Commonwealth v. Martin

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19-P-1521 Appeals Court

COMMONWEALTH vs. TARA MARTIN.

No. 19-P-1521.

Essex. September 17, 2020. - October 29, 2020.

Present: Green, C.J., Milkey, & Wendlandt, JJ.

Motor Vehicle, Leaving scene of accident, Investigation of
accident, Operating under the influence. Constitutional
Law, Equal protection of laws. Evidence, Expert opinion,
Qualification of expert witness. Words, "Caretaker."

Complaints received and sworn to in the Lynn Division of
the District Court Department on October 30 and November 7,
2017.

The case was tried before Matthew J. Nestor, J., and a
motion to revise and revoke sentence was heard by him.

Joseph P. Dever for the defendant.
Catherine L. Semel, Assistant District Attorney, for the
Commonwealth.

WENDLANDT, J. Enacted in 2018, as part of the

comprehensive Act Relative to Criminal Justice Reform, the

primary caretaker statute (caretaker statute), G. L. c. 279,

§ 6B, permits a judge to consider a defendant's status as the
2

primary caretaker of a dependent child when sentencing. In this

case, a District Court judge found that the defendant, Tara

Martin, was the primary caretaker of her eight year old son, but

denied the defendant's motion to revise and revoke her sentence

because he concluded, sua sponte, that the caretaker statute

violated the equal protection clause. On appeal, the defendant

contends this was error, and the Commonwealth agrees. Because

the caretaker statute burdens no fundamental right, applies no

suspect classification, and is rationally related to the

Commonwealth's legitimate interest in the care and protection of

children, we agree. Concluding that the defendant's other

challenges lack merit, we remand for reconsideration of the

defendant's motion.

Background. On October 27, 2017, just after 7 P.M., the

victim, Susan Testa, was found lying on the ground next to her

vehicle on the dead-end street just outside her home in a

thickly-settled residential neighborhood. Blood oozed from her

head and hand; there was blood and debris on the ground on the

driver's side of Testa's vehicle, strands of Testa's hair hung

from the driver's side mirror, which was cracked and pushed

forward, and the body of the vehicle had sustained damage,

including a dent and scratches on the driver's side. Testa's

last memory was seeing headlights coming around the corner, as

she leaned against her vehicle.
3

Immediately after responding to the scene and approximately

one-quarter mile away, on a street just off the one where Testa

had lain injured, police officers found the defendant's vehicle

parked "in an odd manner" far away from the curb adjacent to the

defendant's home. The vehicle was still warm, as if recently

driven; it was dented and scratched on the passenger's side.

The gas cap door was ajar. Blood, later determined to be from

Testa, also was found on the vehicle. The defendant, who was

"slightly unsteady on her feet," came outside to speak with the

officers who were examining her vehicle. The officers asked if

she had been out that evening, to which she responded, "Yes. Is

everyone okay?" The defendant reported that she had been out at

a social hall, where she had consumed two beers, and she had

arrived home "not too long" before the officers arrived.

Trooper David Bergeron of the Massachusetts State Police

collision analysis and reconstruction section assessed the scene

and inspected both Testa's and the defendant's vehicles. He

observed the layout of the neighborhood, as well as road and

lighting conditions as part of his collision investigation and

reconstruction analysis.1 He created a computer-based forensic

1 On cross-examination, Bergeron acknowledged that he did
not use several other tools and methodologies that he had
employed in connection with other accident reconstructions.
4

map based on his measurements at the scene. Later, he drove the

defendant's vehicle, concluding that it was operating normally.

Following a jury trial, the defendant was convicted of

leaving the scene of property damage (leaving the scene). G. L.

c. 90, § 24 (2) (a). She was acquitted of negligent operation

of a motor vehicle under the influence of intoxicating liquor

causing serious bodily injury (OUI-SBI). G. L. c. 90,

§ 24L (1).2 The judge sentenced the defendant to "[t]wo years,

six months to serve, balance suspended for two years. No

driving during the period of the suspended sentence."

Eleven days later, the defendant filed a motion to revise

and revoke sentence, seeking consideration of her primary

caretaker status under the caretaker statute. See Mass. R.

Crim. P. 29, as appearing in 474 Mass. 1503 (2016). Following a

hearing, the judge found that the defendant was the primary

caretaker of her eight year old son. However, he determined,

sua sponte, that the caretaker statute violated the

constitutional guarantee of equal protection, stating, "if you

have a child, you don't go to jail. But if you don't have a

child, you do go to jail." He denied the motion, but stayed the

defendant's sentence pending appeal.

2 Charges of operating under the influence of liquor and
negligent operation of a motor vehicle were dismissed before
trial.
5

Discussion. 1. Caretaker statute. The caretaker statute,

G. L. c. 279, § 6B (b), provides:

"Unless a sentence of incarceration is required by law, the
court may, upon conviction, consider the defendant's status
as a primary caretaker of a dependent child before imposing
a sentence."

We agree with the defendant and the Commonwealth that the

caretaker statute does not violate equal protection. The

caretaker statute neither burdens a fundamental right3 nor

employs a suspect classification;4 accordingly, our equal

protection analysis is governed by the rational basis test

pursuant to which a statute is constitutional so long as it is

rationally related to a legitimate State interest. See

Goodridge v. Department of Pub. Health, 440 Mass. 309, 330

(2003).

There can be no dispute that the Commonwealth has a

legitimate "interest in protecting the well-being of children."

3 "Fundamental rights generally are those that stem
explicitly from or are implicitly guaranteed by the
Constitution." LaCava v. Lucander, 58 Mass. App. Ct. 527, 533
(2003). Although related to childrearing, the caretaker statute
does not burden the fundamental right to custody or control over
one's child. See Youmans v. Ramos, 429 Mass. 774, 784 (1999)
("The liberty interest of a parent in his relationship with his
child is fundamental").

4 The caretaker statute makes no distinction based on sex,
"race, religion, alienage, national origin and ancestry, [or]
certain quasi suspect classes, based on gender and [marital
status of one's parents]." LaCava, 58 Mass. App. Ct. at 532.
See Commonwealth v. King, 374 Mass. 5, 20-21 (1977).
6

Matter of McCauley, 409 Mass. 134, 137 (1991). See Prince v.

Massachusetts, 321 U.S. 158, 166 (1944) ("[S]tate as parens

patriae" has a legitimate and compelling interest in "youth's

well being"); Custody of a Minor, 375 Mass. 733, 737 (1978),

quoting Wisconsin v. Yoder, 406 U.S. 205, 234 (1972)

(recognizing State's interest in "health or safety" of

children). Nor can there be any serious doubt but that

dependent children can be negatively impacted by the

incarceration of their primary caretakers. See generally Myers,

Smarsh, Amlund-Hagen & Kennon, Children of Incarcerated Mothers,

8 J. Child & Fam. Stud. 11, 11 (1999) ("Children whose mothers

are in prison or jail are among the riskiest of the high risk

children in our nation. These children typically experience

poverty, school problems, repeated shifting of households and

caregivers, and the pain and disruption that accompany

separation from the mother" [citations omitted]); Moretti &

Peled, Adolescent-Parent Attachment: Bonds That Support Healthy

Development, 9 Paediatrics & Child Health 551, 552-553 (2004)

(discussing damaging effects to children where parent becomes

unavailable). We have no trouble concluding that the caretaker

statute (which permits a judge, when imposing a sentence, to

examine whether a defendant is a primary caretaker for a

dependent child and to consider sentencing alternatives to

incarceration) is rationally related to that interest.
7

Accordingly, the caretaker statute passes muster under the

rational basis test. See Goodridge, 440 Mass. at 330.

2. Sentencing. The defendant next contends that the judge

sentenced her based on acquitted conduct, the OUI-SBI charge.5

While "a sentencing judge may not undertake to punish the

defendant for any conduct other than that for which the

defendant stands convicted in the particular case," Commonwealth

v. LeBlanc, 370 Mass. 217, 221 (1976), the judge here made no

intimation that he was punishing the defendant for acquitted

conduct. To the contrary, the judge stated,

"There's not a chance in the world that I'm going to
sentence her for OUI when the jury found her not
guilty. . . . I want the record to be crystal clear. I'm
not considering in any way, shape or form the fact that she
was operating under the influence because as a matter of
law now she wasn't."6

5 The defendant grounds her argument in the statement of the
prosecutor that, "given the facts of this case, the nature of
the property damage and what it entailed," probation alone would
be inappropriate.

6 The defendant also has not met her heavy burden to show
that the sentence, which fell within the statutory limit (and
reduced her committed time to six months), was cruel and
unusual. See Cepulonis v. Commonwealth, 384 Mass. 495, 497
(1981), quoting Commonwealth v. Jackson, 369 Mass. 904, 910
(1976) ("punishment must be so disproportionate to the crime
that it 'shocks the conscience and offends fundamental notions
of human dignity'"). See also Harding v. Commonwealth, 283
Mass. 369, 374 (1933) (sentence constitutional where it imposed
"[n]o greater aggregate sentence . . . than was authorized" by
Legislature).
8

On this record, we cannot reasonably conclude that the judge

sentenced the defendant based on conduct for which she was

acquitted.

3. Admissibility of expert testimony. On appeal, the

defendant presses her preserved objection to Bergeron's opinion

that "a reasonable motorist traveling through the neighborhood,

[with a] high expectation that someone could be there, would

have adjusted their driving behavior and [would] have been able

to avoid this collision." Specifically, the defendant argues

that Bergeron's testimony neither was based on any specialized

knowledge and training nor developed through use of specialized

tools. Judges have "broad discretion" (quotation omitted) in

assessing expert testimony reliability, and to admit it where

"'specialized knowledge would be helpful' to the jury."

Commonwealth v. Holley, 476 Mass. 114, 125 (2016), quoting

Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011).

Bergeron's training and experience were discussed in detail on

direct examination.7 He testified as to his investigative

process. He examined the physical evidence by conducting a

7 In addition to his training, Bergeron testified that he
had analyzed approximately one hundred collisions during his
tenure as a State trooper. The defendant did not object to
Bergeron's qualifications as an accident investigation and
reconstruction expert, and (to the extent the defendant
challenges those qualifications for the first time on appeal) we
discern no error. See Commonwealth v. Fritz, 472 Mass. 341, 349
(2015).
9

walk-through of the scene. He conducted forensic mapping using

surveying equipment and created a computer-based diagram of the

accident scene. Bergeron explained his observations of the

lighting conditions and other cars parked on the thickly-settled

street the evening of the accident. He testified as to the

speed limit on the road, and his observations that there were no

defective road conditions that could have contributed to the

accident. Following the accident, Bergeron tested the

defendant's vehicle, which appeared to be functioning normally.

On this record, the judge did not abuse his discretion in

permitting the testimony.

Even assuming, arguendo, that Bergeron's testimony was

erroneously admitted, it was not prejudicial. The testimony

related to the negligence element of the OUI-SBI charge, of

which the defendant was acquitted. See Commonwealth v. Duffy,

62 Mass. App. Ct. 921, 923 (2004) (no prejudice where evidence

erroneously admitted most directly related to acquitted

conduct).8

4. Sufficiency of evidence. The defendant also challenges

the sufficiency of the evidence that she knew she caused damage

8 Contrary to the defendant's contention, the judge was not
required to instruct the jury regarding Bergeron's failure to
conduct certain tests during his investigation. See
Commonwealth v. Williams, 439 Mass. 678, 687 (2003).
10

to Testa's vehicle, an element of the crime of leaving the

scene.9 Viewed in the light most favorable to the Commonwealth,

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the

evidence permitted the jury to find the requisite knowledge.

Testa's injuries, the considerable damage on the driver's side

of Testa's vehicle, Testa's hair found on the cracked and

displaced driver's side mirror, the debris (including cracked

coffee mug and cell phone) on the ground where Testa was found

lying, the damage on the passenger's side of the defendant's

vehicle, and Testa's blood on the defendant's vehicle were

consistent with a collision. No stretch of the imagination is

required to infer that the impact that caused this degree of

damage resulted in noise and physical jostling of the vehicles.

Moreover, the defendant's vehicle was found, parked in an odd

manner in front of her home just a short while after the

accident. When officers were examining her car, the defendant

asked, "Is everyone okay?" Together, this evidence would permit

the jury to infer reasonably that the defendant knew that she

had caused damage to property.

9 To support the conviction for leaving the scene, the
Commonwealth had to prove beyond a reasonable doubt that the
defendant, (1) while operating a motor vehicle on a public way,
(2) caused damage to another person's property, and (3) knowing
she caused such damage, (4) did not stop and make known her
"name, residence and the register number of [her] motor
vehicle." G. L. c. 90, § 24 (2) (a).
11

Conclusion. The judgment is affirmed.10 We remand for

reconsideration of the defendant's motion to revise and revoke

consistent with this opinion.11

So ordered.

10To the extent the defendant's other arguments have not
been explicitly addressed, "they 'have not been overlooked. We
find nothing in them that requires discussion.'" Commonwealth
v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).

11On remand, the judge is instructed to make written
findings as required by the caretaker statute. G. L. c. 279,
§ 6B (b).