Commonwealth v. Debra M. Milesi.

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

23-P-109

COMMONWEALTH

vs.

DEBRA M. MILESI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Debra M. Milesi, was convicted of motor vehicle

homicide while operating under the influence of alcohol, leaving

the scene of a motor vehicle collision causing death, and

negligent operation of a motor vehicle. On appeal, she contends

that the evidence at trial was insufficient to warrant a

consciousness of guilt instruction, and that the failure to

request a Bowden instruction constituted ineffective assistance

of counsel. We affirm.

Background. On September 29, 2018, at approximately

1 A.M., Adams Police Department Officers Dakota Baker and

Nicholas Dabrowski responded to the defendant's home following a

report that the defendant had threatened to commit suicide. The

officers conducted a protective sweep of the home and observed
open bottles of alcoholic beverages and empty prescription pill

bottles, but the defendant was not home. The officers left the

home, entered their respective vehicles, requested a description

of the defendant's car, and headed toward Summer Street to

"check" local establishments and try to locate the defendant.

At or near the same time, Susan Knapp was near the area of

East Hoosac Street and observed a maroon vehicle "going really

fast down the hill." She saw that vehicle strike the victim,

who was walking toward his own vehicle. Knapp heard "like a

thud" and saw the maroon vehicle continue down the hill, but

then return. Knapp saw the driver, whom she recognized as the

defendant, get out of the maroon vehicle and pull on the body of

the victim, Jeremy Bernard. Knapp said to the defendant

"listen, you hit him . . . you can't touch him." The defendant

responded that "she didn't hit him."

Around the same time, Brenda Danforth was in a vehicle in

the same area as Knapp and heard "a loud crash." Danforth

looked in her side-view mirror, saw a "dark red SUV-type of car

go by," and observed that vehicle stop in the middle of the

road. She watched a woman with blonde hair (the defendant) get

out of the vehicle and saw her "pulling on something." Danforth

left her vehicle, went to see if the woman needed help, and saw

the victim's body lying in the road.

2
As Officer Baker drove on Summer Street and neared a four-

way intersection, he observed "a large amount of lights, people,

and a car parked in the middle of the road." He "turned [his]

vehicle around," drove up East Hoosac Street, and saw a "2006

red Chevrolet HHR with the Massachusetts plate 376 matching" the

description of the defendant's vehicle. Around this time a

bystander yelled to Officer Baker, "[g]o get her," while another

person said "that's her, that's her, get her" as the defendant's

vehicle "was pulling away." According to Danforth, when Officer

Baker arrived, it was "at that point" that the defendant "got

into her car and started driving away." Danforth and others at

the scene yelled to Officer Baker, and "then he proceeded to

follow" the defendant. Officer Baker followed the red Chevrolet

and stopped the vehicle.1

Next, Officer Baker approached the vehicle, saw the

defendant sitting in the driver's seat, observed the keys in the

ignition, and saw the defendant "put the vehicle into park."

Officer Baker noticed that the defendant "had slurred speech,

bloodshot, glassy eyes. Her speech was slurred, and [he] could

smell a very strong alcoholic beverage smell coming from her

1 Officer Baker testified that he approached the red Chevrolet.
It is unclear from his testimony whether he performed a motor
vehicle stop, or whether he approached the vehicle after it had
come to a stop. However, video footage submitted into evidence
depicts Officer Baker effectuating a traffic stop.

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person." He also "noticed that her windshield had been smashed

in." He asked, "what happened to the windshield," and the

defendant responded, "I didn't hit anybody." The defendant was

"[e]vasive, uncooperative at times" while Officer Baker spoke

with her. Based on his observations during their interaction,

Officer Baker formed the opinion that she was intoxicated.

While he spoke with the defendant, Officer Baker "could hear

screaming and yelling down the street," and thus placed the

defendant in his police cruiser so that he could assist Officer

Dabrowski who had arrived at the crime scene soon after Officer

Baker.

Officer Baker ran down the street and encountered a chaotic

scene where Officer Dabrowski "was trying to keep everybody

calm." Officer Baker saw the victim's body on the roadway

adjacent to a blue Ford Focus. The victim had "bright red blood

coming from his face, head region . . . his legs appeared to be

in unnatural positions." The blue Ford Focus, which was

identified as the victim's vehicle, "had scratches all down the

side, and the mirror had been broken off." After assisting in

"back boarding" the victim and placing him in an ambulance that

had arrived on the scene, Officer Baker returned to his cruiser.

He saw the defendant still moving around in the back seat and

left to collect evidence for a few minutes, but upon returning

to the cruiser, he "found her breathing but unresponsive."

4
Eventually an ambulance came and transported the defendant to

the hospital. Subsequent testing revealed the defendant to have

a blood alcohol concentration of .14 percent.

The victim was taken to the hospital and died at Berkshire

Medical Center one week after the crash. There was no dispute

at trial that the defendant drove the red vehicle and struck and

killed the victim. The defense was lack of criminal

responsibility, and both parties called experts who testified to

their opinions as to whether the defendant could appreciate the

criminality of her acts or conform to the law.2

Discussion. 1. Consciousness of guilt instruction. The

defendant argues that the judge abused his discretion in

providing a consciousness of guilt instruction to the jury.

Where, as here, the defendant did not object to the giving of

the instruction, or the content thereof, our review is limited

to whether there was any error, and if so, whether that error

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

"Consciousness of guilt instructions are permissible when

there is an 'inference of guilt that may be drawn from evidence

of flight, concealment, or similar acts.'" Commonwealth v.

2 There was evidence that the defendant had attempted suicide
several times, and suffered from, inter alia, "major depressive
disorder" and "possible personality disorder with borderline
paranoid and avoidant features."

5
Stuckich, 450 Mass. 449, 453 (2008), quoting Commonwealth v.

Toney, 385 Mass. 575, 584 & n.4 (1982). "False statements made

to the police are a standard example of admissible evidence on

consciousness of guilt." Commonwealth v. Carrion, 407 Mass.

263, 276 (1990).

The defendant argues that there was no evidence in this

case that she made false statements to the police. We disagree.

Asked by Officer Baker about the smashed windshield on her

vehicle, the defendant responded that she "didn't hit anybody."

Contrary to this statement, there was overwhelming evidence that

the defendant struck the victim and caused his death. As the

jury could infer that the defendant's statement was false, the

judge did not err in giving a consciousness of guilt

instruction. See Commonwealth v. Vick, 454 Mass. 418, 424-426

(2009). Likewise, eyewitnesses testified that the defendant

drove away after striking the victim with her vehicle. Although

she returned, as soon as a police cruiser came upon the scene

she again entered her vehicle and drove away.3 This evidence was

3 Contrary to the defendant's claim on appeal, the video evidence
from the camera in Officer Baker's police cruiser did not
contradict the eyewitness testimony to the effect that the
defendant left the scene at the time of the first officer's
arrival. Rather, the video evidence, which was admitted in
evidence and has been reviewed by this panel, shows the
defendant's vehicle departing as soon as the cruiser driven by
Office Baker approaches the area, and thus the video evidence
tended to corroborate the eyewitness testimony.

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sufficient to warrant a consciousness of guilt instruction.

Thus, there was no error.4 See Stuckich, 450 Mass. at 453.

2. Bowden instruction. The defendant also claims that

trial counsel rendered ineffective assistance by failing to

request an instruction pursuant to Commonwealth v. Bowden, 379

Mass. 472, 486 (1980). The claim is unavailing.

To prevail on a claim of ineffective assistance of counsel,

the defendant must establish that there has been "serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer" and that, as a

result, she was "likely deprived . . . 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) (prejudice standard under second prong

of Saferian test met when reviewing court has "serious doubt

whether the jury verdict would have been the same had the

defense been presented"). The defendant did not raise this

claim through the preferred method of a motion for new trial

accompanied by affidavits, and thus presents a claim "in its

4 The defendant also argues that the consciousness of guilt
instruction failed to specify (1) the evidence on which the jury
could rely and (2) the charges to which the instruction applied.
The defendant cites no persuasive authority for the proposition
that such detail is necessary, or that its absence is
prejudicial. The argument is thus unavailing.

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weakest form[,] because it is bereft of any explanation by trial

counsel for his actions and suggestive of strategy contrived by

a defendant viewing the case with hindsight" (quotation and

citation omitted). Commonwealth v. Diaz, 448 Mass. 286, 289

(2007). "Because the defendant raises [this] claim[] for the

first time on direct appeal, [its] factual basis must appear

'indisputably on the trial record' for us to resolve [it]."

Commonwealth v. Vera, 88 Mass. App. Ct. 313, 323 (2015), quoting

Commonwealth v. Dargon, 457 Mass. 387, 403 (2010). This is not

such a case.

As the Supreme Judicial Court has held, "a judge is not

required to instruct on the claimed inadequacy of a police

investigation. 'Bowden simply holds that a judge may not remove

the issue from the jury's consideration.'" Commonwealth v.

Boateng, 438 Mass. 498, 506-507 (2003), quoting Commonwealth v.

O'Brien, 432 Mass. 578, 590 (2000). In this case, "the judge

did not remove the inadequacy of the police investigation from

consideration by the jury and so complied fully with Bowden's

only requirement." Commonwealth v. Williams, 439 Mass. 678, 687

(2003). See Commonwealth v. Bresilla, 470 Mass. 422, 439

(2015). Indeed, the defendant presented the issue of claimed

inadequate police work through examination of witnesses and in

her closing argument. There was no error. See Williams, supra

("There was no error because the giving of such an instruction

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is never required"). See also Commonwealth v. Gonsalves, 99

Mass. App. Ct. 638, 644 (2021) (noting that the giving of a

Bowden instruction is never required and thus counsel was not

ineffective for failing to request one).

Judgments affirmed.

By the Court (Milkey,
Massing & Neyman, JJ.5),

Assistant Clerk

Entered: February 6, 2024.

5 The panelists are listed in order of seniority.

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