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-1308
COMMONWEALTH
vs.
GREG MCCOLLUM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury convicted
the defendant of operating a motor vehicle while under the
influence of intoxicating liquor (OUI) pursuant to G. L. c. 90,
§ 24 (1) (a) (1), and negligent operation of a motor vehicle
pursuant to G. L. c. 90, § 24 (2) (a). After waiving his right
to a jury trial on so much of the OUI charge alleging a second
offense, the defendant was convicted on the second or subsequent
portion of the OUI charge. The defendant appeals. We vacate
the judgments and set the verdicts and subsequent offense
finding aside.
Background. We summarize the undisputed facts. At
approximately 4:15 P.M. on August 10, 2018, the defendant was driving when he rear-ended a car in front of him, causing a
four-car accident. The defendant "appeared to be slurring his
words," his eyes were "a little bloodshot and glassy," and he
had trouble standing. The responding police officer detected an
odor of alcohol coming from the defendant. A cold, unopened can
of beer was found underneath the bumper of the defendant's car.
A plastic bag containing a second cold can of beer and a nip of
whiskey was found underneath a van the defendant was leaning
against. At the scene of the accident, the defendant admitted
to drinking a beer at a restaurant at lunch. When the police
officer drove the defendant to the police station for booking,
the defendant admitted to consuming a twenty-five-ounce can of
beer.
Prior to trial, the Commonwealth filed a motion in limine
to admit the defendant's medical records. Defense counsel told
the judge that she and the prosecutor would discuss redactions
to the records. During the trial, the prosecutor moved to admit
exhibits in evidence. The judge asked, "Have both sides gotten
together on the documents?" Defense counsel confirmed having
gone through the medical records and the prosecutor confirmed
that "there have been proper redactions made" to them. The
medical records were admitted in evidence. After the jury
rendered their guilty verdicts, the judge met with the jury to
thank them and explained that they could stay and observe the
2 next phase of the proceeding involving the subsequent offense.
One of the jurors told the judge that the jury were already
aware of the defendant's prior conviction and pointed to the
medical records. The top page of the medical records was the
summons directed to the keeper of the records and contained the
language "OUI/LIQUOR, 2nd OFFENSE."1 One of the jurors told the
judge that the jury "tried to put that out of [their] minds and
exclude that from [their] consideration." The judge then
informed counsel about the issue and, after discussing different
options, scheduled the case to another hearing date to allow
counsel time to brief the issue and allow defense counsel the
opportunity to file a motion for a required finding of not
guilty or a motion for a new trial.
At the hearing on July 6, 2023, the judge heard argument on
the defendant's motion for a new trial pursuant to Mass. R.
Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The
defendant argued that he was entitled to a new trial because,
from the inadvertent admission of the reference in his medical
records, the jury knew that he was charged with OUI as a second
offense. The judge denied the motion in a written order,
finding that "the extraneous matter did not prejudice the
1 The judge found that "[t]he failure of the parties to redact this language [was] unquestionably inadvertent."
3 defendant" in light of the "overwhelming collective strength of
the trial evidence."2
Discussion. The defendant argues that his trial counsel
was ineffective for allowing the defendant's medical records to
go to the jury without redacting the reference to the OUI second
offense charge. In assessing a claim of ineffective assistance
of counsel, we first review "whether there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinary fallible lawyer." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). We then determine whether
counsel's shortcoming "likely deprived the defendant of an
otherwise available, substantial ground of defence." Id.
When a defendant proceeds to a bifurcated trial on a second
or subsequent OUI offense, during the first portion of the
trial, "no part of the complaint or indictment which alleges
that the crime charged is a second or subsequent offense shall
be read or shown to the jury or referred to in any manner."
G. L. c. 278, § 11A. When a defendant raises a claim of
2 The defendant also filed a motion for a mistrial on the same grounds as the motion for a new trial. The judge denied the motion orally, finding that, although the second or subsequent portion of the OUI trial was pending, a mistrial on the underlying OUI was not a "possible route" where the jury had already entered its verdict. No issue is before us concerning the judge's denial of either motion.
4 ineffective assistance of counsel for the first time on direct
appeal instead of in a motion for new trial, we will reverse the
conviction only if the ineffectiveness appears "indisputably on
the trial record." Commonwealth v. Medeiros, 456 Mass. 52, 61
(2010), quoting Commonwealth v. Zinser, 446 Mass. 807, 811
(2006). As the Commonwealth concedes, the failure of trial
counsel here to make sure the second offense language was
redacted from the medical records was clear error and one that
may be addressed on direct appeal because the error appears
indisputably on the record.
Under the second prong of Saferian, 366 Mass. at 96, we
review whether the defendant has met his burden to show there is
"a serious doubt whether the result of the trial might have been
different had the error not been made" (citation omitted).
Commonwealth v. Millien, 474 Mass. 417, 432 (2016) ("where
counsel was ineffective for failing to present an available
ground of defense, that defense is 'substantial' for Saferian
purposes where we have a serious doubt whether the jury verdict
would have been the same had the defense been presented").
We have previously held that violations of G. L. c. 278,
§ 11A, materially contributed to a substantial risk of a
miscarriage of justice requiring reversal. In Commonwealth v.
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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-1308
COMMONWEALTH
vs.
GREG MCCOLLUM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury convicted
the defendant of operating a motor vehicle while under the
influence of intoxicating liquor (OUI) pursuant to G. L. c. 90,
§ 24 (1) (a) (1), and negligent operation of a motor vehicle
pursuant to G. L. c. 90, § 24 (2) (a). After waiving his right
to a jury trial on so much of the OUI charge alleging a second
offense, the defendant was convicted on the second or subsequent
portion of the OUI charge. The defendant appeals. We vacate
the judgments and set the verdicts and subsequent offense
finding aside.
Background. We summarize the undisputed facts. At
approximately 4:15 P.M. on August 10, 2018, the defendant was driving when he rear-ended a car in front of him, causing a
four-car accident. The defendant "appeared to be slurring his
words," his eyes were "a little bloodshot and glassy," and he
had trouble standing. The responding police officer detected an
odor of alcohol coming from the defendant. A cold, unopened can
of beer was found underneath the bumper of the defendant's car.
A plastic bag containing a second cold can of beer and a nip of
whiskey was found underneath a van the defendant was leaning
against. At the scene of the accident, the defendant admitted
to drinking a beer at a restaurant at lunch. When the police
officer drove the defendant to the police station for booking,
the defendant admitted to consuming a twenty-five-ounce can of
beer.
Prior to trial, the Commonwealth filed a motion in limine
to admit the defendant's medical records. Defense counsel told
the judge that she and the prosecutor would discuss redactions
to the records. During the trial, the prosecutor moved to admit
exhibits in evidence. The judge asked, "Have both sides gotten
together on the documents?" Defense counsel confirmed having
gone through the medical records and the prosecutor confirmed
that "there have been proper redactions made" to them. The
medical records were admitted in evidence. After the jury
rendered their guilty verdicts, the judge met with the jury to
thank them and explained that they could stay and observe the
2 next phase of the proceeding involving the subsequent offense.
One of the jurors told the judge that the jury were already
aware of the defendant's prior conviction and pointed to the
medical records. The top page of the medical records was the
summons directed to the keeper of the records and contained the
language "OUI/LIQUOR, 2nd OFFENSE."1 One of the jurors told the
judge that the jury "tried to put that out of [their] minds and
exclude that from [their] consideration." The judge then
informed counsel about the issue and, after discussing different
options, scheduled the case to another hearing date to allow
counsel time to brief the issue and allow defense counsel the
opportunity to file a motion for a required finding of not
guilty or a motion for a new trial.
At the hearing on July 6, 2023, the judge heard argument on
the defendant's motion for a new trial pursuant to Mass. R.
Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The
defendant argued that he was entitled to a new trial because,
from the inadvertent admission of the reference in his medical
records, the jury knew that he was charged with OUI as a second
offense. The judge denied the motion in a written order,
finding that "the extraneous matter did not prejudice the
1 The judge found that "[t]he failure of the parties to redact this language [was] unquestionably inadvertent."
3 defendant" in light of the "overwhelming collective strength of
the trial evidence."2
Discussion. The defendant argues that his trial counsel
was ineffective for allowing the defendant's medical records to
go to the jury without redacting the reference to the OUI second
offense charge. In assessing a claim of ineffective assistance
of counsel, we first review "whether there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinary fallible lawyer." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). We then determine whether
counsel's shortcoming "likely deprived the defendant of an
otherwise available, substantial ground of defence." Id.
When a defendant proceeds to a bifurcated trial on a second
or subsequent OUI offense, during the first portion of the
trial, "no part of the complaint or indictment which alleges
that the crime charged is a second or subsequent offense shall
be read or shown to the jury or referred to in any manner."
G. L. c. 278, § 11A. When a defendant raises a claim of
2 The defendant also filed a motion for a mistrial on the same grounds as the motion for a new trial. The judge denied the motion orally, finding that, although the second or subsequent portion of the OUI trial was pending, a mistrial on the underlying OUI was not a "possible route" where the jury had already entered its verdict. No issue is before us concerning the judge's denial of either motion.
4 ineffective assistance of counsel for the first time on direct
appeal instead of in a motion for new trial, we will reverse the
conviction only if the ineffectiveness appears "indisputably on
the trial record." Commonwealth v. Medeiros, 456 Mass. 52, 61
(2010), quoting Commonwealth v. Zinser, 446 Mass. 807, 811
(2006). As the Commonwealth concedes, the failure of trial
counsel here to make sure the second offense language was
redacted from the medical records was clear error and one that
may be addressed on direct appeal because the error appears
indisputably on the record.
Under the second prong of Saferian, 366 Mass. at 96, we
review whether the defendant has met his burden to show there is
"a serious doubt whether the result of the trial might have been
different had the error not been made" (citation omitted).
Commonwealth v. Millien, 474 Mass. 417, 432 (2016) ("where
counsel was ineffective for failing to present an available
ground of defense, that defense is 'substantial' for Saferian
purposes where we have a serious doubt whether the jury verdict
would have been the same had the defense been presented").
We have previously held that violations of G. L. c. 278,
§ 11A, materially contributed to a substantial risk of a
miscarriage of justice requiring reversal. In Commonwealth v.
Gonsalves, 74 Mass. App. Ct. 910, 910 (2009), the judge learned
of the erroneous admission of the defendant's prior OUI
5 convictions during jury deliberations after the jury sent a note
to the judge asking about the prior offenses. Although the
judge in Gonsalves gave a curative instruction, the jury
returned a verdict of guilty five minutes later. Id. We
reasoned in Gonsalves that "the fact that the jury focused on
the information, and the timing of the verdict, le[ft] us
unconvinced that no harm resulted." Id. See Commonwealth v.
Williams, 19 Mass. App. Ct. 915, 916 (1984) (conviction on OUI
second offense reversed after judge mistakenly advised jury of
second offense allegation). Those concerns apply with at least
as much force here, where the jury told the judge that the prior
OUI was on their minds during the deliberation and there was no
opportunity for a curative instruction.
We disagree with the Commonwealth's contention that the
defendant was not unfairly prejudiced by the admission of the
inadmissible OUI second offense evidence because the case
against the defendant was strong. Although there was evidence
of the defendant's intoxication, it did "not rise to the level
of overwhelming evidence." Commonwealth v. Baez, 106 Mass. App.
Ct. 219, 224 (2025) (running red light and stepping off line
during "walk and turn" test, "[e]ven when combined with the
traditional indices of intoxication -- slurred speech, odor of
alcohol, admission to consuming three drinks earlier that night,
and bloodshot eyes -- . . . left the defendant with a defendable
6 case"). The defendant here admitted to drinking a beer at lunch
and a twenty-five-ounce can of beer at some other point, and the
car accident took place around 4:15 P.M. Furthermore, there was
no evidence of any failed field sobriety tests (FSTs). Contrast
Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 328-329 (2023)
(concerns of unfair prejudice diminished where evidence of
intoxication included defendant's bloodshot and glassy eyes,
unsteady walking, three failed FSTs, and car accident);
Commonwealth v. Gallagher, 91 Mass. App Ct. 385, 390-391 (2017)
(improper evidence not prejudicial where defendant failed to
follow instructions to park in designated parking space,
admitted to consuming three beers shortly before stop, and
failed to complete two out of three FSTs). We conclude the
evidence of the defendant's guilt was not so strong that we are
left "unconvinced that no harm resulted." Gonsalves, 74 Mass.
App. Ct. at 910. Ultimately, as to both the OUI conviction and
the negligent operation conviction, we are left with a "serious
doubt whether the jury verdict[s] would have been the same" had
proper redactions of the medical records been made.3 Millien,
474 Mass. at 432.
3 The defendant also argues that: (1) he was denied the right to counsel; (2) trial counsel's failure to object to the Commonwealth's eliciting the defendant's inculpatory statements amounted to ineffective assistance of counsel; (3) the judge erred in preventing his expert from explaining medical terminology contained in the medical records; and (4) the
7 Accordingly, we vacate the judgments, set aside the
verdicts and the subsequent offense finding, and remand the case
to the District Court for further proceedings consistent with
this decision.4
Judgments vacated.
Verdicts and subsequent offense finding set aside.
By the Court (Singh, Grant & Tan, JJ.5),
Clerk
Entered: March 13, 2026.
Commonwealth gave an improper closing argument. In light of our disposition, we need not and do not address these arguments.
4 Given there is no indication that the error here was due to intentional prosecutorial misconduct, there are no double jeopardy implications. See Pierre v. Commonwealth, 489 Mass. 28, 33-35 (2022).
5 The panelists are listed in order of seniority.