MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On August 24, 2016, the tractor trailer truck that the defendant was driving went through a red light at an intersection in Pittsfield and crashed into a pickup truck. The driver of the pickup truck died as a result of injuries sustained in the accident, and the defendant was charged with motor vehicle homicide by negligent operation. Following a jury-waived trial, a District Court judge found the defendant guilty as charged.
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On appeal, the defendant asserts error in certain testimony that a Commonwealth witness provided about the brakes of the truck that the defendant was driving. We affirm.
Background. Three eyewitnesses to the accident testified. One of them described the truck as “flying through the intersection” at a speed estimated at thirty-five or forty miles per hour. That witness testified that he did not hear any braking, the blowing of a horn, or skidding. Another estimated the trucks speed at thirty miles per hour and testified that he did not observe the truck “ever hit its brakes.” The remaining eyewitness testified that she did not observe the truck “to be skidding out of control or anything of that nature,” and did not hear a horn or other noises coming from the truck. The eyewitnesses did not see the driver of the vehicle (the defendant) gesticulate with his hands or otherwise make “frantic movements.” In fact, two of the witnesses stated that the defendants head was looking down when he was going through the intersection.
The defendant was questioned at the scene by police about the cause of the accident. He admitted that he went through the red light, while suggesting that he had not seen the light change because he had been distracted by “a woman walking her dog on the side of the road.” He mentioned nothing to the police about any mechanical problem with the truck, such as a malfunction of the trucks braking system.
This appeal concerns the testimony of Robert Szczepaniak, who was called to the scene of the accident to tow away the defendants truck. As substantiated at trial, Szczepaniak had extensive training and experience with respect to tractor trailers and other large trucks, including their braking systems.
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As Szczepaniak explained, trucks of the kind that the defendant was driving, commonly have braking systems that rely on compressed air. When the engine of the truck is running, a compressor charges the system with compressed air that is stored in a reservoir system. If the air pressure in the reservoir system falls below a particular threshold (in the range of forty to sixty pounds per square inch [psi]), the trucks parking brakes automatically engage, but the trucks main brakes -- known as “service brakes” -- will not operate. Above that threshold, the parking brakes will release and the operator will be able to engage the service brakes.
Szczepaniak explained that some leakage in a trucks air reservoir system is “very common,” and can be found even in new vehicles. As a result, “most of the time the truck will deplete its air resource[s] when its off.” Absent a major leak in the reservoir system, however, the air system will recharge when the truck is turned on again.
At the scene of the accident, Szczepaniak made various observations regarding the state of the trucks braking system. By the time he gained access to the truck, it had sat at the scene “for quite a while.”
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Nevertheless, when he engaged the trucks service brakes, he noticed that there was still enough air pressure in the system to release the trucks parking brakes. He pushed the brake pedal, the air depleted from the system, thereby engaging the parking brakes. According to Szczepaniak, this indicated that some air had leaked out of the system while the truck had been sitting, but that this was only a “small leak” given that there still was sufficient air pressure to keep the parking brake engaged at the point that he started working the brake pedal.
Because of damage that the truck sustained in the accident, it could not be restarted. This meant that to tow the vehicle with the parking brakes released, Szczepaniak had to connect the tractor trailers reservoirs to the tow trucks air system. Once he did so, the system became pressurized again. At that point, Szczepaniak walked around the vehicle to listen for the sound of air leaks; he stated he would have heard this had there been a significant leak in the system.
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He heard none, which corroborated his belief that the leak was a small one. Then, while repositioning the truck for towing, Szczepaniak engaged the trucks service brakes to assist in that process. Based on how the brakes functioned when engaged, and the absence of any detected major leaks in the reservoir system, Szczepaniak concluded that despite the presence of a small leak in the trucks reservoir system, that leak “did not affect the service braking.”
Once Szczepaniak brought the truck back to his tow yard, he briefly inspected it for the limited purpose of determining whether it was worth salvaging. This review was not a full State or Federal safety inspection; the prosecutor himself referred to this as a “cursory inspection” during his opening statement. As part of this examination of the truck, Szczepaniak conducted a “visual inspection of the braking system to be sure whether it needed to be included in the repair quote that was required.” Szczepaniak acknowledged that he did not inspect the brake pads or drums, while adding that there was no reason to do so because “[t]hey were functioning” when he used them to reposition the truck at the scene.
Throughout the trial, defense counsel highlighted inadequacies in the police investigation, especially with regard to the Commonwealths failure to preserve the truck so that it could be fully inspected. In addition, the defendant presented an accident reconstruction expert who testified to his opinion that the real cause of the accident was not the defendants negligence but a mechanical problem with the trucks brakes. He based his opinion that the brakes were faulty on the intermittent pattern of skid marks shown in photographs of the accident scene, and on Szczepaniaks report of an air leak in the trucks reservoir system. The defendants expert also testified to his opinions that the truck the defendant was driving was going less than eight miles per hour when it hit the victims truck, and that the defendant would have been able to avoid the collision had his brakes been working.
The Commonwealth was allowed to call a rebuttal accident reconstruction expert to counter the defendants experts opinions. The rebuttal expert opined that the intermittent skid marks were attributable to an attempt to stop after impact. Specifically, he stated that the skid marks began just before the point of collision and continued thereafter, with their unusual pattern “indicating post-impact braking” (which the expert referred to as “bounce”). He also pointed to alleged errors in the defense experts calculations as to how fast the tractor trailer truck was going at impact.
Discussion. Szczepaniak testified both as a percipient witness and as an expert. The defendant challenges his testimony only to the extent that it constitutes expert opinion evidence. Our review of the judges admission of any expert opinion evidence is subject to an abuse of discretion standard. See Commonwealth v. Zeininger, 459 Mass. 775, 790 (2011), quoting Commonwealth v. Seit, 373 Mass. 83, 92 (1977) (“trial judge has broad discretion to decide whether a witness is qualified to testify as an expert, and that decision is ‘rarely upset on appellate review’ ”). See also Commonwealth v. DiCicco, 470 Mass. 720, 729 (2015) (admission of expert testimony reviewable only for abuse of discretion).
After the defendant informed the judge prior to trial that he would object to Szczepaniak testifying as an expert, the judge indicated he would accept Szczepaniaks testimony de bene.
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During the trial, the defendant lodged no motions to strike, and the dispute over the proper bounds of Szczepaniaks testimony therefore was never brought into focus. This omission was particularly problematic here because it was not clear when Szczepaniak was testifying as an expert, what specific testimony the defendant was claiming was objectionable,
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and whether the judge -- after due consideration -- in fact deemed the challenged testimony admissible.
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Nevertheless, for purposes of our review, we will assume arguendo that the defendants pretrial objections preserved the issue. See Commonwealth v. Grady, 474 Mass 715, 719 (2016) (“Going forward, we dispense with any distinction, at the motion in limine stage, between objections based on constitutional grounds and objections based on other grounds. We will no longer require a defendant to object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied”).
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We turn now to the merits, and in conducting that review, assume that the judge deemed admissible all of the testimony that the defendant now seeks to challenge.
The main thrust of Szczepaniaks testimony was as follows: (1) a small air leak in the reservoir of a trucks braking system would not prevent the service brakes from operating safely, (2) the leak in the braking system of this truck was a small one, and (3) despite the leak, the brakes seemed to be working well when Szczepaniak used them to reposition the vehicle.
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Much of that testimony simply was factual testimony that rested on Szczepaniaks own observations. That includes, for example, his key observation that the truck brakes worked fine when he used them to reposition the vehicle for towing. To the extent that Szczepaniak offered opinion testimony, this generally was well within his demonstrated expertise. For example, Szczepaniak plainly had the training and experience to testify that leaks in the air reservoir system of trucks are “very common” and that if such leaks are minor, they do not compromise the safety of the vehicle. Other examples include his testimony that a major leak in the reservoir system would be able to be heard, and that a trucks parking brake would be released only when the pressure in the reservoir system dropped below a threshold in the range of forty to sixty psi.
Szczepaniak affirmatively disavowed expertise that he did not possess, such as expertise in accident reconstruction. Nor did he offer any opinion on how fast the truck had been going at impact, or whether the defendant had attempted to use the brakes before then. To be sure, Szczepaniak did testify that he did not “believe the brakes [had] anything to do with” the collision, and in this manner, he touched on the cause of the accident. However, viewed in context, that testimony was merely a restatement of Szczepaniaks view that the brakes were in working order despite there being a small leak in the reservoir system, a subject that lay within his expertise. We are confident that the judge did not credit Szczepaniak with expertise that he did not possess.
The only instances where Szczepaniak arguably veered into questionable territory were when he gave testimony that, if read literally, could be taken as unqualified conclusions about the conditions of the brakes. For example, on direct examination he was asked, “With respect to when [he was] on the scene, were there any issues with the braking?” to which he responded, “There were not.” Similarly, he testified on cross-examination that “the air brake system with the leak that was in it was functioning properly.” In fact, Szczepaniak was not in a position to suggest with unqualified breadth that the trucks braking system was in full working order. That is because it is uncontested that when Szczepaniak observed the tractor trailer trucks brakes working properly, they were connected to the air compressor in the tow truck; Szczepaniak never tested, or used, the compressor in the truck that the defendant had been driving. But the limitations of Szczepaniaks conclusions were apparent on the face of his testimony, thereby providing defense counsel significant fodder for cross-examination and closing argument. The issues that the defendant raises about Szczepaniaks testimony go to the weight to be assigned to that testimony by the judge as fact finder, not to the threshold question of the testimonys admissibility. See generally Commonwealth v. Hinds, 487 Mass. 212, 224-225 (2021) (distinguishing between threshold determination of admissibility of expert opinion by judge as gatekeeper and ultimate role of fact finder whether to credit such evidence).
The defendant additionally argues that the Commonwealth failed to establish the reliability of Szczepaniaks methods, which relied on personal observations informed by his training and experience. See Canavans Case, 432 Mass. 304, 313-314 (2000), citing Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (“even though personal observations are not excepted from Lanigan analysis, in many cases personal observation will be a reliable methodology to justify an experts conclusion”). We are unpersuaded. In fact, as noted, Szczepaniaks principal observation -- that the trucks service brake was working properly when he used it -- amounted to lay testimony that did not require a Lanigan analysis. To the extent that Szczepaniak provided expert opinion testimony that the judge deemed admissible, we discern no abuse of discretion in the judges implicit determination that the witness relied on methods that were sufficiently reliable. To the extent that the defendant is suggesting that Szczepaniak could not testify about whether there was a problem with the brakes unless he had expertise in accident reconstruction or had determined the specific air pressure that had been in the reservoir system, we similarly are unpersuaded.
Because we find insufficient merit in the arguments that the defendant has made on appeal, we affirm the judgment.
So ordered.
affirmed
FOOTNOTES
2
. The judge also found the defendant guilty of operating a motor vehicle without a license. That guilty finding was placed on file with the defendants consent, and no issues related to it are subject to this appeal. A finding that the defendant committed a civil infraction also was placed on file.
3
. Szczepaniak made a living towing, inspecting, and repairing tractor trailers and other heavy-duty vehicles. He estimated that he had performed “thousands” of inspections over the years and had made “thousands” of repairs to truck braking systems. In addition to his commercial drivers license, Szczepaniak was licensed to perform both State and Federal inspections of trucks, which required him to be certified every two years. He also had taught others seeking their own vehicle inspection licenses and certified them.
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. Once he arrived at the scene, Szczepaniak had to wait while the victim was extracted from his vehicle. The record indicates that it took the police approximately an hour and one-half “to clear the intersection.”
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. Szczepaniak explained that he was particularly attentive to whether there was a major leak in the trucks reservoir system, because this could have rendered his tow trucks braking system inoperable.
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. Specifically, the judge noted that he would “allow the defense to cross. And then if for whatever reason after argument [the judge finds] the witness is not qualified, [the judge would] strike whatever portion of [the witnesss] testimony [that] would revolve around [expert opinion] and not consider it in this case.”
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. Even on appeal, the defendant has not identified with any precision what specific testimony he thinks was inadmissible.
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. There was one exception. When Szczepaniak testified that air leaks were very common in this type of truck, defense counsel renewed his pretrial objection regarding the witnesss expertise. The judge expressly overruled that objection, explaining that he believed that the foundational requirements had been met. Therefore, we know that the defendant was objecting to the testimony about how common such leaks were and that the judge ultimately deemed such testimony admissible. The particular testimony being challenged by this objection was plainly within Szczepaniaks demonstrated expertise. The defendant did renew his objection at one other point during the trial: in response to Szczepaniaks testimony that he did not “believe the brakes [had] anything to do with” the collision, defense counsel asked the judge to “[p]reserve [his] objection with respect to that final opinion.” The judge did not comment on or otherwise respond to that objection.
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. At least prior to Grady, where evidence was taken de bene, an initial objection did not preserve the issue; it was the defendants obligation to move to strike such evidence after it had been admitted and its admissibility could be fully assessed. See Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 355-356 (2013). We assume, without deciding, that this rule does not apply after Grady.
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. In an interview provided some time after the accident, Szczepaniak notified police that there was a leak in the system. The principal role that he served as a witness was to explain how the leak that he identified ultimately was inconsequential. In other words, Szczepaniak was called to address the potential exculpatory value of what he had brought to the attention of the police.