Commonwealth v. Muir (Lawyers Weekly No. 11-146-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1767 Appeals Court COMMONWEALTH vs. EVERTON MUIR. No. 12‑P‑1767. Suffolk. October 18, 2013. ‑ December 18, 2013. Present: Cohen, Meade, & Sullivan, JJ. Motor Vehicle, Leaving scene of accident. Practice, Criminal, Lesser included offense, Instructions to jury. Indictment found and returned in the Superior Court Department on October 6, 2010. The case was tried before Patrick F. Brady, J. Daniel R. Katz for the defendant. Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth. MEADE, J. The defendant was indicted for leaving the scene of an accident causing death in violation of G. L. c. 90, § 24(2)(a1/2)(2) (subsection 2).[1] After a jury trial, the defendant was convicted of leaving the scene of an accident causing personal injury in violation of G. L. c. 90, § 24(2)(a1/2)(1) (subsection 1).[2] He was given a suspended sentence of six months, with two years of probation. On appeal, the defendant claims it was error for the judge to have instructed the jury on subsection 1 because it is not a lesser included offense of subsection 2, the evidence did not justify a lesser included instruction, and the evidence was insufficient to establish the defendant left the scene of the accident to avoid prosecution or evade apprehension. We affirm. Background. The following was the evidence adduced at trial. On April 1, 2010, at approximately 6:00 A.M., the defendant drove his girlfriend to the Wonderland subway station and dropped her off so she could take the subway to work. After completing this task, the defendant drove home. At approximately the same time that morning, Blanca Moreno’s (the victim) car broke down on Route 1A in Revere. According to the State Police accident reconstructionist, at approximately 6:15 A.M., the victim was running across the northbound lane of Route 1A against a red light when the defendant’s car struck her as she neared the end of the crosswalk. The victim was launched onto the hood and up the windshield, and her elbow broke the glass. After that point of impact, the victim continued in the air and over a guardrail before she landed on the southbound side of Route 1A, eighty-seven feet from the point of collision. The defendant later reported that he swerved but did not apply his brakes before impact. Visibility was low that morning, the defendant was […]