Gunshot victim's reckless driving conviction overturned

By Globe Staff

The state Appeals Court has overturned the reckless driving conviction of a man who tried to drive himself to the hospital with a gunshot wound to his stomach after a shooting in 2005 at a community center in Boston's Roslindale neighborhood.

The court said that Delano Livington's lawyer should have asked the judge to instruct the jury on the "necessity defense" -- essentially, that Livington needed to drive recklessly because he was rushing to get treatment for his wound.

Livington, 32, and several friends were visiting the Archdale Community Center March 15, 2005, when someone began shooting, according to evidence at the trial. Livington was wounded in the stomach. Livington allegedly drove for about 30 seconds on the wrong side of Washington Street at a high rate of speed before pulling into a gas station and falling out of the car.

Livington also faced gun charges after a loaded handgun was found in his car. But a West Roxbury District Court jury acquitted him of charges of carrying a firearm without a license and possession of ammunition without a license.

The jury convicted Livington of reckless driving, but he appealed, arguing, among other things, that his lawyer should have raised the necessity defense. That defense can be used when a crime is committed under the pressure of imminent danger and the harm the defendant seeks to avoid far exceeds the harm from the crime, the court said.

"Here, the risk of harm posed by the gunshot wound to defendant's abdomen outweighed the harm posed by his having briefly driven on the wrong side of the road to reach a location where he could obtain assistance," a three-judge panel of the court said in the decision written by Justice Elspeth B. Cypher.

"The Appeals Court found that the evidence we introduced was sufficient ... and really faulted the defense counsel," said Suffolk district attorney's spokesman Jake Wark. "We are prepared to retry the case."

• Comment
• Permalink
• Email