Commonwealth v. Juan Rodriguez.

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

24-P-129

COMMONWEALTH

vs.

JUAN RODRIGUEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On June 8, 2022, following a bench trial in the District

Court, Juan Rodriguez (defendant) was found guilty of operating

under the influence of liquor (count I), leaving the scene of

personal injury (count II), and negligent operation of a motor

vehicle (count V).1 The defendant now appeals, asserting that

there was insufficient evidence to convict him of leaving the

scene of personal injury. The defendant also argues that the

trial judge committed reversible error by prohibiting expert

opinion testimony as to the cause of the accident and asserts

1The defendant was acquitted of leaving the scene of
property damage (count III), unlicensed operation of a motor
vehicle (count IV), and a number plate violation (count VI).
that he is entitled to a new trial due to ineffective assistance

of counsel. Id. Because we agree that the Commonwealth failed

to present sufficient evidence to convict the defendant of

leaving the scene of personal injury, we reverse his conviction

as to count II, but otherwise we affirm.

Background. On November 20, 2020, around 10:30 P.M., New

Bedford police responded to a 911 call regarding a motor vehicle

accident that occurred in the area of Penniman Street and

Purchase Street. The call was placed by Sophia Leite (Leite),

who was skating at a skate park nearby when the accident

occurred. At trial, Leite testified that she heard "a loud like

bang or crash noise" and when she looked over, she saw a black

car stopped with its hazard lights on in a parking lot located

"pretty far" from the skate park. She testified that the car

then moved forward from its position in the parking lot and

crashed into a fence that separated the parking lot from the

side street.2 Leite also saw "a pedestrian that ended up getting

run over too, but she . . . just got right up [and] [s]he looked

like she was fine." Leite did not know whether the pedestrian

was injured because the pedestrian "just kept on walking" and

left the scene. Leite was also unsure whether the vehicle

2 Leite testified that the entire parking lot was gated by a
fence.

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struck the pedestrian before striking the fence, or if the

vehicle caused the fence to strike the pedestrian. Leite

testified that after the vehicle hit the fence, the vehicle

backed up and was then facing Penniman Street. Leite testified

that the driver, later identified as the defendant, exited the

car. Leite eventually approached the defendant and asked him if

he was okay and whether it was okay for her to call 911, to

which the defendant responded yes. When Leite was speaking on

the phone with 911, she observed the defendant get back into his

vehicle, exit the parking lot, and drive down Penniman Street

where he proceeded to collide with multiple parked cars.

When police arrived at the scene, Officer James Ryan (Ryan)

found the defendant in his vehicle which was "partially on the

sidewalk and the street against the building of 27 Penniman

[Street]." Ryan testified that the defendant was unable to get

out of his vehicle without assistance, was unsteady on his feet,

and that both the vehicle and the defendant's person smelled

like alcohol. Ryan also stated that the defendant seemed

confused, his eyes were bloodshot and glossy, and his speech was

slurred. Id. Shortly after helping the defendant exit his

vehicle, Ryan placed him under arrest and transported him to the

police station for booking. Id.

The defendant, who testified in his own defense at trial,

recalled his version of the events of the evening of November

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20, 2020, which began when he was driving home from work in Fall

River to his home in New Bedford. He testified:

"So I have an ear pod in and with the ear pod, one, it
tells me GPS, because I don't know where I'm going.
You know, so, one, when I noticed I didn't have one in
my ear, so I had none, I tend to panic a bit and --
because I don't know where I'm going. My phone is
off, and I can't call nobody. I don't have wifi, so I
panicked a bit, and when I noticed it wasn't in, I
didn't know what was going on and that's the last
thing I remember."

That testimony notwithstanding, the defendant did testify

that he remembered being detained at the police station

following his arrest.3 At trial, the Commonwealth moved to admit

a booking video taken at the police station that depicted the

defendant yelling to police officers, failing to respond to

questions, and swaying as he stood. The defendant's trial

counsel elected not to view the video when given the opportunity

to do so by the trial judge, and, after some discussion, stated

she had "[n]o objection at all" to its admission, reasoning that

"it's not about my client being impaired. It's about the cause

of impairment." The defendant's trial counsel also did not

object to the admission of medical records of a pedestrian who

visited the hospital after she was purportedly struck by either

the fence or the defendant's vehicle.

3 Notably, the defendant did not testify that he consumed or
was ever in the presence of alcohol on the evening of November
20, 2020.

4
Finally, the trial judge permitted the defendant's expert

witness, Dr. Mark Friedman (Dr. Friedman), to testify that the

defendant's behavior and symptoms on the evening of November 20,

2020, were consistent with a seizure disorder. However, the

trial judge did not permit Dr. Friedman to testify to his

opinion about the direct cause of the crashes.

Discussion. 1. Sufficiency of the evidence. The

defendant argues that the evidence was insufficient to convict

him of leaving the scene of personal injury because the

Commonwealth failed to prove beyond a reasonable doubt that he

knowingly collided with or injured another person when he was

operating his vehicle on the night of November 20, 2020. On

this record, we agree.

When reviewing claims of insufficient evidence presented at

trial, "we assess the evidence in the light most favorable to

the Commonwealth 'to determine whether any rational trier of

fact could have found each element of the crime beyond a

reasonable doubt.'" Commonwealth v. Baez, 494 Mass. 396, 400

(2024), quoting Commonwealth v. Robinson, 493 Mass. 303, 307

(2024). "The evidence may be direct or circumstantial, and we

draw all reasonable inferences in favor of the Commonwealth"

(quotations and citations omitted). Baez, supra.

To prove leaving the scene causing personal injury, the

Commonwealth must show that that the defendant (1) operated a

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motor vehicle; (2) on a public way; (3) knowingly collided with

or otherwise caused injury to another person; and (4) went away

without stopping or making known his name, address, and the

registration number of his vehicle. See G. L. c. 90, § 24 (2)

(a 1/2) (1); Commonwealth v. Muir, 84 Mass. App. Ct. 635, 638

(2013). See Commonwealth v. Rijo, 98 Mass. App. Ct. 871, 875

(2020) (finding "knowingly" modifies both collided with and

caused injury). Knowledge of a collision "requires the

Commonwealth to prove that the defendant knew he collided with a

person 'or otherwise' caused injury to a person." Commonwealth

v. Daley, 463 Mass. 620, 626 (2012) (emphasis added).4

Therefore, to prove the element of knowledge, the Commonwealth

had to prove that the defendant either (1) knowingly collided

with the pedestrian or (2) knowingly caused injury to the

pedestrian. Id. Here, the Commonwealth has failed to do so in

either respect.

The Commonwealth offers no direct evidence regarding how

precisely the pedestrian ended up on the ground. For example,

Leite, the only eyewitness to at least some of the accident,

testified that after hearing a loud bang she saw the vehicle

4 While the decision in Daley, 463 Mass. at 626, interpreted
G. L. c. 90, § 24 (2) (a 1/2) (2), which criminalizes leaving
the scene of an accident resulting in death, the decision
applies with equal force to G. L. c. 90, § 24 (2) (a 1/2) (1),
as the applicable statutory language is identical.

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move forward from its position in the parking lot, crash into

the fence, and "also saw like a pedestrian that ended up getting

run over too." However, she was "not sure what like got hit

first, if it was the fence or like the fence hit the

pedestrian."5

More importantly, there was no evidence from which a jury

could reasonably infer that the defendant knew that he collided

with or caused injury to the pedestrian. The events occurred at

night. Leite testified that after the pedestrian was struck by

either the fence or the defendant's vehicle she immediately got

up and "just kept walking." Leite did not testify that she told

the defendant that he hit the pedestrian or that he said he knew

he hit the pedestrian. There was no evidence that the defendant

ever saw the pedestrian. Therefore, given the nature of the

accident, the pedestrian's actions in getting right up and

walking away, and the observation by the witness that the

pedestrian "looked like she was fine" after she was hit, it

cannot be reasonably inferred that the defendant knew -- either

that he had collided with the pedestrian or that she was

injured. See Rijo, 98 Mass. App. Ct. at 873-874.

5 Leite's testimony, although not entirely clear, seems to
suggest that the pedestrian was walking by the parking lot,
presumably on the sidewalk or street on other side of the fence
line, when the defendant struck her or the fence.

7
Accordingly, the evidence presented at trial, when viewed

in the light most favorable to the Commonwealth, was

insufficient to conclude beyond a reasonable doubt that the

defendant knowingly collided with or caused injury to the

pedestrian. Baez, 494 Mass. at 400; Daley, 463 Mass. at 626.

As such, the defendant's conviction as to Count II shall be

reversed.

2. Expert testimony. The defendant also contends that the

trial judge committed reversible error by improperly limiting

Dr. Friedman's testimony by not permitting him to testify that

the accident was caused by the defendant suffering a seizure.

The argument is unavailing.

Before trial, the parties argued the defendant's motion in

limine concerning, inter alia, whether Dr. Friedman should be

permitted to testify as a medical expert and whether his expert

report should be admitted.6 After hearing these arguments, the

6 During the motion argument, the defendant's trial counsel
stated that she expected Dr. Friedman to testify that, based
upon a review of the defendant's medical records and Dr.
Friedman's evaluation of the defendant by telephone, the
defendant suffers from a seizure disorder which caused the
accident. The Commonwealth argued that Dr. Friedman's testimony
and his expert report were irrelevant because they were based
upon a limited sample of outdated medical records and a singular
telephonic medical evaluation. The Commonwealth also argued
that the conclusion in Dr. Friedman's report that the cause of
the accident was due to a seizure disorder should be reserved
for the trier of fact.

8
trial judge concluded that Dr. Friedman's report would not be

admitted, but that he could be called as an expert witness. The

trial judge did not rule on the permissible scope of Dr.

Friedman's testimony at that time. At trial, the trial judge

permitted Dr. Friedman to testify that the defendant's symptoms

were consistent with a seizure disorder but stopped him from

testifying that a seizure caused the accident, stating that he

could not "give an opinion as to the cause of the accident."

Because the defendant's trial counsel failed to object, our

review is limited to whether the alleged error created a

substantial risk of miscarriage of justice. Commonwealth v.

Robinson, 480 Mass. 146, 147 (2018). In concluding that a

miscarriage of justice did not result, we note that "[w]here

testimony approaches an ultimate issue of guilt, 'the probative

value of the opinion must be weighed against the danger of

unfair prejudice.'" Commonwealth v. Goddard, 476 Mass. 443,

446-447 (2017), quoting Commonwealth v. Canty, 466 Mass. 535,

544 (2013).

Here, the danger of unfair prejudice arising from Dr.

Friedman's anticipated testimony that the crash was caused by

the defendant suffering a seizure was high because it goes

directly to the defendant's guilt or innocence. Goddard, 476

Mass. at 447. Conversely, the probative value of Dr. Friedman's

opinion as to the cause of the accident was weakened by the fact

9
that Dr. Friedman had only reviewed medical records from when

the defendant was a minor, none of which revealed that the

defendant had a seizure disorder, and the fact the Dr.

Friedman's only communication with the defendant was during a

single evaluation over the telephone. Accordingly, the trial

judge did not err in limiting Dr. Friedman's testimony.

3. Ineffective Assistance of Counsel. The defendant

further asserts that his trial counsel was ineffective because

she failed to review his booking video or cause Dr. Friedman to

view the video to aid his testimony before consenting to its

admission at trial.7 We are not persuaded.

Counsel is ineffective when "(1)'there has been serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinarily fallible lawyer'; and (2) as a

result, the defendant was 'likely deprived . . . of an otherwise

available, substantial ground of defence.'" Commonwealth v.

Henley, 488 Mass. 95, 134 (2021), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). The burden of proving an

7 The defendant also asserts that his trial counsel's
failure to object to the admission of the pedestrian's medical
records amounted to ineffective assistance of counsel. While we
question the force of this argument given the wide discretion
afforded judges as the gatekeeper of the evidence, Commonwealth
v. Meola, 95 Mass. App. Ct. 303, 308-309 (2019), because his
conviction as to Count II is reversed, we need not address it.

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ineffective assistance claim is on the defendant. Commonwealth

v. Montez, 450 Mass. 736, 755 (2008).

When the ineffective assistance claim is "based on a

tactical or strategic decision, the test is whether the decision

was 'manifestly unreasonable' when made." Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v.

Acevedo, 446 Mass. 435, 442 (2006). Manifestly unreasonable

decisions refer only to "strategy and tactics which lawyers of

ordinary training and skill in the criminal law would not

consider competent." Kolenovic, supra, quoting Commonwealth v.

Pillai, 445 Mass. 175, 186-187 (2005).

Although the defendant's trial counsel did not elect to

view the booking video after being given the opportunity to do

so, her decision to consent to its admission was strategic.

Counsel's strategy was dictated on the record when she stated

that she had "[n]o objection at all" to the admission of the

booking video because the defendant's defense is "not about my

client being impaired. It's about the cause of impairment."8

8 When the Commonwealth sought to introduce the booking
video, the defendant's trial counsel initially objected stating
she "was not provided with this booking video" and "would very
much like [her] expert witness to have the opportunity to
testify (indiscernible) the content." However, she then
declined the trial judge's offer to review the video and
withdrew her objection because the video did not speak to the
cause of the defendant's impairment.

11
Therefore, because the central dispute at trial was the root of

the defendant's impairment, the defendant's trial counsel

evidently thought that the introduction of video evidence

displaying the defendant in an impaired state was

inconsequential. We conclude that, while the better practice

would have been for the defendant's trial counsel to view the

booking video, we cannot say it was "manifestly unreasonable"

for the defendant's trial counsel to fail to object to its

admission in light of the defendant's overall defense strategy.

Kolenovic, 471 Mass. at 674. Furthermore, while Dr. Friedman

was not given the opportunity to review the video to aid his

testimony, we are unconvinced that Dr. Friedman's failure to

view the video deprived the defendant of a "substantial ground

of defence," or that the video would have bolstered Dr.

Friedman's testimony in any meaningful way (citation omitted).9

Henley, 488 Mass. at 134. As such, the defendant's trial

counsel was not ineffective.

For the foregoing reasons, we reverse the judgment of

conviction on count II, the finding is set aside, and judgment

9 The defendant did not submit an affidavit from Dr.
Friedman that viewing the video would have aided his testimony.

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shall enter for the defendant on count II. The judgments on

counts I and V are affirmed.

So ordered.

By the Court (Henry,
Desmond & Englander, JJ.10),

Clerk

Entered: April 3, 2025.

10 The panelists are listed in order of seniority.

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