COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss. SUPERIOR COURT INDICTMENT NO. 11-339 COMMONWEALTH, Ys DANIEL LEARY DEFENDANT. MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO REDUCE VERDICT Defendant Daniel Leary has moved for a reduction of the verdict against him for motor vehicle homicide of David Laduzenski by negligent operation and under the influence of alcohol, a felony, to the lesser included offense of motor vehicle homicide by negligent operation, a misdemeanor, pursuant to G. L.c. 278, § 11, and Mass.RCiv.P. 25 (b) (2).1 As grounds, defendant submits it was error for the trial judge not to instruct the jury on the lesser included offense of motor vehicle homicide by negligent oper- ation, At trial, the Commonwealth had requested that such instruction be given, ar- guing that the instruction was required, but defense counsel objected to it. The Commonwealth concedes it was error for the judge not to give the instruction but submits the error was harmless. The Commonwealth further submits that the ver- dict should not be reduced because there was “overwhelming” evidence that de- fendant was under the influence of alcohol at the time of this fatal crash. Ordinarily, this motion would be heard by the trial judge who has recused yourself from further involvement in the case.) DISCUSSION In Commonwealth v, Woodward, 427 Mass. 659, 662-663 (1998) the Supreme Judicial Court held: “We have stated repeatedly that, ‘when the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime’ Commonwealth v. Gould, 413 Mass. 707,715 (1992). See Commonwealth v, Hobbs, 385 Mass, 863, 871 (1982); Common- wealth v. Richmond, 379 Mass. 557, 562 (1980); Commonwealth v. Campbell, 352 Mass. 387, 392 (1967). We have never limited this rule to requests made by the de- fendant, nor have we ever held that the Commonwealth is not entitled, evidence permitting, to such an instruction on request.” ‘The court went on in Woodward to explain: “The doctrine [favoring instructing juries on lesser included offens- es] serves the public purpose of allowing the jury to convict of the offense established by the evidence, rather than forcing them to choose between convicting the defendant of an offense not fully established by the evidence or acquitting, even though the defendant is guilty of some offense. Com- monwealth v. Walker, 426 Mass. 301, 305 (1997) [footnote omitted]. Here, it ‘was peculiarly inappropriate for the judge to refuse to charge the jury on manslaughter when, as revealed by his subsequent order reducing the ju- 1y's verdict, in his view the evidence was not consonant with a conviction of murder. The jury, in reaching their verdict, surely must have concluded that the Commonwealth had proved beyond a reasonable doubt the element of causation ~ that Woodward's acts caused Matthew's fatal injury. By refus- ing to accede to the Commonwealth's request for a manslaughter instruc tion, the judge impermissibly prevented the jury from considering a lesser degree of culpability for Woodward.” 427 Mass, at 664-665. See also Commonwealth v. Matos, 36 Mass. App. Ct. 958, 962 (1994) (defendant does not have absolute right to make tactical decisions that de~ termine which theories of criminal liability are submitted to jury); Commonwealth v.Vasquez, 27 Mass. App. Ct. 655, 660 (1989) (required instruction does not depend on whether defendant or Commonwealth objects, but rather whether evidence sup- ports such instruction). ‘Again, at the hearing, the Commonwealth conceded it was error for the judge not to give the instruction but submits the error was harmless given what the Com- monwealth characterizing the overwhelming evidence the jury had to consider on the issue of intoxication. Pursuant to rule 25 (b) (2), a trial judge has the authority to reduce a verdict, despite the presence of evidence sufficient to support the jury's original verdict, See Woodward, 427 Mass. at 666-667 and cases cited. That power is comparable to the power vested in this court pursuant to G. L. c. 278, § 11, and a trial judge's decision on a rule 25 (b) (2) motion “should be guided by the same considerations.” Com- monwealth v. Gaulden, 383 Mass. 543, 555 (1981). The purpose behind the grant of such power to a judge is "to ensure that the result in every criminal case is conso- nant with justice.” Woodward, supra at 666. See Commonwealth v. Ghee, 414 Mass. 313, 321 (1993); Commonwealth v. Keough, 385 Mass. 314, 320 (1982). "[A] judge should use this power sparingly,” Commonwealth v. Woodward, supra at 667, and not sit as a "second jury.” Keough, supra at 321. An appellate court will not disturb a judge's order reducing a verdict unless the judge abused his scretion or commit- ted an error of law. Woodward, supra at 668, quoting Commonwealth v, Millyan, 399 Mass. 171, 188 (1987).2 A judge's discretion to reduce a verdict pursuant to rule 25 (b) (2) is appro- Priately exercised where the weight of the evidence in the case, although technically Sufficient to support the jury's verdict, points to a lesser crime. Thus, for example, where evidence of premeditation was "slim," the judge did not abuse his discretion in reducing a verdict of murder in the first degree to murder in the second degree. See Commonwealth v. Ghee, 414 Mass. at 322. See Millyan, supra at 188-189 (verdict reduction appropriate where evidence of intoxication undermined theory of delib- erate premeditation). Similarly, where the weight of the evidence suggests that the defendant did not act with malice, a murder verdict may appropriately be reduced to manslaughter. See Woodward, supra at 669-671 & n.14; Commonwealth v. Cobb, 399 Mass. 191, 192 (1987); Keough, supra at 320-321; Gaulden, supra at 557-558; Commonwealth v. Greaves, 27 Mass, App. Ct. 590, 594 (1989). In some cases, weak nesses in the evidence supporting the jury's verdict were coupled with trial error that may have influenced the jury's assessment of the issue. See Woodward, supra at 671 (although evidence suggested that defendant did not act with malice, jury not instructed on manslaughter); Millyan, supra at 188-189 (evidence of intoxication undermined theory of deliberate premeditation, but jury not instructed on issue of impairment due to intoxication). What is not justified, however, is reduction to a lesser verdict that would be inconsistent with the weight of the evidence, or reduction based solely on factors irrelevant to the level of offense proved. See Commonwealth v. Sabetti, 411 Mass, 770, 780-781 (1992) (failure to prove that defendant knew weight of cocaine didoS not justify reduction of verdict of trafficking in cocaine to possession with intent to distribute, because defendant's knowledge of weight irrelevant to offense); Com- monwealth v. Burr, 33 Mass. App. Ct. 637, 640-644 (1992) (error to reduce verdicts of trafficking in cocaine to possession with intent to distribute in absence of evi- dence that quantity of cocaine was below trafficking level). Took, therefore, to determine whether there was some weakness in the evi- dence that Leary committed motor vehicle homicide by negligent operation and un- der the influence of alcohol, a felony, or evidence suggesting that he more likely committed the lesser included offense of motor vehicle homicide by negligent oper- ation, a misdemeanor. If I conclude, “the weight of the evidence is entirely con- sistent with” motor vehicle homicide by negligent operation and under the influence of alcohol, it would be an “abuse of [my] discretion to reduce the verdict solely on factors unrelated to the weight of the evidence.” Commonwealth v. Rolon, 438 Mass. 808, 820-822 (2003). CONCLUSIONS Here, on the record before me, the evidence supporting the jury’s verdict that defendant was guilty of motor vehicle homicide by negligent operation and under the influence of alcohol was hardly “slim.” See Commonwealth v. Ghee, 414 Mass. at 322. To the contrary, 1 cannot disagree with the Commonwealth’s characterization that the evidence that the defendant was under the influence of alcohol was “over- whelming.” See Commonwealth's opposition, page 13.The evidence summarized here is viewed in the light most favorable to the Commonwealth. On the day of the crash, defendant had worked half a day and had returned home around 10 AM. He awoke from a nap around noon and began work- ing on his daughter's bike for motor cross. Defendant testified he was alone for most of the afternoon and did not consume alcohol. The defendant's friend arrived at the house with a thirty pack of beer. The beer was in the friend’s truck, Defendant testi- fied that the friend drank some of the beers at the house but that defendant did not drink any. Around 30 PM, defendant left for the motor cross area with his daugh- ter and his trailer. Defendant testified he consumed no alcohol at the motocross ar- ea. Defendant then ate a dinner. Just before 9 PM, defendant left for the house of his cousin's friend in West Springfield. Defendant drove his friend’s truck there because defendant's truck was attached to his trailer. Defendant “grabbed a couple of beers” from the thirty pack and brought them with him to the house. Defendant drove be- cause his friend “was in no shape to drive” after drinking beers. Thereafter defend- ant walked into the garage of the house with the beers in his hands, He was there for about thirty or forty minutes. Defendant drank the beers but testified he did not re- member whether he finished the second beer. He and his friend left, and defendant drove them toward Southwick. While driving on Dewey Street in West Springfield, defendant's headlights were activated and the streetlights were illuminated. A post- ed sign indicated that the speed limit was 30 mph. Defendant testified he was travel- ing around twenty or 30 mph, and that there “was no traffic.” Weather was not a factor as the roads were dry with no snow or rain. Defendant was familiar with2 these roads and had traveled them “many times,” At around 10:15 PM, the victim walked out of the house on Dewey Street, where he had been attending a social gathering, Defendant struck the victim with the truck. Defendant had been talking to his friend in the truck, and he saw “something come off the side of the road and tried to swerve.” Defendant later stated that someone “jumped out" or “walked out” in front of his vehicle. Defendant swerved toward the right side of the road. He struck the victim on the front passenger side of the truck near the passenger hea ight. The victim was coming from the area of one of the residential driveways on the street and was “going from right to left.” Defendant's swerved in the direction of the vic- tim. Defendant testified that his reason for swerving was because he “saw some- thing coming in the road.” Defendant struck two residential mailboxes during the swerve. Defendant's vehicle “jumped the curb” and drove over a residential lawn. Defendant brought his vehicle to a “controlled stop” about 60 feet down the street from the victim. When defendant stopped, he was not sure whether he had hit someone. Defendant then exited the vehicle. He approached the victim in the road and propped up the victim's head. The victim died of his injuries. After the crash, a police officer spoke with the defendant and “detected a strong odor of alcoholic odor on his breath.” The officer noticed that defendant’s eyes were bloodshot and glassy. When asked what time it was, defendant said 9 PM rather than the actual time of 10:35 PM. The field sobriety tests which defendant agreed to take were performed by him poorly. At the police station, defendant made mistakes when counting and when reciting the alphabet in the manner requested.He could not correctly spell his mother’s maiden name. He also stumbled backward and had difficulty with his balance, At the station, defendant was noted to still have a very strong order of alcoholic beverages on his breath and his eyes remained blood- shot and glassy. Although defendant tes ied that he had consumed only two beers, on the above evidence, the jury was free to disbelieve that testimony. On this record, a reasonable jury could find beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor. Therefore, | cannot conclude that if the trial judge had delivered the lesser included offense instruction, the jury likely would have found defendant guilty only of the lesser offense. Com- monwealth v. Rolon, 438 Mass. at 822. ORDER For all the reasons set forth above, defendant's motion to reduce the verdict is DENIED. ‘J, MeDonough Jr Ristice of the Superior Court Date: /p—t77 5