Complaints received and sworn to in the
Lynn Division of the District Court Department on October 30 and November 7,
2017.
The case was tried before Matthew J.
Nestor, J., and a motion to revise and revoke sentence was heard by him.
Joseph P. Dever for the defendant.
Catherine L. Semel, Assistant District
Attorney, for the Commonwealth.
WENDLANDT, J. Enacted in 2018, as part of the comprehensive
Act Relative to Criminal Justice Reform, the primary caretaker statute
(caretaker statute), G. L. c. 279, § 6B, permits a judge to
consider a defendant's status as the primary caretaker of a dependent child
when sentencing. In this case, a
District Court judge found that the defendant, Tara Martin, was the primary
caretaker of her eight year old son, but denied the defendant's motion to
revise and revoke her sentence because he concluded, sua sponte, that the
caretaker statute violated the equal protection clause. On appeal, the defendant contends this was
error, and the Commonwealth agrees.
Because the caretaker statute burdens no fundamental right, applies no
suspect classification, and is rationally related to the Commonwealth's legitimate
interest in the care and protection of children, we agree. Concluding that the defendant's other
challenges lack merit, we remand for reconsideration of the defendant's
motion.
Background. On October 27, 2017, just after 7 P.M., the
victim, Susan Testa, was found lying on the ground next to her vehicle on the
dead-end street just outside her home in a thickly-settled residential
neighborhood. Blood oozed from her head
and hand; there was blood and debris on the ground on the driver's side of Testa's
vehicle, strands of Testa's hair hung from the driver's side mirror, which was
cracked and pushed forward, and the body of the vehicle had sustained damage,
including a dent and scratches on the driver's side. Testa's last memory was seeing headlights
coming around the corner, as she leaned against her vehicle.
Immediately after responding to the scene
and approximately one-quarter mile away, on a street just off the one where
Testa had lain injured, police officers found the defendant's vehicle parked
"in an odd manner" far away from the curb adjacent to the defendant's
home. The vehicle was still warm, as if
recently driven; it was dented and scratched on the passenger's side. The gas cap door was ajar. Blood, later determined to be from Testa,
also was found on the vehicle. The defendant,
who was "slightly unsteady on her feet," came outside to speak with
the officers who were examining her vehicle.
The officers asked if she had been out that evening, to which she
responded, "Yes. Is everyone
okay?" The defendant reported that
she had been out at a social hall, where she had consumed two beers, and she
had arrived home "not too long" before the officers arrived.
Trooper David Bergeron of the
Massachusetts State Police collision analysis and reconstruction section
assessed the scene and inspected both Testa's and the defendant's
vehicles. He observed the layout of the
neighborhood, as well as road and lighting conditions as part of his collision
investigation and reconstruction analysis.[1]
He created a computer-based forensic map based on his measurements at
the scene. Later, he drove the
defendant's vehicle, concluding that it was operating normally.
Following a jury trial, the defendant was
convicted of leaving the scene of property damage (leaving the scene). G. L. c. 90,
§ 24 (2) (a). She was
acquitted of negligent operation of a motor vehicle under the influence of
intoxicating liquor causing serious bodily injury (OUI-SBI). G. L. c. 90, § 24L (1).[2] The judge sentenced the defendant to
"[t]wo years, six months to serve, balance suspended for two years. No driving during the period of the suspended
sentence."
Eleven days later, the defendant filed a
motion to revise and revoke sentence, seeking consideration of her primary
caretaker status under the caretaker statute.
See Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016). Following a hearing, the judge found that the
defendant was the primary caretaker of her eight year old son. However, he determined, sua sponte, that the
caretaker statute violated the constitutional guarantee of equal protection,
stating, "if you have a child, you don't go to jail. But if you don't have a child, you do go to
jail." He denied the motion, but
stayed the defendant's sentence pending appeal.
Discussion. 1.
Caretaker statute. The caretaker
statute, G. L. c. 279, § 6B (b), provides:
"Unless a
sentence of incarceration is required by law, the court may, upon conviction,
consider the defendant's status as a primary caretaker of a dependent child
before imposing a sentence."
We agree with the
defendant and the Commonwealth that the caretaker statute does not violate
equal protection. The caretaker statute
neither burdens a fundamental right[3] nor employs a suspect classification;[4]
accordingly, our equal protection analysis is governed by the rational basis
test pursuant to which a statute is constitutional so long as it is rationally
related to a legitimate State interest.
See Goodridge v. Department of Pub. Health, 440 Mass. 309, 330 (2003).
There can be no dispute that the
Commonwealth has a legitimate "interest in protecting the well-being of
children." Matter of McCauley, 409
Mass. 134, 137 (1991). See Prince v.
Massachusetts, 321 U.S. 158, 166 (1944) ("[S]tate as parens patriae"
has a legitimate and compelling interest in "youth's well being");
Custody of a Minor, 375 Mass. 733, 737 (1978), quoting Wisconsin v. Yoder, 406
U.S. 205, 234 (1972) (recognizing State's interest in "health or
safety" of children). Nor can there
be any serious doubt but that dependent children can be negatively impacted by
the incarceration of their primary caretakers.
See generally Myers, Smarsh, Amlund-Hagen & Kennon, Children of
Incarcerated Mothers, 8 J. Child & Fam. Stud. 11, 11 (1999) ("Children
whose mothers are in prison or jail are among the riskiest of the high risk
children in our nation. These children
typically experience poverty, school problems, repeated shifting of households
and caregivers, and the pain and disruption that accompany separation from the
mother" [citations omitted]); Moretti & Peled, Adolescent-Parent
Attachment: Bonds That Support Healthy
Development, 9 Paediatrics & Child Health 551, 552-553 (2004) (discussing
damaging effects to children where parent becomes unavailable). We have no trouble concluding that the
caretaker statute (which permits a judge, when imposing a sentence, to examine
whether a defendant is a primary caretaker for a dependent child and to
consider sentencing alternatives to incarceration) is rationally related to
that interest. Accordingly, the
caretaker statute passes muster under the rational basis test. See Goodridge, 440 Mass. at 330.
2.
Sentencing. The defendant next
contends that the judge sentenced her based on acquitted conduct, the OUI-SBI
charge.[5] While "a sentencing
judge may not undertake to punish the defendant for any conduct other than that
for which the defendant stands convicted in the particular case,"
Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976), the judge here made no
intimation that he was punishing the defendant for acquitted conduct. To the contrary, the judge stated,
"There's not
a chance in the world that I'm going to sentence her for OUI when the jury
found her not guilty. . . .
I want the record to be crystal clear.
I'm not considering in any way, shape or form the fact that she was
operating under the influence because as a matter of law now she wasn't."[6]
On this record,
we cannot reasonably conclude that the judge sentenced the defendant based on
conduct for which she was acquitted.
3.
Admissibility of expert testimony.
On appeal, the defendant presses her preserved objection to Bergeron's
opinion that "a reasonable motorist traveling through the neighborhood,
[with a] high expectation that someone could be there, would have adjusted
their driving behavior and [would] have been able to avoid this
collision." Specifically, the
defendant argues that Bergeron's testimony neither was based on any specialized
knowledge and training nor developed through use of specialized tools. Judges have "broad discretion"
(quotation omitted) in assessing expert testimony reliability, and to admit it
where "'specialized knowledge would be helpful' to the jury." Commonwealth v. Holley, 476 Mass. 114, 125
(2016), quoting Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011). Bergeron's training and experience were
discussed in detail on direct examination.[7]
He testified as to his investigative process. He examined the physical evidence by
conducting a walk-through of the scene.
He conducted forensic mapping using surveying equipment and created a
computer-based diagram of the accident scene.
Bergeron explained his observations of the lighting conditions and other
cars parked on the thickly-settled street the evening of the accident. He testified as to the speed limit on the
road, and his observations that there were no defective road conditions that
could have contributed to the accident.
Following the accident, Bergeron tested the defendant's vehicle, which
appeared to be functioning normally. On
this record, the judge did not abuse his discretion in permitting the
testimony.
Even assuming, arguendo, that Bergeron's
testimony was erroneously admitted, it was not prejudicial. The testimony related to the negligence
element of the OUI-SBI charge, of which the defendant was acquitted. See Commonwealth v. Duffy, 62 Mass. App. Ct.
921, 923 (2004) (no prejudice where evidence erroneously admitted most directly
related to acquitted conduct).[8]
4.
Sufficiency of evidence. The defendant
also challenges the sufficiency of the evidence that she knew she caused damage
to Testa's vehicle, an element of the crime of leaving the scene.[9] Viewed in the light most favorable to the
Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence
permitted the jury to find the requisite knowledge. Testa's injuries, the considerable damage on
the driver's side of Testa's vehicle, Testa's hair found on the cracked and
displaced driver's side mirror, the debris (including cracked coffee mug and
cell phone) on the ground where Testa was found lying, the damage on the
passenger's side of the defendant's vehicle, and Testa's blood on the
defendant's vehicle were consistent with a collision. No stretch of the imagination is required to
infer that the impact that caused this degree of damage resulted in noise and
physical jostling of the vehicles.
Moreover, the defendant's vehicle was found, parked in an odd manner in
front of her home just a short while after the accident. When officers were examining her car, the
defendant asked, "Is everyone okay?"
Together, this evidence would permit the jury to infer reasonably that
the defendant knew that she had caused damage to property.
Conclusion. The judgment is affirmed.[10] We remand for reconsideration of the
defendant's motion to revise and revoke consistent with this opinion.[11]
So ordered.
footnotes
[1] On cross-examination, Bergeron
acknowledged that he did not use several other tools and methodologies that he
had employed in connection with other accident reconstructions.
[2] Charges of operating under the
influence of liquor and negligent operation of a motor vehicle were dismissed
before trial.
[3] "Fundamental rights generally are
those that stem explicitly from or are implicitly guaranteed by the
Constitution." LaCava v. Lucander,
58 Mass. App. Ct. 527, 533 (2003).
Although related to childrearing, the caretaker statute does not burden
the fundamental right to custody or control over one's child. See Youmans v. Ramos, 429 Mass. 774, 784
(1999) ("The liberty interest of a parent in his relationship with his
child is fundamental").
[4] The caretaker statute makes no
distinction based on sex, "race, religion, alienage, national origin and
ancestry, [or] certain quasi suspect classes, based on gender and [marital
status of one's parents]." LaCava,
58 Mass. App. Ct. at 532. See
Commonwealth v. King, 374 Mass. 5, 20-21 (1977).
[5] The defendant grounds her argument in
the statement of the prosecutor that, "given the facts of this case, the
nature of the property damage and what it entailed," probation alone would
be inappropriate.
[6] The defendant also has not met her
heavy burden to show that the sentence, which fell within the statutory limit
(and reduced her committed time to six months), was cruel and unusual. See Cepulonis v. Commonwealth, 384 Mass. 495,
497 (1981), quoting Commonwealth v. Jackson, 369 Mass. 904, 910 (1976)
("punishment must be so disproportionate to the crime that it 'shocks the
conscience and offends fundamental notions of human dignity'"). See also Harding v. Commonwealth, 283 Mass.
369, 374 (1933) (sentence constitutional where it imposed "[n]o greater
aggregate sentence . . . than was authorized" by Legislature).
[7] In addition to his training, Bergeron
testified that he had analyzed approximately one hundred collisions during his
tenure as a State trooper. The defendant
did not object to Bergeron's qualifications as an accident investigation and
reconstruction expert, and (to the extent the defendant challenges those
qualifications for the first time on appeal) we discern no error. See Commonwealth v. Fritz, 472 Mass. 341, 349
(2015).
[8] Contrary to the defendant's
contention, the judge was not required to instruct the jury regarding
Bergeron's failure to conduct certain tests during his investigation. See Commonwealth v. Williams, 439 Mass. 678,
687 (2003).
[9] To support the conviction for leaving
the scene, the Commonwealth had to prove beyond a reasonable doubt that the
defendant, (1) while operating a motor vehicle on a public way,
(2) caused damage to another person's property, and (3) knowing she
caused such damage, (4) did not stop and make known her "name,
residence and the register number of [her] motor vehicle." G. L. c. 90,
§ 24 (2) (a).
[10] To the extent the defendant's other
arguments have not been explicitly addressed, "they 'have not been
overlooked. We find nothing in them that
requires discussion.'" Commonwealth
v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332
Mass. 66, 78 (1954).
[11] On remand, the judge is instructed to
make written findings as required by the caretaker statute. G. L. c. 279, § 6B (b).