Commonwealth v. Christos J. Zevos.

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

22-P-1203

COMMONWEALTH

vs.

CHRISTOS J. ZEVOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of the

motor vehicle homicide of Charlene Lewis by negligent operation.

On appeal, he claims there was insufficient evidence to

establish that his operation of his car was negligent, and that

a claimed misstatement of the law in the prosecutor's closing

argument created a substantial risk of a miscarriage of justice.

We affirm.

1. Sufficiency of the evidence. The defendant claims that

the evidence was insufficient to support his conviction where

the Commonwealth's theory of the case, i.e., that the crash was

avoidable, and for that reason, the defendant was negligent, was

erroneous. We disagree.

"When analyzing whether the record evidence is sufficient
to support a conviction, an appellate court is not required
to 'ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.'
Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475
(2008), quoting . . . Commonwealth v. Velasquez, 48 Mass.
App. Ct. 147, 152 (1999). . . . Rather, the relevant
'question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the
crime beyond a reasonable doubt.' Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting . . . Jackson
v. Virginia, 443 U.S. 307, 319 (1979)."

Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009).

When evaluating sufficiency, the evidence must be reviewed

not based on the theory of the case urged by the prosecution,

but rather with specific reference to the substantive elements

of the offense. See Jackson, 443 U.S. at 324 n.16; Latimore,

378 Mass. at 677-678. The substantive elements of motor vehicle

homicide by negligent operation are: "(1) operation of 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." Commonwealth v. Geisler, 14 Mass. App. Ct.

268, 276 (1982), quoting Commonwealth v. Burke, 6 Mass. App. Ct.

697, 699 (1978). See G. L. c. 90, § 24G (c). 1 Ordinary

negligence is enough to establish motor vehicle homicide,

Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 46 (2016), and

"[t]he appropriate standard of causation to be applied in a

negligent vehicular homicide case under § 24G is that employed

1 The judge properly instructed on the elements of the offense
and the defendant does not claim otherwise.

2
in tort law." Commonwealth v. Angelo Todesca Corp., 446 Mass.

128, 141 (2006), quoting Commonwealth v. Berggren, 398 Mass.

338, 340 (1986). The defendant's sufficiency claim on appeal

only challenges the third element cited above.

In the light most favorable to the Commonwealth, the jury

were entitled to find the following. In the early morning hours

of September 22, 2019, the victim, who was a pedestrian in a

marked crosswalk, was struck by a car operated by the defendant. 2

The victim was propelled into the air and came to rest forty-

three feet from the place of impact. There were no adverse

weather conditions at the time. The area of crosswalk and the

roadway were well-lit by streetlights, and there was additional

ambient light generated from nearby businesses. The crosswalk

was also appointed with yellow reflective crosswalk signs on

both sides of the road. The reflective nature of the signs made

them more visible at night. In the middle of the crosswalk and

in the center of the road, there were also reflective, spring-

loaded signs cautioning motorists to yield to pedestrians. In

addition, the victim was wearing a gray shirt with silver

glitter on it.

The State police did a reconstruction of the crash scene.

The posted speed limit on that road was twenty-five miles per

2 The victim later died from the blunt force trauma caused by
being struck by the defendant's car.

3
hour (mph). 3 Utilizing one method of calculating, the

reconstructionist (sergeant) determined that the defendant's car

was traveling as fast as twenty-nine mph; alternatively, from

his analysis of video footage, the sergeant calculated that the

car was traveling as fast as thirty-one mph. In addition, one

civilian witness said the defendant's car "was going fast. Very

fast." Another civilian witness approximated the defendant's

speed to be between thirty-five to forty mph. The sergeant also

determined, based on available video and mathematical

calculations, that the victim was in the crosswalk for between

six and one-half to seven seconds, and would have been visible

to a driver in the defendant's position from 250 feet away.

The defendant did not apply his brakes until after he

struck the victim. He later remarked he "didn't see her in

time" and "couldn't break in time." A car traveling between the

twenty-five mph speed limit and the rate of thirty-one mph

calculated as part of the State police reconstruction, would

require between 104 and 138 feet to stop before colliding with

the victim. In the end, it was the sergeant's opinion that the

3 The defendant claims that because the State police used a
sports utility vehicle instead of a sedan -- which the defendant
drove -- to do the reconstruction, the results were invalid or
insufficient. However, this claim relates to the weight of the
evidence, not its sufficiency. "[I]t is for the jury alone to
determine what weight will be accorded to the evidence."
Commonwealth v. Hoffer, 375 Mass. 369, 377 (1978).

4
defendant "should have been able to perceive, identify, and

react to the [victim]. The [defendant] had the time and

distance to bring the vehicle to a stop and to avoid the

[victim] and avoid the collision."

From this evidence, and the reasonable inferences

therefrom, the jury could rationally have concluded that the

defendant failed to exercise ordinary care when he drove as much

as fifteen mph above the speed limit. 4 He failed to timely

perceive, identify, and react to the visually illuminated

victim, in a cautioned marked crosswalk discernable on the

roadway and by two types of signage, from a distance that would

have provided a non-negligent driver ample opportunity to avoid

a collision with the victim. Given the well-lit nature of the

4 Based on the testimony of one police officer, and contrary to
our standard of review, the defendant claims that there was no
evidence that he had been speeding at the time of the accident.
However, this claim ignores the evidence from the accident
reconstruction, which calculated the defendant's speed to be as
much as six mph over the speed limit, and that of the lay
witness who approximated his speed to be as much as fifteen mph
over the speed limit. To indulge the defendant's claim, "we
would have to view the evidence in the light least favorable to
the Commonwealth, which, of course, we cannot do." Commonwealth
v. Arias, 78 Mass. App. Ct. 429, 435 (2010). The defendant also
claims that the testimony of one of the civilian witnesses "was
so lacking in credibility that no rational juror could have
believed that it was true, particularly in light of the
objective speed calculations." Again, this ignores our standard
of review, because the "assessment of the weight and credibility
of the evidence [is] properly left to the jury." Commonwealth
v. AdonSoto, 475 Mass. 497, 510 (2016).

5
crosswalk, the presence of several caution indicators, the

absence of poor weather conditions, an unobstructed straight

roadway, and the amount of roadway he had to avoid the

collision, it was a reasonable inference that the defendant's

attention was diverted from the roadway and ultimately the

victim herself. See Commonwealth v. Kline, 19 Mass. App. Ct.

715, 720 (1985) (evidence of negligence sufficient where "[t]he

jury could conclude that the defendant at a critical moment took

his eyes off the road"). See also Commonwealth v. Casale, 381

Mass. 167, 173 (1980) ("inferences drawn by the jury need only

be reasonable and possible and need not be necessary or

inescapable"). In other words, the evidence before the jury was

sufficient to permit it to find that the defendant operated his

car "negligently so as to endanger [the victim's] life or

safety." Geisler, 14 Mass. App. Ct. at 276. See Commonwealth

v. McGrath, 60 Mass. App. Ct. 685, 691 (2004). 5

2. Closing argument. For the first time on appeal, the

defendant claims that the prosecutor misstated the law in his

closing argument by urging the jury to convict the defendant if

5 The defendant's brief makes several references to the notion
that he was not under the influence of alcohol and that he
passed the field sobriety tests. However, that variable adds
nothing to our appellate equation where the defendant was
neither charged with nor convicted of motor vehicle homicide by
reason of being under the influence of alcohol. See G. L.
c. 90, § 24G (a).

6
it found that the collision was avoidable without regard to

whether the defendant was operating negligently so as to

endanger human life or safety. As there was no objection to the

argument at trial, we review to determine if there was error,

and if so, whether it created a substantial risk of a

miscarriage of justice.

To determine whether the prosecutor's closing argument

created a substantial risk of a miscarriage of justice, and

keeping in mind that "[e]rrors of this magnitude are

extraordinary events and relief is seldom granted," Commonwealth

v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions:

"(1) Was there error? (2) Was the defendant prejudiced by
the error? (3) Considering the error in the context of the
entire trial, would it be reasonable to conclude that the
error materially influenced the verdict? (4) May we infer
from the record that counsel's failure to object or raise a
claim of error at an earlier date was not a reasonable
tactical decision?"

Id. at 298 (citations omitted). "Only if the answer to all four

questions is 'yes,' may we grant relief." Id. See Commonwealth

v. Russell, 439 Mass. 340, 345 (2003); Commonwealth v. Coutu, 88

Mass. App. Ct. 686, 693 (2015).

Near the beginning of his closing argument, the prosecutor

argued:

"Now, the term 'accident' has been used throughout this
trial, including during the course of the defense's closing
argument, and that term by itself may often be used to
describe a collision or a crash. But it's significant in

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the criminal context, because it has to do with liability.
Who's at fault?

"And I'd submit to you, ladies and gentlemen, that a crash
that is preventable or avoidable is not an accident. [And]
the crash that occurred in [this] particular case was not
an accident because of the circumstances surrounding it." 6

However, one page later in the transcript, the prosecutor

properly explained the four elements of motor vehicle homicide

by negligent operation, noting that the prosecution had to prove

each element to the jury beyond a reasonable doubt. In

addition, he cautioned the jury that nothing he argued could

override the judge's instructions on the law.

Turning to the first Randolph question, we answer it in the

negative because there was no error, as the prosecutor did not

misstate the law. Rather, his argument focused the jury on the

evidence it should consider when it determined whether the

defendant operated the car "recklessly or negligently so as to

endanger human life or safety." Geisler, 14 Mass. App. Ct. at

276. To illustrate that, the prosecutor argued that even at the

speed the defendant was driving, he should have been able to see

the victim in the well-lit crosswalk, and he had ample time and

distance to safely stop the car before striking her. In other

words, an attentive driver who was exercising a reasonable

degree of care would have been able to avoid the accident, and

6 In other portions of the prosecutor's closing argument, he also
referred to the collision as avoidable.

8
the defendant's failure to do so was negligence. See

Commonwealth v. Gurney, 261 Mass. 309, 312 (1927) (operator's

sightlines, speed, and "opportunity to avoid" collision, all

proper factors for jury to consider for motor vehicle homicide

by negligent operation). Furthermore, from an evidentiary

perspective, the argument was properly supported by the

sergeant's testimony that the defendant "should have been able

to perceive, identify, and react to the [victim]. The

[defendant] had the time and distance to bring the vehicle to a

stop and to avoid the [victim] and avoid the collision."

Even if the prosecutor's argument had misstated the law, we

could not answer "yes" to the next two Randolph questions, i.e.,

was the defendant prejudiced by the error, and in context of the

entire trial, would it be reasonable to conclude that the error

materially influenced the verdict? As stated above, the

prosecutor properly stated the elements of the crime and the

Commonwealth's burden of proof. Nothing relating to the

paradigm of the defendant's ability to avoid the collision

detracted from those elements or the burden of proof. Finally,

the judge properly instructed the jury on the elements of the

crime, and the defendant does not claim otherwise. In light of

these factors, the defendant suffered no prejudice, and if the

prosecutor's argument had been erroneous, it would not have

materially influenced the verdict. Because we do not answer all

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four of the Randolph inquiries in the affirmative, the defendant

has failed to establish that the two misstatements created a

substantial risk that justice miscarried. See Randolph, 438

Mass. at 298; Coutu, 88 Mass. App. Ct. at 693. See also

Commonwealth v. Dresser, 71 Mass. App. Ct. 454, 458 n.10 (2008)

(it is defendant's burden to establish existence of substantial

risk of miscarriage of justice).

Judgment affirmed.

By the Court (Meade, Neyman &
Hand, JJ. 7),

Assistant Clerk

Entered: March 15, 2024.

7 The panelists are listed in order of seniority.

10