2

& 24). As the trial judge properly ruled (R.A. 1110,

1146-47) , this evidence, combined with evidence of

cuts on the defendant's face (Tr. 1:192; T.Exh. 21),

supported a reasonable inference that the fluids came

from the defendant's face hitting the airbag at the

time of the crash, which would suggest that he was

sitting upright at that time. Although this inference

was not inescapable, the jury could nonetheless draw

it and consider it as part of the Commonwealth's

proof. Grandison, 433 Mass. at 141; Kootice, 412 ass.
at 7 5 .

The derendant's argument that the Commonwealth

made a "judicial admission" before the single justice

that the jury needed an expert to interpret the blood

and saliva evidence (D.Br. 27) Is fallacious. When

asked why the trial prosecutor had not asked any of

the experts who appeared at trial about this evidence,

the appellate prosecutor noted that none of these

experts were qualified to analyze blood splatter

evidence (SJ Tr. 23-24). This response indicated only

that the experts were unqualified to provide any

insights beyond what a lay person could infer from the

blood and saliva, n o t that a Lay person would be

unqualified to draw any inferences from the blood and

saliva whatsoever. Compare Commonwealth v. S t u r t i v a n t ,

1 1 7 Mass. 122, 136 (1875) ( " I t would also seem to be

within the range of common knowledge to observe and

understand those appearances, in marks or stains

caused by blood or o t h e r fluids, which indicate the

direction from which they came, if impelled by

force"), w i t h Commonwealth v. Rice, 427 Mass. 203, 206

(l99E) (expert was called to adduce from blood

splatter evidence the number and velocity of the fatal

blows and the instrument that had inflicted them).

 (2004) (grand jurors did not need expert to know that

€ires tend to spread and become more dangerous if left

unattended). Thus, the Commonwealth did not concede

that the blood and saliva evidence was invalid.

Once again, the defendant resorts to attacking

the weight of the evidence, arguing that there were

"many opportunities for the blood and saliva to have
I
been deposited on the airbag after the crash"

(D.Br. 26 (emphasis i n original); accord D.Br. 36-37).

The evidence in the light most favorable to the

Commonwealth, however, was that the defendant was not

noticeably drooling or bleeding from his mouth after

the crash (Tr. 1:214), and that his fellow officers

were able to get an oxygen mask over his mouth before
he was raised to a sitting position or carried past
the airbag by the medical personnel (Tr. 1:230).
Based on this evidence, there was little chance that
the blood and especially the saliva were deposited on
the airbag after the crash. Although there was

undeniably evidence to the contrary too (Tr. 1:170-71,

1 7 9 , 2091, the jury was free to credit the former aver

the latter.
 3. T h e Medical E v i d e n c e

The commonwealth also presented the defendant ' s

medical records (T.Exh. 21), which contained no signs

that the defendant had suffered a seizure o x any other

debilitating medical event (Tr. 2:60, 90, 3:30-31).

Contrast Mcovern v . T i n g l o f , 344 Mass. 114, 116 (1962)

(cited at D.Br. 31) (undisputed medical records

established that: driver had suffered debilitating and

ultimately fatal heart attack). Sergeant Ryan

testified that she had examined these records and

found nothing i n them that would explain the crash

(Tr. 2 : 6 0 , 90). Similarly, Dr. Hoch examined the

records and found no symptoms that were unique to a

seizure ( T r . 3:30-31). I 3 Thus, these records too

supported a reasonable inference that the defendant

did not suffer a seizure. Although this inference was

not inescapable, as there was a l s o evidence that a

significarit percentage of seizures do not leave
medical evidence (Tr. 3:27, 63-66), the defendant is

mistaken in arguing that this qualifying evidence

"negates any significance that the Commonwealth may

~.
li
Indeed, even the defendant ' s expert, Dr . Lehrich,
acknowledged that the defendant's post-crash CT scan
was normal (Tr. 2 : 1 6 1 ) , that there was no medical
explanation for the alleged seizure (Tr. 2:170), and
that most of the defendant's post-crash symptoms could
have been caused by the concussion he had incurred in
the crash (Tr. 2:176-77).
place on the [medical records] I' (D.Br. 42-43).
Evidence does not have to be dispositive in order for

the jury to consider it, along with other evidence, in

assessing the defendant's guilt. Commonwealth v.

Crouse, 447 Mass. 5 5 8 , 568-69 (2006) (citing Common-

w e a l t h v . Tucker, 189 Mass. 457, 4 6 7 ( 1 9 0 5 ) ) .

Finally, there is no merit to the defendant's

accusation that the Commonwealth used the medical

records to shift the burden of proof (D.Br. 4 3 ) . The

Commonwealth never suggested at trial that additional

tests might have revealed medical evidence of a

seizure, let alone that the defendant was responsible

foi- ensuring that such tests were conducted. Nor does

the Commonwealth make any such argument now. Thus,

the defendant's accusation is baseless.

B. Neither The Testimony Of The Defense Witness

Nor The Acknowledgements Of Its Own
Witnesses Caused The Commonwealth's Case To
Deteriorate.

The defendant is also incorrect in arguing that

the Commonwealth's evidence "deteriorated" during its

rebuttal case, especially when Dr. Hoch acknowledged

that the seizure defense was "a viable medical theory"

(D.Br. 14-15, quoting Tr. 3 : 6 8 ) . Evidence sufficient

to prove a defendant's guilt does not "deteriorate" as

a matter of law where it is merely impeached or

 30

contradicted later at trial; deterioration occurs only

where evidence is revealed to he "incredible or
conclusively incorrect.'' Commonwealth v . Cartwright,

447 Mass. 1015, 1016-17 (2006). Here, neither the

defense nor Dr. Hoch provided conclusive evidence that

the defendant had suffered a debilitating seizure.

Indeed, there was no medical evidence of a seizure

whatsoever (see 5 A.3, supra). In these circum-

stances, the jury was free to discredit the seizu,re

theory and to convict the defendant based on the

evidence set out above, including his erratic driving

( 5 A.l, supra), and the blood and saliva on the

driver's airbay (§ A.2, s u p r a ) .

The defendant is also mistaken in arguing that

the Commonwealth's case deteriorated because its own

experts could not rule out the possibility that the

defendant had suffered a seizure ( D . B r . 39-41). This

argument disregards the fundamental principle that the

jury is free to "'accept or reject, in whole or in

part, the testimony presented to them."' Koonce, 412

Mass. at 75 (quo%ing Fitzgerald, 376 Mass. at 411).

The jury may reject any exculpatory evidence, even if

it i s admitted during the Commonwealth's case, see

H a r t f i e l d , 443 Mass. at 1022-23, or goes unchallenged,

see Commonwealth v. McXnerney, 373 Mass. 136, 143-44

 3 3.

(1977). This principle applies to expert testimony as

well as lay testimony. See U r r e a , 443 Mass. at 5 4 6 -

4 1 ; Jackson, 4 3 2 Mass. at 88. In short, the jurors

did not have to believe any of the evidence that the

defendant had suffered a seizure, including any

inferences to that effect that could be drawn from the

Commonwealth's evidence.

The evidence in this case also defeats the

defendant's reliance on the principle that, if the

evidence "tends equally to sustain either of two

inconsistent propositions, neither of them can be said

to have been established by legitimate proof.'' Berry

v. Commonwealth, 393 Mass. 793, 796 (1985) (cited at

D.Br. 24) (see also D.Br. 39-42). This principle

"pertains only to situations in which any v i e w of the

Commonwealth's evidence, however favorable, still

requires a leap of conjecture with respect to

essential elements of the crime charged in order to
obtain a conviction.I' Commonwealth v . Chongarlides,

62 Mass. npp. Ct. 709, 712 (2004) (emphasis i n

original; internal quotation marks omitted), r e v i e w

denied, 443 Mass. 1 1 0 5 ( 2 0 0 5 ) . Here, the evidence as

a whole in the light most favorable to the

Commonwealth -- especially the evidence that the

cruiser had braked, accelerated, and turned in the

 32

seconds before the crash (see § A.l, supra) --

supported a reasonable inference that the defendant

was consciously operating the cruiser. Therefore, the

jury did n o t have to make a "leap of conjecture" in

order to find the defendant guilty. The mere fact

that other inferences could be drawn from the evidence

does not affect the sufficiency analysis. See Koonce

412 Mass. at 7 5 (where evidence supports conflicting

inferences, "it is for the jury to determine where the

truth lies")
For all of these reasons, the evidence at trial

sufficed to support the defendant's conviction.

Therefore, the defendant is not entitled to dismissal

of the complaint on double jeopardy grounds.

11. THE DEFENDANT'S CLAIM OF PROSECUTORIAL MISCONDUCT

IS DEFEATED BY THE TRIAL JUDGE'S FINDINGS THAT
THE PROSECUTOR DID NOT DELIBERATELY MAKE IMPROPER
ARGUMENTS OR AVOID INQUIRIES THAT MIGHT HAVE
REVEALED EXCULPATORY EVIDENCE. AND SUCH MISCON-
DUCT WOULD NOT JUSTIFY DISMISSAL EVEN IF IT HAD
OCCURRED.

There is absolutely no merit to the defendant's

claim that he is entitled to dismissal based on

prosecutorial misconduct (D.Rr. 44-49). Official

misconduct does not require dismissal. o f a complaint

unless: (1) the misconduct caused "irremediable harm

to the defendant's opportunity to obtain a fair

 33

trial;" or (2) the misconduct is so "egregious,

deliberate, and intentional" that dismissal is
required as a prophylactic measure. Commonwealth v.
Lewin, 405 Mass. 566, 579 (1989). Neither of these

criteria is met here, "Absent egregious misconduct or

at least a serious threat o f prejudice, the remedy of

dismissal infringes too severely on the public

interest in bringing guilty persons to justice."

ComonweaZth v. C i n e l l i , 389 Mass. 197, 210 (1983).

First, there is no basis fox the defendant's

claim that the prosecutor "knew or should have known

that his comments about [the blood and saliva on the

airbagl during h i s closing argument were unsupported

and highly improper" (D.Br. 47). As shown in § I.A.2,

s u p r a , the prosecutor's arguments about the blood and

saliva were solidly supported by the evidence.

Accordingly, the trial judge emphatically re] ected the

defendant's claim to this effect at the Rule 25

hearing, finding that the prosecutor had made "a fair

and reasonable argument, part of which certainly could

have been anticipated" by the defense (D.Add. 3 5 ;

R.A. 1168).

The defendant also accuses the prosecutor of

violating Rule 3.8 ( j) of the Rules of Professional

Conduct, which provides that a prosecutor must not

 34

"intentionally avoid pursuit of evidence because [he]

believes it will damage the prosecution's case or aid

the accused" (D.Br. 46). This accusation' too is

baseless. As the trial judge correctly noted,

Rule 3 . 8 ( " j ) does not require a prosecutor "to send

[defense counsel] a copy of his. closing before he

stands up to make it or [to] necessarily flag it all

the way though his trial as to what he sees [as

important]'I (R.A. 1207). Cf. CommonweaLth v. Beal,
429 Mass. 530, 532 ( 1 9 9 9 ) ("prosecutor has no duty to

investigate every possible source of exculpatory

information on behalf of the defendant"); Commonwealth

v. Anderson, 411 Mass. 279, 284-85 (1991) (Common-

wealth is entitled to put on its strongest case, and

thus need not "risk assisting [the defense] by

[eliciting] unnecessary testimony"). Although the

judge nonetheless ruled that the non-disclosure o f

sergeant Ryan's opinion about. the windshield warranted

a new trial, he explicitly found that this nondis-

closure was unintentional (D.Add. 31, 32; H . A . 1164,

1165). He also did not believe that the prosecutor

had deliberately avoided investigating or eliciting

any exculpatory evidence ( R . A . 1145-46). These

findings by the judge who personally observed the

prosecutor's conduct at trial, and who was privy to

 35

all the information currently before this Court,

defeat the defendant's claim that the prosecutor

engaged in deliberate misconduct. See Commonwealth v +

s p a r k s , 4 3 3 Mass. 654, 661 (2001).

Regardless, not even a deliberate decision by a

prosecutor to forego potentially exculpatory investi-

gation or questioning would rise to the level of

egregiousness that would justify prophylactic

dismissal of a charge. On the contrary, the range of

prosecutorial misconduct that would justify dismissal

is extremely narrow:

The prosecutorial misconduct which if

established warrants a dismissal barring
retrial differs from the general prosecu-
torial ineptitude in disclosing exculpatory
evidence found by the trial judge. To
implicate double jeopardy protections,
prosecutorial misconduct must be of a
specific character: "Only where the govern-
mental conduct in question is intended to
'goad' the defendant into moving for a
mistrial may a defendant raise the bar of
double jeopardy to a second trial . . . . "

Coinmoilwealth v. Lam Hue To, 391 Mass. 301, 311 (1984)

(quoting Oregon v. Kennedy, 4 5 6 U.S. 667, 6 7 6 (1982)).

See a l s o Comorlwealth V. DruRIgold, 423 Mass;. 230, 240-

46 (1996) (deliberate violation by police and prosecu-

tors of judicial order not to interrogate defendant

did not,justify dismissal); Commonwealth v . Phillips,

413 Mass. 50', 59 (1992) (unconstitutional police

 36

policy of randomly stopping suspected gang members did

not justify dismissal); Lewin, 405 Mass. at 587

(perjury by police officers did not justify

dismissal). Contrast Commonwealth v. Manning, 373

Mass. 438, 443 (1977) (cited at D.Br. 4 8 ) (federal

agents' persistent disparagement of defense counsel

during efforts to recruit defendant as informant

amounted to "deliberate and intentional attack by

government agents on the relationship between [the

defendant] and his counsel,'I and thus justified

dismissal). Here, even if this Court were to ignore

the trial judge's unequivocal findings that there was

no deliberate misconduct whatsoever, there is

absolutely no evidence that the prosecutor's intent

was to provoke a mistrial. Therefore, dismissal is

not justified.

Finally, this is not a case in which the

defendant's defense has been irremediably prejudiced

by the alleged misconduct.. On the contrary, the

defendant has been granted a new trial at which he may

introduce the previously undisclosed evidence and

address the points that he previously failed to

anticipate. Although he protests that this remedy is

'I woefully inadequate to address the alleged

misconduct (D.Br. 48-49), he has not explained how the

alleged misconduct will hinder his defense at his

second trial in any way. For this reason too,

dismissal is not justified.

CONCLUSION

For all the foregoing reasons, the Commonwealth

respectfully urges this Honorable Court to deny the

defendant's p e t t t i m for extraordinary relief.

Respectfully submitted,
FOR THE COMMONWEALTH:

JONATHAN BLDDGETT
District Attorney
for the Eastern District

Special A.D.A.
for the Eastern District
B E 0 No. 559194
One Bulfinch Place
Boston, MA 02114
617-619-4070

OCTOBER 2 0 0 8

37