Commonwealth v. Njuguna

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revision and are superseded by the advance sheets and bound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

23-P-240 Appeals Court

COMMONWEALTH vs. DAVID K. NJUGUNA.

No. 23-P-240.

Worcester. September 13, 2023. – May 2, 2024.

Present: Rubin, Neyman, & Walsh, JJ.

Homicide. Motor Vehicle, Homicide, Operating to endanger.
Wanton or Reckless Conduct. Practice, Criminal,
Duplicative convictions, Lesser included offense, Required
finding, New trial, Assistance of counsel. Constitutional
Law, Assistance of counsel. Due Process of Law, Assistance
of counsel. Witness, Impeachment.

Indictments found and returned in the Superior Court
Department on May 18, 2016.

The case was heard by Janet Kenton-Walker, J., and a motion
for new trial was heard by her.

Andrew P. Power for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.

NEYMAN, J. Following a jury-waived trial in the Superior

Court, the defendant, David K. Njuguna, was convicted of

involuntary manslaughter, G. L. c. 265, § 13, motor vehicle
2

homicide by negligent or reckless operation ("motor vehicle

homicide"), G. L. c. 90, § 24G (b),1 reckless or negligent

operation of a motor vehicle so as to endanger the lives or

safety of the public ("operating to endanger"), G. L. c. 90,

§ 24 (2) (a), and operating an uninsured motor vehicle, G. L.

c. 90, § 34J.2 On appeal he argues that the evidence at trial

was insufficient to sustain convictions for involuntary

manslaughter, motor vehicle homicide, and operating to endanger,

and that his trial attorney rendered ineffective assistance of

counsel. These claims are unpersuasive. However, the defendant

also contends that the convictions for manslaughter and motor

vehicle homicide are duplicative and thus only the most serious

crime of manslaughter may stand.3 Although motor vehicle

homicide is not a lesser included crime of manslaughter under

the traditional elements-based test, see Commonwealth v. Vick,

454 Mass. 418, 431 (2009), and Morey v. Commonwealth, 108 Mass.

433, 434 (1871), in this specific context, Supreme Judicial

1 In 2018, two years after the conduct at issue in the
present case, the Legislature amended the motor vehicle homicide
statute, G. L. c. 90, § 24G. None of the amendments impact the
issues raised on appeal.

2 The judge found the defendant not guilty of (1) operating
a motor vehicle under the influence of drugs and causing the
death of another person, and (2) felony motor vehicle homicide.

3 The defendant likewise argues that the operating to
endanger conviction is duplicative of the involuntary
manslaughter conviction.
3

Court precedent construing the motor vehicle homicide statute

holds that because the Legislature did not intend to impose

multiple punishments for manslaughter and motor vehicle

homicide, punishments under the two statutes may not be imposed

for the same act. See Commonwealth v. Jones, 382 Mass. 387, 394

(1981). Consequently, we reverse the judgments of conviction of

the lesser offenses of motor vehicle homicide and operating to

endanger. We otherwise affirm the judgments of conviction of

manslaughter and operating an uninsured motor vehicle.

Background. Because the defendant challenges the

sufficiency of the evidence, we summarize the evidence in the

light most favorable to the Commonwealth, reserving certain

details for discussion. See Commonwealth v. Latimore, 378 Mass.

671, 676-677 (1979).

On the morning of March 16, 2016, the defendant drove his

2011 black Nissan Maxima to a marijuana dispensary in Brookline.

There, shortly before 11 A.M., he purchased four pre-rolled

marijuana cigarettes. He returned to the Nissan and

subsequently drove onto the Massachusetts Turnpike (route 90) at

the "Weston tolls" at approximately 11:19 A.M.4

4 Evidence regarding the locations of the defendant's
vehicle stemmed from multiple sources including eyewitness
testimony, the defendant's cellular telephone records,
corresponding cell site location information, and data from "E-
ZPass," the "electronic highway toll collection system."
Commonwealth v. Fitzpatrick, 463 Mass. 581, 585 n.7 (2021).
4

That same morning, a Honda Ridgeline truck was traveling

westbound on route 90 at approximately seventy to seventy-five

miles per hour. The driver, Steven Janko, saw a black or very

dark blue sedan "coming up pretty quickly," changing lanes to

pass a tractor-trailer, again changing lanes "quickly across all

the lanes," and then speeding past the Ridgeline. Janko

described the operator of the sedan as having "[d]ark hair, dark

skin." Janko commented to the two other occupants of the

Ridgeline, "I don't think I've ever seen anybody driving this

poorly." One of those occupants, Richard Brattlof, likewise

observed the black sedan, which he observed to be a Nissan,

"coming up really fast" and "moving at a high rate of speed."

He, too, described the driver as having "dark-colored skin," and

having "about shoulder length curlyish hair." Brattlof observed

the sedan pass the right side of the Ridgeline at a high rate of

speed and then "went back across two lanes to the far left-hand

lane" without using any turn signals.

Approximately one to two minutes later, Janko pulled into

the rest area in Charlton. Just after 12:04 P.M., as the

occupants of the Ridgeline returned to the vehicle, they

"noticed that the traffic on the Pike had come to a stop." They

sat in traffic for a long time and eventually passed a crash

scene, at which point Brattlof observed a "state [police]

cruiser, SUV" in a field off the side of the road, and a "black
5

Nissan with the whole front end torn up from the accident,

facing the wrong way on the right side of the road." Brattlof

stated that the black Nissan looked "similar" to the car that

had passed the Ridgeline at a high rate of speed earlier.

Several witnesses presented eyewitness testimony regarding

the crash itself. Christopher Lindsay, who was driving his Ford

Explorer westbound in the middle lane of route 90 at

approximately seventy-five miles per hour sometime before noon,

witnessed a black "Maxima or Altima" that "was going really

fast," and passed him on the left. The black car drove two to

three lengths ahead of Lindsay's Explorer, moved to the middle

lane without using a turn signal, moved to the right lane, and

"went right into the breakdown lane, and instantly straight into

the back of [a police] cruiser, the back corner of it."5 Lindsay

pulled his Explorer to the side of the road and ran to the

police cruiser, which was in a ditch.

Around noon another witness, Thomas Sorrentino, was also

driving westbound on route 90 at approximately seventy-five

miles per hour when he observed a "black Maxima" in front of him

"going from the left lane, and it darted over all the way to the

right lane" without braking or using any turn signals. Ahead,

Sorrentino noticed a State trooper in an unmarked vehicle, with

5 After impact, the police cruiser struck a Chevrolet Tahoe
that had been parked in front of the cruiser prior to the crash.
6

its lights activated, and a car in front of the cruiser. He saw

the black Maxima "cut over to the right lane pretty quickly, on

like an angle," at which time "[i]t seemed like [it] would go

off the road," but the vehicle "[p]retty much corrected itself

and stayed straight on the shoulder, and it rode the shoulder."

The black Maxima "kept continuing straight towards where the

state trooper was," and "collided into the back of the state

trooper's vehicle."6

At approximately noon that same day, Elizabeth Roche, a

registered nurse, was traveling with her daughter westbound on

route 90 and saw "an SUV-like vehicle on the grassy side, pushed

off more than the breakdown lane, completely off the highway."

She and her daughter got out of the car, approached the vehicle,

and saw that the cruiser was damaged to the extent that it "was

not identifiable as a police car." They also saw that there was

an occupant in the driver's side of the vehicle, Trooper Thomas

Clardy, who was unresponsive. Roche did not feel a pulse and

performed cardiopulmonary resuscitation (CPR) on Trooper Clardy

6 The Commonwealth also presented considerable evidence
corroborating the eyewitness testimony. This included physical
evidence documented and retrieved from the scene and from the
defendant's and victim's vehicles, photographic evidence, and
extensive testimony and evidence from accident reconstruction
experts. The accident reconstruction evidence included
testimony that there were no "pre-impact marks" at the crash
site, and opinion testimony that the Nissan driven by the
defendant was traveling at a minimum speed of eighty-one miles
per hour at impact.
7

until additional State police troopers and emergency personnel

arrived. Efforts to save Trooper Clardy's life were not

successful. He sustained fatal injuries, and the cause of death

was determined to be blunt force trauma to the head, neck, and

torso.

The defense at trial centered on the claim that the

defendant suffered a seizure or other medical event that caused

the crash. The judge credited the portion of the defendant's

expert witness's testimony that the defendant "may have suffered

a convulsive episode," but rejected his opinion that the episode

occurred prior to the crash. The judge further found that the

Commonwealth presented "reliable evidence as the level of both

active and inactive THC in the defendant's blood approximately

an hour after the event," but found that without expert

testimony the Commonwealth did not prove beyond a reasonable

doubt that the defendant's ability to drive was impaired by

marijuana. Accordingly, the judge acquitted the defendant of

the two counts -- operating a motor vehicle under the influence

of drugs and causing the death of another person and felony

motor vehicle homicide -- that required proof of intoxication.

Discussion. 1. Relationship between involuntary

manslaughter and motor vehicle homicide. The defendant argues

that the crime of motor vehicle homicide is merely a lesser form

of involuntary manslaughter by reckless driving and thus the
8

conviction on the less serious offense -- here motor vehicle

homicide -- must be vacated. The Commonwealth responds that

because motor vehicle homicide and involuntary manslaughter each

require proof of an element absent from the other, the former is

not a lesser included offense of the latter, and, accordingly,

the crimes are not duplicative, and the defendant's claim fails.

Our analysis begins with Jones, 382 Mass. at 394. There,

the Supreme Judicial Court considered whether motor vehicle

homicide is a lesser included crime of involuntary manslaughter.

Citing Morey, 108 Mass. at 434, the court noted that "[i]n

determining whether, on the basis of a single act, a defendant

may be prosecuted and punished for two statutory or common law

crimes, the long-prevailing test in this Commonwealth is whether

each crime requires proof of an additional fact that the other

does not" (emphasis added). Jones, 382 Mass. at 393. Applying

this traditional "elements-based" test, the court concluded that

"each offense plainly requires proof of an additional fact that

the other does not." Id. To convict a defendant of vehicular

homicide, the defendant must have operated "a motor vehicle upon

a way or in a place to which members of the public have access"

whereas "a conviction of manslaughter requires neither the use

of a motor vehicle nor any element of public access." Id. A

conviction of involuntary manslaughter requires that "the

Commonwealth must prove wanton or reckless conduct; to convict
9

of vehicular homicide, no such proof is necessary." Id. The

court thus concluded that vehicular homicide is not "a lesser-

included crime of manslaughter." Id. at 394.

Although the court in Jones declined to hold that motor

vehicle homicide is a lesser included offense of manslaughter,

it nonetheless concluded as follows:

"in the present situation, which in fact did involve
operation of a motor vehicle on a public way, the two
offenses are sufficiently closely related so as to preclude
punishment on both. . . . If involuntary manslaughter by
reckless driving in public is proved, homicide by
negligently operating to endanger is proved as well. The
former is merely an aggravated form of the latter."

Id. The court further stated that the legislative history of

the motor vehicle homicide law, G. L. c. 90, § 24G, indicates

that "the purpose of [that law], was to provide a middle ground

between the felony of manslaughter and the misdemeanor of

driving so as to endanger," and no support exists for the notion

that, "by enacting the [motor vehicle] homicide statute as a

middle ground between operating to endanger and manslaughter,

the Legislature intended to punish a defendant for the two less

serious motor vehicle offenses if he is already being punished

under the most serious offense of manslaughter." Id. at 390-

391, 394. In view of the legislative purpose of the statute,
10

the court held that "multiple punishments should be disallowed,"

and vacated the less serious offense of motor vehicle homicide.7

Although Jones relied on an analysis of legislative intent,

not the similarity of the conduct at issue, it did at one point

state that "the two offenses are sufficiently closely related so

as to preclude punishment on both," language redolent of the

conduct-based test that was sometimes used to determine whether

convictions are duplicative. See, e.g., Commonwealth v. Santos,

440 Mass. 281, 292-294 (2003), overruled on other grounds by

Commonwealth v. Anderson, 461 Mass. 616, 633-634, cert. denied,

568 U.S. 946 (2012). But see Commonwealth v. Arriaga, 44 Mass.

App. Ct. 382, 387 (1998). Massachusetts appellate courts have

subsequently issued numerous decisions not only applying the

elements-based approach to determine whether multiple

convictions stemming from one criminal transaction are

duplicative, but also explaining that the conduct-based approach

is inapt. See Vick, 454 Mass. at 436 ("It bears repeating that

where, as here, neither crime is a lesser included offense of

the other, multiple punishments are permitted even where the

offenses arise from the very same criminal event").8

7 In Jones, the court likewise vacated a conviction of
operating to endanger, G. L. c. 90, § 24 (2) (a), on the same
basis. Jones, 382 Mass. at 396-397.

8 In Vick, the court reiterated that the traditional
elements-based test embodied in Morey and its progeny "remains
11

Seizing on this line of cases, the Commonwealth insists

that Jones is a vestige of the conduct-based test and no longer

controls the outcome in the present case. We agree that the

conduct-based approach has been rejected and note that it does

not appear that Jones was intended to support the application of

the conduct-based test. However, we disagree that Jones is not

controlling precedent in the context presented here. In

Commonwealth v. Suero, 465 Mass. 215 (2013), the most recent

Supreme Judicial Court case to note Jones's construction of the

motor vehicle homicide statute, the court reiterated that the

"Legislature did not intend 'to punish a defendant for the two

less serious motor vehicle offenses [motor vehicle homicide and

the standard for determining whether multiple convictions
stemming from one criminal transaction are duplicative." Vick,
454 Mass. at 431. See Commonwealth v. Jones, 441 Mass. 73, 76
(2004) (under Morey test "[t]he actual criminal acts alleged are
wholly irrelevant to application of [the rule]; rather, the
elements of the crimes charged are considered objectively,
abstracted from the facts" [citation omitted]); Commonwealth v.
Crocker, 384 Mass. 353, 360 (1981) ("In order to determine
whether the Legislature in a given situation has authorized
conviction and sentence under two statutory offenses, the Morey
test provides a fitting rule of interpretation"); Commonwealth
v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on
other grounds by Commonwealth v. Negron, 462 Mass. 102, 105
(2012) ("the siren song of the conduct-based approach has been
silenced"); Commonwealth v. Gallant, 65 Mass. App. Ct. 409, 414-
415 (2006) ("it is difficult to see how such a conduct-based
test could ever possibly mesh with the Morey standard");
Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 388 (1998)
(conduct-based analysis, "to the extent that it has been
incorporated into Massachusetts common law rule, applies only to
instances of successive prosecution, not multiple charges tried
in a single proceeding").
12

operating to endanger] if [the defendant] is already being

punished under the most serious offense of manslaughter.'"

Suero, 465 Mass. at 221, quoting Jones, 382 Mass. at 394. Thus,

the Commonwealth's argument is not persuasive.

To be clear, we recognize that Jones itself is limited to

the manslaughter, motor vehicle homicide, and operating to

endanger statutes. See Jones, 382 Mass. at 390-391 (from

legislative history underlying motor vehicle homicide statute,

it is "clear that the purpose [of the statute], was to provide a

middle ground between the felony of manslaughter and the

misdemeanor of driving so as to endanger"). Nonetheless, Jones

remains the law of this Commonwealth and it is controlling here.

See Jones, 382 Mass. at 394. Therefore, the conviction of the

lesser offense of motor vehicle homicide must be reversed. For

the same reasons, the judgment of conviction of the lesser

offense of operating to endanger must also be reversed. See id.

at 394-395 (vacating judgments of conviction of less serious

offenses of motor vehicle homicide and operating to endanger).

2. Sufficiency of the evidence. The defendant next argues

that there was no evidence that he voluntarily drove his car in

the seconds preceding the crash, and thus the Commonwealth

failed to prove the element of "operating a motor vehicle."

Accordingly, he contends, the convictions of motor vehicle

homicide and operating to endanger cannot stand.
13

We apply the familiar Latimore test to determine "whether,

after viewing the evidence in the light most favorable to the

[Commonwealth], any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

(emphasis and citation omitted). Latimore, 378 Mass. at 677.

"If, from the evidence, conflicting inferences are possible, it

is for the [factfinder] to determine where the truth lies, for

the weight and credibility of the evidence is wholly within

[its] province." Commonwealth v. Lao, 443 Mass. 770, 779

(2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). See

Commonwealth v. Nelson, 370 Mass. 192, 203 (1976) (evidence

"need not require the jury to draw the inference"; "sufficient

that the evidence permitted the inference" to be drawn). See

also E.B. Cypher, Criminal Practice and Procedure § 37.10 (4th

ed. 2014).

An individual "operates" a motor vehicle when, in the

vehicle, that individual "intentionally does any act or makes

use of any mechanical or electrical agency of the vehicle which,

alone or in sequence, will set the vehicle in motion or driv[e]

the vehicle under the power of the motor machinery" (citations

and quotations omitted). Commonwealth v. Merry, 453 Mass. 653,

661 (2009). Here, it was undisputed that the defendant drove

the black Nissan that struck and killed the victim.

Nevertheless, the defendant claims that he suffered a seizure
14

prior to the crash, and thus without evidence of braking,

negotiating a curve in the road, or other evidence of a

voluntary act, the proof of operation was deficient. The claim

is unpersuasive for various reasons.

First, the premise of the defendant's argument is incorrect

and unsupported by legal authority. The alleged absence of

evidence of braking or maneuvering the black Nissan prior to the

crash does not, standing alone, mandate a finding that the

defendant did not act voluntarily. It is obvious that

individuals still operate a motor vehicle when they

intentionally continue to "driv[e] the vehicle under the power

of the motor machinery" without braking or maneuvering (citation

omitted). See Merry, supra. Second, contrary to the

defendant's claim, multiple eyewitnesses observed the defendant

drive at very high speed, tailgate at excessive speed, weave in

and out of lanes, pass other vehicles in a dangerous manner,

cross myriad lanes of traffic without using turn signals or

applying brakes, drive into the breakdown lane at excessive

speed, and drive his vehicle into the victim's cruiser. One

eyewitness testified that the black Nissan cut across the lanes

of route 90 and then "[p]retty much corrected itself and stayed

straight on the shoulder" prior to striking the cruiser.

Another eyewitness similarly testified that, after moving across

route 90, the black Nissan drove straight into the cruiser. The
15

evidence that the defendant straightened his vehicle after

moving into the breakdown lane contradicts the claim that there

was no evidence that he committed any voluntary act immediately

before the crash. Third, this eyewitness testimony was

corroborated by the State police expert witness's testimony that

"maximum engagement marks" at the crash scene "are running

parallel . . . with the breakdown lane," which "indicates the

direction . . . the Nissan was traveling at impact." The

diverging opinion of the defendant's expert witness does not

alter the result. "That contradictory evidence exists is not a

sufficient basis for granting a motion for a required finding of

not guilty." Merry, 453 Mass. at 661.

Finally, the judge was free, but not required, to believe

the defense expert's testimony that the defendant had suffered a

"convulsive episode" such as a seizure or syncope prior to the

accident. See Commonwealth v. Urrea, 443 Mass. 530, 546-547

(2005) (jury not required to believe testimony of expert over

testimony of lay witness). This is particularly so in view of

the above-described evidence regarding the straightening of the

black Nissan immediately prior to the crash, as well as the

countervailing expert testimony proffered by the Commonwealth.

Specifically, another Commonwealth expert witness testified that

prior to the crash the defendant had never reported having a

seizure or losing consciousness; that prior to the crash there
16

was no evidence in any of the defendant's medical records or

elsewhere regarding any history of seizures or loss of

consciousness; and that it was only after the incident occurred

that the defendant mentioned that he had purportedly experienced

"episodes of loss of consciousness in the past." The judge was

free, in these circumstances, to reject the defendant's new

reports of a history of medical episodes and reject the defense

expert's opinion that the defendant suffered a seizure

immediately prior to the crash. See Merry, 453 Mass. at 663.

The defendant also contends that the conviction for

involuntary manslaughter cannot stand because the Commonwealth

failed to prove that wanton or reckless conduct caused the

collision. The argument is unpersuasive.

A conviction for involuntary manslaughter requires proof

that a defendant: (1) "caused the victim's death,"

(2) "intended the conduct that caused the victim's death," and

(3) acted in a manner that was wanton or reckless. Commonwealth

v. Guaman, 90 Mass. App. Ct. 36, 40 (2016). Wanton or reckless

conduct is "intentional conduct, by way either of commission or

of omission where there is a duty to act, which conduct involves

a high degree of likelihood that substantial harm will result to

another." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).

"What must be intended is the conduct, not the resulting harm."

Id. at 398. "The Commonwealth may prove wanton or reckless
17

conduct under a subjective standard, based on the defendant's

specific knowledge, or an objective standard, based on what a

reasonable person should have known under the circumstances."

Guaman, supra.

In the present case, a rational trier of fact could have

found beyond a reasonable doubt that the defendant intentionally

drove the black Nissan in a wanton or reckless manner. Indeed,

the judge credited the testimony of the various eyewitnesses who

observed the defendant's reckless operation of the black Nissan

and the crash itself. She also credited the testimony of the

Commonwealth's accident reconstruction experts and found that

the evidence showed that the defendant "operated his motor

vehicle in a continuously reckless manner during the seven to

eight minutes it took him to drive from [the area where the

first witnesses observed his erratic operation] to where Trooper

Clardy's cruiser and the Chevrolet Tahoe were stopped." The

judge further found as follows:

"With either indifference to or in disregard of the grave
risk of harm to others on the road, [the defendant] drove
at excessive speeds, tailgated at excessive speed, passed
vehicles, and attempted to pass vehicles in [an] extremely
dangerous manner by passing too closely and weaving in and
out. He continued to speed and then pass other vehicles
with conscious disregard to obvious hazards, including
Trooper Clardy's Cruiser with his flashing blue lights.
Without slowing down or signaling, [the defendant]
recklessly crossed three lanes of traffic at [eighty] miles
per hour, all the way into the breakdown lane and at
[eighty] miles per hour crashed into the back of the
Cruiser. I find, therefore, that he operated his vehicle
18

in a reckless manner, and therefore, also in a negligent
way."

Abundant evidence at trial supported these findings, and we have

little difficulty holding that the Commonwealth sustained its

burden of proof as to the involuntary manslaughter verdict. See

Commonwealth v. Hardy, 482 Mass. 416, 423-424 (2019); Guaman, 90

Mass. App. Ct. at 41.9

3. Ineffective assistance. The defendant also claims that

his trial attorney rendered ineffective assistance by failing to

confront a witness with evidence suggesting a "pro-victim/pro-

police" bias, and thus the judge abused her discretion in

denying his motion for a new trial. The argument is unavailing.

A motion for new trial may be granted only if it appears

that justice may not have been done. See Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). Such motions are

committed to the sound discretion of the judge, Commonwealth v.

Moore, 408 Mass. 117, 125 (1990), and "are granted only in

extraordinary circumstances," Commonwealth v. Comita, 441 Mass.

86, 93 (2004). "Reversal for abuse of discretion is

particularly rare where," as here, "the judge acting on the

motion was also the trial judge" (citation omitted).

9 For these reasons, as well as those discussed supra, we
reject the defendant's claim that the conviction for involuntary
manslaughter cannot stand because the Commonwealth failed to
disprove accident. See generally Commonwealth v. Figueroa, 56
Mass. App. Ct. 641, 648-650 (2002).
19

Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018).

Where, as here, a motion for a new trial is based on ineffective

assistance of counsel, the defendant must show that the behavior

of counsel fell measurably below that of an ordinary, fallible

lawyer and that such failing "likely deprived the defendant of

an otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See

Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (second prong

of ineffective assistance test met if there is substantial risk

of miscarriage of justice arising from counsel's failure).

As discussed above, two witnesses testified at trial to the

erratic and reckless operation of the black sedan by a dark-

skinned man on route 90, east of the crash site, some minutes

prior to the crash. On appeal, the defendant argues that his

trial counsel was ineffective in failing to impeach one of those

witnesses, Brattlof, with the fact that approximately one week

after the incident he posted on the social networking website

Facebook an image of a State police badge with a black mourning

band. The defendant contends that this display of sympathy

revealed Brattlof's motivation to aid the prosecution and

explained why his recollection of events, such as his

description of the defendant and description of the vehicle

driven by the defendant "improved over time."
20

"In general, failure to impeach a witness does not

prejudice the defendant or constitute ineffective assistance."

Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). See

Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) ("Impeachment

of a witness is, by its very nature, fraught with a host of

strategic considerations, to which we will, even on § 33E

review, still show deference"). See also Commonwealth v. Wall,

469 Mass. 652, 663-664 (2014). The strategic considerations are

particularly fraught where, as here, the impeachment would

necessitate that defense counsel put before the trier of fact

evidence that could evoke sympathy for the victim. See

Commonwealth v. Pillai, 445 Mass. 175, 187 (2005).

Here, even assuming without deciding that trial counsel's

failure to impeach Brattlof with his Facebook page material fell

measurably below that of an ordinary fallible lawyer, the judge

did not abuse her discretion in determining that this

shortcoming did not deprive the defendant of an otherwise

available, substantial ground of defense. As the judge noted in

her denial of the motion for a new trial, the record

demonstrates thoughtful and thorough cross-examination

throughout trial by defense counsel. This included the cross-

examination of Brattlof, which established that he was not

positive that the vehicle he saw before the crash was the

vehicle "involved in the accident"; that he was unsure of the
21

model of the vehicle he had seen; and that he had provided

varying descriptions of the driver's hair over time. See

Commonwealth v. Strickland, 87 Mass. App. Ct. 46, 62 (2015)

(noting defense counsel's effective cross-examination of witness

despite failure to impeach her with certain evidence).

Moreover, there was no dispute that the defendant drove the

vehicle that crashed into Trooper Clardy's cruiser, and the

testimony of Brattlof was corroborated by Janko as well as

through detailed circumstantial evidence regarding the

defendant's locations and travel times on route 90. See note 4,

supra. In addition, the evidence against the defendant was very

strong. See Wall, 469 Mass. at 665 (second prong of ineffective

assistance test not met where, inter alia, "weight of the

evidence against the defendant was overwhelming"). In sum, we

cannot say that defense counsel's alleged failure to impeach

Brattlof with his Facebook post created a substantial risk of a

miscarriage of justice. See Fisher, 433 Mass. at 357 ("it is

speculative to conclude that a different approach to impeachment

would likely have affected the jury's conclusion"). Therefore,

the judge did not abuse her discretion in denying the motion for

a new trial.

Conclusion. The judgments of conviction of the lesser

offenses of motor vehicle homicide and operating to endanger are

reversed, the verdicts are set aside, and judgments shall enter
22

for the defendant. The judgments of conviction of manslaughter

and operating an uninsured motor vehicle are affirmed. The

denial of the defendant's motion for a new trial is affirmed.

So ordered.