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15-P-470 Appeals Court 16-P-949
COMMONWEALTH vs. DANIEL LEARY.
Nos. 15-P-470 & 16-P-949.
Hampden. January 18, 2017. - September 29, 2017.
Present: Green, Agnes, & Desmond, JJ.
Motor Vehicle, Homicide, Operating under the influence. Intoxication. Evidence, Breathalyzer test, Field sobriety test, Intoxication, Unavailable witness, Previous testimony of unavailable witness, Videotape. Witness, Unavailability. Practice, Criminal, Argument by prosecutor, Instructions to jury, Lesser included offense, Assistance of counsel, Motion to suppress, Execution of sentence.
Indictment found and returned in the Superior Court Department on April 27, 2011.
A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J.; the case was tried before Tina S. Page, J.; and a motion to reduce the verdict was heard by Edward J. McDonough, Jr., J.
A renewed motion to stay execution of sentence, which was filed in the Appeals Court on June 8, 2016, was considered by Trainor, J.
Barbara Munro for the defendant. 2
Amal Bala, Assistant District Attorney, for the Commonwealth.
AGNES, J. Following a nine-day jury trial in the Superior
Court, the defendant, Daniel Leary, was convicted of motor
vehicle homicide by reckless or negligent operation while under
the influence of alcohol. See G. L. c. 90, § 24G(a). The case
comes before us by two routes: the defendant's direct appeal,
and his appeal from an order of a single justice of this court
denying his renewed motion to stay execution of his sentence
pending the direct appeal. 1 For the reasons that follow, we
affirm.
Background. We recite the facts as the jury could have
found them, reserving several details for later discussion. On
March 25, 2011, at approximately 3:30 P.M., Peter Desrosiers
came to the defendant's house with a "thirty-pack" of beer. The
defendant was preparing motorcycles for a "motor cross" race the
next day. About one hour later, the defendant took his
motorcycle to the racetrack, in Southwick, and Desrosiers
followed in his truck, bringing the beer with him. At the
racetrack, the defendant continued his preparations for the next
day's race. At approximately 9:00 P.M., the defendant and
1 The defendant's direct appeal and his appeal from the order of the single justice denying his renewed motion to stay execution of sentence were heard together by the same panel of this court. 3
Desrosiers left the racetrack together in Desrosiers's truck to
pick up another motorcycle at the defendant's cousin's friend's
home, in West Springfield. The defendant drove because
Desrosiers felt drunk, having consumed as many as one dozen
beers by this time. They spent about an hour at the cousin's
friend's home, drinking beers that the defendant had brought
with him, and then left -- without the motorcycle, as it needed
repairs -- to return to the racetrack. Again, the defendant
drove.
Their route took them through a residential area, along
Dewey Street, where the victim was at a friend's home,
celebrating another friend's recent engagement. At
approximately 10:20 P.M., at the same time as the defendant was
driving down Dewey Street, the victim was walking on the side of
the road outside his friend's home. When the defendant saw the
victim, who was to his right, he swerved to the right, striking
the victim. The vehicle continued briefly along the lawn,
knocking over a mailbox, before coming to a stop about sixty
feet from the point of impact. The victim was taken to an area
hospital, where he later died of his injuries.
Officer Brian Duffy of the West Springfield police
department arrived at the scene within ten minutes of the
accident. While speaking with the defendant, the officer
detected a strong odor of alcohol on the defendant's breath, and 4
he (Duffy) noticed that the defendant's eyes were glassy and
bloodshot. Duffy asked the defendant if he had been drinking,
and the defendant admitted to having consumed two beers. After
the officer administered field sobriety tests, he and another
officer who observed the tests, Michael Kennedy, formed the
opinion that the defendant was impaired, and they arrested him.
At the police station, the defendant blew twice into a
breathalyzer machine. Each sample registered a blood alcohol
concentration (BAC) of .19 percent.
On April 27, 2011, a grand jury indicted the defendant for
motor vehicle homicide by reckless or negligent operation while
under the influence of alcohol or with a BAC of .08 percent or
greater. See G. L. c. 90, § 24G(a). The defendant's first
trial, which began on March 20, 2013, ended in a mistrial. On
July 25, 2013, following a nine-day retrial, at which the
defendant elected to testify on his own behalf, a jury of the
Superior Court convicted the defendant. The verdict form
permitted the jury to convict him under either or both of two
theories -- that he was under the influence of alcohol, or that
his BAC was .08 percent or greater. According to the verdict
form, the jury accepted the former theory, and rejected the
latter. See note 7, infra.
Discussion. 1. Admissibility of breathalyzer test
results. The defendant contends that the judge (suppression 5
judge) erred by denying his pretrial motion to suppress the
results of the breathalyzer test. Those results, he argues,
were improperly admitted because the breath test operator did
not observe him for fifteen minutes prior to administering the
test, in violation of 501 Code Mass. Regs. § 2.13(3) (2010).
"The purpose of the fifteen-minute waiting period is to ensure
that the defendant has not brought any substance into his mouth,
such as food, drink, or regurgitation by burping or by
hiccoughing, that would have had a contaminating impact on the
accuracy of the results, and to permit a sufficient lapse in
time to allow such possible contaminants to
clear." Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 231-232
(2008). This regulation was designed to ensure the accuracy of
the results. Commonwealth v. Hourican, 85 Mass. App. Ct. 408,
411 (2014). However, "mere 'deviations from meticulous
compliance'" do not justify the suppression of breathalyzer test
results. Commonwealth v. Zeininger, 459 Mass. 775, 792 (2011),
quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453
(1995). "[I]n cases where there is a 'substantial deviation,'
their admission constitutes reversible error." Ibid., quoting
from Pierre, supra at 235.
The record, which includes a video recording of the booking
process (booking video) and the breathalyzer test, confirms that
the breathalyzer test operator did not, himself, observe the 6
defendant for the requisite fifteen-minute period. The
suppression judge found, however, that there were multiple
officers at the booking, and that the defendant was in the
presence of one or more of them, continuously, for at least
twenty-eight minutes prior to the breathalyzer test. The
defendant takes issue with certain details in these findings,
such as the precise times that certain officers left or returned
to the booking room, and whether one officer was in a position
to observe him when he was taken to another area for an
additional field sobriety test.
When reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings absent clear error, but conduct
an independent review of his ultimate findings and conclusions
of law. Commonwealth v. Craan, 469 Mass. 24, 26 (2014). Here,
we need look no further than the booking video, upon which the
suppression judge relied, to confirm that the defendant was in
the presence of one or more of a handful of officers, in a
relatively small booking area, for more than the requisite
fifteen-minute period. The booking video also confirms the
testimony of one of those officers, who was with the defendant
for most of the twenty-eight minutes, and who testified that he
did not observe the defendant vomit, hiccough, burp, or place
anything in his mouth. We agree with the suppression judge that
whatever deviation there was from "meticulous compliance" goes 7
to the weight, not the admissibility, of the
results. Zeininger, 459 Mass. at 792. 2
2. Admission of prior testimony of an unavailable witness.
Officer Duffy, who responded to the scene of the accident,
testified during the defendant's first trial, which ended in a
mistrial. Three months before the date of the retrial, the
Commonwealth represented to the trial judge that Officer Duffy
would be unavailable to testify at the retrial for medical
reasons. The day before jury selection began in the retrial,
the trial judge allowed the Commonwealth's motion to admit the
transcript of Officer Duffy's testimony from the first trial,
over the defendant's objection. See Mass. G. Evid. § 804(b)(1)
(2017). After the trial was underway, during a sidebar
conference on the day Officer Duffy's testimony was to be
recited, counsel withdrew his objection, telling the trial judge
that the parties had agreed to the reading of the transcript.
Counsel did not object when the prior recorded testimony was
admitted. On appeal, the defendant now argues that the
testimony was improperly admitted because the Commonwealth
failed to offer evidence of Officer Duffy's unavailability. In
the absence of an objection, we review the admission of this
2 It is also notable that the accuracy of the test was thoroughly litigated, including through expert testimony, and that the jury declined to convict the defendant based on having a BAC of .08 percent or greater. See note 7, infra. 8
evidence, if error, for a substantial risk of a miscarriage of
justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295
(2002).
We are satisfied that no such risk is present. Certainly,
had Officer Duffy's testimony been excluded, the case against
the defendant would have been weaker. But, on review, the
question is whether "we are left with uncertainty that the
defendant's guilt has been fairly adjudicated." Ibid., quoting
from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). In this
case, we are left with no such uncertainty. First, at the time
of the Commonwealth's motion, the trial judge did not have the
benefit of Commonwealth v. Housewright, 470 Mass. 665, 671
(2015), to guide her analysis of witness
unavailability. Housewright did not alter existing law, but
merely "amplifie[d]" it, and "established a framework for"
analyzing unavailability "because of illness or infirmity. . . .
Such a framework had not previously existed." Commonwealth
v. Dorisca, 88 Mass. App. Ct. 776, 777 n.2 (2015). Second,
because the Commonwealth informed the trial judge of the
witness's anticipated unavailability well in advance of the
trial, this is not a case where "the defendant ha[d] little
opportunity to investigate the witness's medical condition to
challenge the prosecutor's claim of
unavailability." Housewright, supra at 674. Third, and most 9
importantly, the defendant thoroughly cross-examined the witness
at the first trial, a fact that ameliorates potential concerns
about the defendant's rights under the State and Federal
confrontation clauses. See Commonwealth v. Sena, 441 Mass. 822,
833-834 (2004).
3. Closing argument. The defendant claims that the
prosecutor's closing argument was improper for three reasons.
We determine whether errors occurred, before determining their
cumulative effect. See Commonwealth v. Niemic, 472 Mass. 665,
673 (2015).
a. Claimed errors. First, the defendant argues that the
prosecutor improperly injected his personal beliefs into the
case when he said, "[T]he Commonwealth doesn't even have to
prove that [the defendant] drove in an erratic manner, which he
obviously did. We don't have to prove it." (Emphasis
supplied.) 3 This was not improper. The prosecutor "interjected
no extraneous material or belief but [merely] expressed [his]
view of the strength of the evidence." Commonwealth v. Smith,
387 Mass. 900, 907 (1983).
3 It appears that the prosecutor sought to emphasize evidence of erratic driving, which bears on negligence, but without misleading the jury into believing that the law requires outright erratic driving. See Instruction 5.310 of the Criminal Model Jury Instructions for Use in the District Court (2013) (proof of erratic driving not required). 10
Second, the defendant argues that the prosecutor improperly
vouched for the credibility of Officer Kennedy, who was at the
accident scene, and who testified to the defendant's performance
on the field sobriety tests. In his closing argument, the
prosecutor said,
"[T]here is really nobody saying that this guy was falling down drunk. . . . So when Officer Kennedy was saying he was moderately impaired, that was him being honest. It would be ridiculous if he said, 'Oh, he was heavily impaired.' He told you the truth, he was moderately impaired."
"A prosecutor is free to provide the jury with the reasons
why they should find a witness's observations to be accurate,
but she cannot tell the jury that the witness speaks the
truth." Commonwealth v. Penn, 472 Mass. 610, 627 (2015). The
defendant lays particular emphasis on the phrase, "that was him
being honest." However, in context, the prosecutor was not
personally vouching for the witness. Rather, he was arguing to
the jury that they should find the testimony credible because it
was not exaggerated.
Third, and lastly, the defendant argues that the prosecutor
improperly appealed to the jury's sympathies when, nearing the
end of his argument, he invited them to "go back in time" and
consider whether, knowing all they had learned during the trial,
they would have intervened to prevent the victim's death. The
prosecutor told the jury that, if they would not have 11
intervened, they must return a not guilty verdict, 4 and shortly
after, he told them that if they would have intervened, they
must convict the defendant. 5
Although prosecutors may use dramatic descriptions of the
facts, an overt appeal to emotions may cause a jury to decide
the case based on considerations other than the weight of the
evidence. Commonwealth v. Vuthy Seng, 436 Mass. 537, 555-556
(2002). We agree that the prosecutor overstepped the bounds of
proper argument because he explicitly invited the jury to make
their determination based, not on the evidence, but on whether
they would have intervened had they been present and known what
4 The prosecutor stated, "So as the first group of people to be able to put this all together and then go back in time, you put it all, everything, and you go back in time. And you are standing there and you see [the victim] coming out of the house. And you see him walking down the driveway and then you see [the defendant] coming down. Do you not say anything? Well, it's no problem. The car is just going to go the way it's going. Or, do you, based on everything you know, do you say, 'Whoa, [victim], no, no, no, don't, don't go down the driveway.' Given everything that you know, which are you going to do? If you are going to let [the victim], from the position that you now stand knowing everything, walk down to the end of the driveway because there is a perfectly unimpaired reasonable person coming down the street that you know will just stay on the road, if you are comfortable that's what you are going to do, let [the victim] keep walking down that driveway, then I guess you've got to return a verdict of not guilty." 5 The prosecutor stated, "So you are floating above this case . . . knowing everything you know now, here comes [the defendant] down the street, here comes [the victim] down the driveway, do you say anything? Because if you say, 'Oh, oh, oh, don't -- let this car go by.' Your verdict must be guilty." 12
was soon to transpire. This form of argument, sometimes
described as a "Golden Rule" argument, is improper as it asks
the jurors to decide the case based on considerations beyond the
evidence. Commonwealth v. Finstein, 426 Mass. 200, 205 n.1
(1997). See Commonwealth v. Thomas, 400 Mass. 676, 684
(1987); Commonwealth v. Santiago, 425 Mass. 491, 501 (1997).
See also Mass. G. Evid. § 1113(b)(3)(D) (2017) (impermissible in
closing argument "to ask the jurors to put themselves in the
position of any person involved in the case").
b. Analysis. As the defendant did not object to the
prosecutor's closing argument, we review any error for a
substantial risk of a miscarriage of justice. Niemic, 472 Mass.
at 673. We consider a variety of factors to assess the impact
of the error. Santiago, supra at 500 (identifying factors).
Two favor the defendant. First, the statement did not refer to
a collateral issue; it went directly to the essential question
of guilt. Second, the trial judge's instructions to the jury
were inadequate to overcome whatever prejudicial effect the
statement had. Although there was an instruction regarding
sympathy, it was a generic instruction, bearing no apparent
relationship to the specific error. Whatever mitigating effect
it thus had was insufficient to fully remedy the error. See id.
at 501 (jury instruction that neither "specifically mention[ed] 13
sympathy" nor "correct[ed] the misstatement" was insufficient to
remedy error).
The balance of the factors, however, leads us to conclude
that there was no substantial risk of a miscarriage of justice.
The absence of an objection, in and of itself, suggests that
defense counsel did not consider the error to be sufficiently
prejudicial as to warrant an objection. See Commonwealth
v. Kozec, 399 Mass. 514, 518 n.8 (1987). The error was confined
to a single remark. Additionally, jurors are not bereft of some
capacity "to discount hyperbole and other improper
statements." Santiago, 425 Mass. at 495. Lastly, and most
importantly, we perceive no substantial risk of a miscarriage of
justice because the Commonwealth presented a very strong case
against the defendant. See id. at 501 ("[T]he strength of the
Commonwealth's case is particularly crucial where improper
appeals to sympathy are made").
The defendant did not dispute that he struck the victim.
We therefore focus on the strength of the evidence of his having
been under the influence of alcohol. That the defendant had
consumed some quantity of alcohol was undisputed. Officer Duffy
testified that, at the scene, the defendant said that he had had
two beers. The defendant himself, in his testimony, largely
confirmed this statement, demurring only slightly by saying he
was unsure whether he finished his second beer. There was 14
extensive evidence -- physical, testimonial, and documentary --
from which the jury could have concluded that the defendant had
consumed more than this amount. 6 Furthermore, regardless of the
specific quantity of alcohol consumed by the defendant, the
evidence warranted a finding by the jury that he was under the
influence of alcohol -- that is, that he was left with a reduced
ability to drive safely, such as by having decreased alertness,
mental clarity, self-control, or reflexes. See Commonwealth
v. Connolly, 394 Mass. 169, 173 (1985); Commonwealth v. Riley,
48 Mass. App. Ct. 463, 465 (2000). See also Instruction 5.310
of the Criminal Model Jury Instructions for Use in the District
Court (2013). 7
Upon arriving at the crash site, Officer Duffy saw that the
defendant had glassy, bloodshot eyes and smelled the odor of
alcohol on his breath. He then asked the defendant if he knew
6 The evidence included a photograph of eight empty beer cans in the bed of the truck the defendant was driving at the time of the accident. 7 The breathalyzer test results, both of which measured a BAC of .19 percent, merit a brief note. The jury declined to convict the defendant on the theory that his BAC was 0.08 percent or greater, even though they could have subscribed to this theory in addition to, rather than in the alternative to, the theory that he was under the influence. The defendant presented testimony from two expert witnesses that, taken together, suggest that the test results may have been inaccurate, and artificially high, due to the side effects of a "lap band" surgical procedure the defendant had previously undergone. 15
what time it was -- the defendant said that it was 9:00 P.M.
when, in fact, it was 10:35 P.M. Officer Duffy then asked the
defendant if he had been drinking, and the defendant admitted to
having two beers. It was then that Officer Duffy administered
the field sobriety tests, which Officer Kennedy witnessed.
The jury also heard testimony from both officers as to the
defendant's poor performance on the field sobriety tests. When
the tests began, and the defendant was asked to stand in the
"instructional position" -- one foot in front of the other, heel
to toe, and arms at his sides -- he was unable to maintain his
balance without raising his arms. He was then asked to recite
the alphabet, from C to W. He slurred through several letters
in the middle to the point that neither officer could understand
those letters, he continued past W, and started "all over again"
at A. Next, when asked to stand on one leg and count to thirty,
he had to place his raised foot down four times, and again he
had to use his arms for balance. Finally, when he was asked to
walk a straight line, he failed to count his steps aloud as
instructed; he was unable to place one foot directly in front of
the other, heel to toe; and he was yet again unable to maintain
his balance without raising his arms. 8
8 There is no dispute as to the adequacy of Officer Duffy's instructions to the defendant during the tests, and Duffy's testimony reflects that he explained them thoroughly and 16
The details of the accident itself confirm what the
foregoing already reveals -- impairment. The defendant claimed
that he was driving down Dewey Street at a speed somewhere
between twenty and twenty-three miles per hour. Yet, not only
was he unable to avoid striking the victim, but after doing so,
he continued for another sixty feet, partially along a lawn, and
knocked over a mailbox, before coming to a complete stop. In
contrast, a motorist who happened upon the accident almost
immediately after it occurred, upon seeing the victim's body
lying in the road before him, came to a stop between fifteen and
twenty feet before reaching the victim, even though he was
traveling at about forty miles per hour. After he stopped, he
made a 911 call, retrieved his flashlight, and went to the
victim to see if he was responsive. By this point, the
defendant and Desrosiers were only just exiting their vehicle,
sixty feet away.
c. Assessment. While reasonable minds may differ as to
the strength of each piece of evidence individually, when taken
as a whole, the case against the defendant was very strong, and
certainly more than sufficient to permit the conclusion that the
prosecutor's improper argument did not create a substantial risk
of a miscarriage of justice.
properly, including with a demonstration of the line-walking test. 17
4. Failure to give lesser included offense instruction.
Motor vehicle homicide by negligent or reckless operation is a
lesser included offense of motor vehicle homicide by negligent
or reckless operation while under the influence of alcohol.
G. L. c. 90, § 24G(a), (b). See, e.g., Commonwealth v. Roth,
437 Mass. 777, 778-779 & n.1 (2002). Prior to closing
arguments, the Commonwealth asked the trial judge to include an
instruction on the lesser included offense, but after the
defendant objected, the trial judge decided against doing so.
On appeal, the defendant reverses course -- he and the
Commonwealth both agree that the trial judge erred by acceding
to the objection of defense counsel. See Commonwealth
v. Woodward, 427 Mass. 659, 663-664 (1998). In addition to his
argument that the trial judge's error directly entitles him to
relief, the defendant presses two related arguments -- that his
counsel was ineffective by objecting to the instruction without
consulting him, and that a different judge improperly denied the
defendant's postconviction motion to reduce the verdict to one
based on the lesser included offense.
a. Relief based on judicial error. We agree that there
was an error. "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" (emphasis
supplied). Commonwealth v. Gould, 413 Mass. 707, 715 (1992). 18
See Commonwealth v. Shelley, 477 Mass. 642, 643 (2017).
Although this issue typically arises in cases where the judge
declines a defendant's request for such an instruction, rather
than the Commonwealth's, it matters not which party makes the
request. See Woodward, supra. Here, the evidence permitted a
finding on the lesser included offense, and the Commonwealth
requested the instruction; thus, the trial judge had no
discretion to refuse to give the instruction. Id. at 662-663
In a criminal matter, an error in the giving of, or failure
to give, a jury instruction, if occasioned by the defendant's
own request, is regarded as an invited error, and is reviewable
only to the extent necessary to prevent a substantial risk of a
miscarriage of justice. 9 Commonwealth v. Grant, 49 Mass. App.
Ct. 169, 171 (2000). See Commonwealth v. Vinnie, 428 Mass. 161,
180 (1998); Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 196
(1991). See also Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979)
9 Under Federal law, invited errors are generally deemed unreviewable. See, e.g., United States v. Young, 745 F.2d 733, 752 (2d Cir. 1984); United States v. Console, 13 F.3d 641, 660 (3d Cir. 1993); United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). But see United States v. Wells, 519 U.S. 482, 487-488 (1997) (invited error doctrine does not preclude review by United States Supreme Court). One court explains that this result prevails because the right to take exception to the error is not merely forfeited, but waived, in the strict sense of the term. See United States v. Perez, 116 F.3d 840, 844-845 (9th Cir. 1997). See generally United States v. Olano, 507 U.S. 725, 733-734 (1993) (discussing distinction between waiver and forfeiture). 19
("No party may assign as error the giving or the failure to give
an instruction unless he objects thereto before the jury retires
to consider its verdict"). "We review the evidence and the case
as a whole. We consider the strength of the Commonwealth's
case, the nature of the error, the significance of the error in
the context of the trial, and the possibility that the absence
of an objection was the result of a reasonable tactical
decision." Azar, 435 Mass. at 687. We need not repeat what we
have already said about the weight of the evidence, and only
remark that it weighs heavily against the conclusion that the
trial judge's error created a substantial risk of a miscarriage
of justice.
Counterbalancing this are the nature and significance of
the error, which implicate not only the "propriety of the
verdict returned by the jury," but also "the impropriety of
withdrawing from their consideration another verdict which,
although they might not have reached it, was nevertheless open
to them upon the evidence." Commonwealth v. Kendrick, 351 Mass.
203, 213 (1966). However, these factors do not overcome the
weight of the evidence in this case, and the likelihood that the
omission of the instruction was a core component of the over-all
defense strategy. Because the defendant admitted to striking
and killing the victim, including the instruction on the lesser
included offense would have created a high degree of risk that 20
the defendant, if not convicted of the greater offense, would be
convicted of the lesser included offense. Such circumstances
naturally lend themselves to consideration of an "all or
nothing" strategy -- i.e., one designed primarily to undermine
the evidence of alcohol consumption in order to win an outright
acquittal. The record suggests, quite strongly, that this was
the primary defense strategy. 10
Based on the record before us, the defense strategy was a
reasonable one, and we are not "left with uncertainty that the
defendant's guilt has been fairly adjudicated." Randolph, 438
10 We say this not only because counsel affirmatively opposed the instruction, but also because of the extensive efforts undertaken to undermine evidence that the defendant had a BAC of .08 percent or greater, and evidence that he was under the influence of alcohol. Counsel went to considerable lengths to call into question the credibility of the .19 percent breathalyzer test results, including by presenting the interlocking testimony of two expert witnesses, and was remarkably successful in overcoming this theory of the case. See note 7, supra. Although counsel was not successful in overcoming the other theory of the case -- that the defendant was under the influence of alcohol -- the record also discloses intensive, vigorous efforts to do so. These efforts included presenting expert testimony suggesting that the defendant's behavior in the booking video did not indicate impairment, as well as conducting careful, exacting cross-examinations of police officers and an expert who testified on the subject of field sobriety tests. The strategy culminated in a closing argument that focused almost entirely on the alcohol-related evidence, stressing the reasons why the jury should credit neither the breathalyzer test results nor the other evidence that the defendant was under the influence of alcohol. Had the strategy succeeded on both points, rather than one, the defendant would have won an outright acquittal. 21
Mass. at 294-295. Accordingly, the defendant is not entitled to
relief by virtue of the trial judge's error.
b. Relief based on error by counsel. Whether the
defendant is entitled to relief by virtue of an error by
counsel, however, is a separate question. The defendant
maintains that his counsel's objection was harmful to his
position and that he was prejudiced by his counsel's failure to
consult with him about whether to object to (or to request) a
lesser included offense instruction. Had he been consulted, the
defendant contends, he would have insisted that the trial judge
instruct the jury on the lesser included crime. The Supreme
Judicial Court has left undecided the question whether the
defendant has final authority over the decision.
See Commonwealth v. Donlan, 436 Mass. 329, 334-335 (2002). See
also Committee for Public Counsel Services, Assigned Counsel
Manual c. IV, part 1, § VI.G.1 (2012),
https://www.publiccounsel.net
/private_counsel_manual/CURRENT_MANUAL_2012/MANUALChap4Criminal
Standards.pdf [https://perma.cc/3GR2-9GU6] (criminal defense
attorneys should consult with their clients when developing
overall defense strategy).
On the record before us, we are unable to reach the merits
of the defendant's argument. "[T]he preferred method for
raising a claim of ineffective assistance of counsel is through 22
a motion for a new trial." Commonwealth v. Zinser, 446 Mass.
807, 810 (2006). "[A] 'claim of ineffective assistance may be
resolved on direct appeal of the defendant's conviction when the
factual basis of the claim appears indisputably on the trial
record.'" Id. at 811, quoting from Commonwealth v. Adamides, 37
Mass. App. Ct. 339, 344 (1994). Here, there is no affidavit
from counsel in the record, and the trial judge has not had an
opportunity to review the defendant's claim. 11
c. The rule 25(b)(2) motion. The defendant's motion under
Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995),
argued, in broad terms, that he was entitled to relief in order
to correct the trial judge's error and to promote substantial
justice. He specifically sought a reduction in the verdict, and
not a new trial, explaining that this would promote the
interests of judicial economy by obviating the need for him to
bring a motion for a new trial based on ineffective assistance. 12
The motion judge, who was not the trial judge, denied the motion
based on the weight of the evidence. See Commonwealth v. Rolon,
11 Although the defendant submitted his own affidavit, it was presented in support of a motion to reduce the verdict to the lesser included offense, pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). 12 The defendant described his ineffective assistance claim, but did not assert it, saying that such a claim would be based, at least in part, on counsel's alleged failure to consult with him. It was in this context that he cited his affidavit. See note 11, supra. 23
438 Mass. 808, 822 (2003) (reduction to lesser verdict is not
justified if it would be inconsistent with weight of evidence,
or if made based on factors irrelevant to level of offense
proved).
On appeal, the defendant argues that the motion judge erred
in his disposition of the motion because it challenged the
fairness of the trial, not the weight of the evidence.
See Commonwealth v. Pring-Wilson, 448 Mass. 718, 731 (2007). 13 A
judge's powers under rule 25(b)(2), he correctly notes, include
the power "to ameliorate injustice caused by the Commonwealth,
defense counsel, the jury, the judge's own error, or . . . the
interaction of several causes." Woodward, 427 Mass. at 667.
The issue is moot. The defendant's motion did not seek
relief based on an error by counsel, see note 12, supra, and
inasmuch as it sought relief based on the trial judge's error,
his argument merges into that which we have already addressed in
this appeal.
5. Other ineffective assistance claims. Separate and
apart from the ineffective assistance claim premised on
counsel's objection to the lesser included instruction, the
13 See also Kendrick, 351 Mass. at 213 (distinguishing between concern regarding "the propriety of the verdict returned by the jury" and concern regarding "the impropriety of withdrawing from their consideration another verdict which, although they might not have reached it, was nevertheless open to them upon the evidence"). 24
defendant also argues that he received ineffective assistance
for three other reasons. Two are based on omissions by counsel,
and must be treated separately.
a. Arguments based on omission. First, the defendant
claims that his counsel was ineffective because, during the
hearing on the motion to suppress the breathalyzer test results,
he failed to impeach two witnesses -- officers who were involved
in the booking process -- by pointing out inconsistencies
between their testimony and the booking video. Second, he
claims that his counsel was ineffective because, at trial, he
did not object to testimony from Officer Duffy, who opined on
the ultimate issue when he stated that, based on the field
sobriety tests and his other observations at the crash site, he
"formed the opinion that [the defendant] had been operating
under the influence of alcohol."
"Because virtually any omitted objection or argument can,
at least on its face, be attributed to ineffective assistance of
counsel, a wise defendant could in most cases opt for a more
favorable standard of review simply by couching his waived claim
in the language of ineffective assistance." Randolph, 438 Mass.
at 295. That is precisely what the defendant does with these
arguments. As this has the potential to produce awkward
results, in circumstances such as these, we do not evaluate the
ineffective assistance claim separately from the underlying 25
waived objection or argument; rather, we determine whether there
was a substantial risk of a miscarriage of justice. Id. at 295-
296. "[I]neffectiveness is presumed if the attorney's omission
created a substantial risk, and disregarded if it did not." Id.
at 296.
For the reasons we have already discussed, the purpose
underlying the fifteen-minute waiting period rule was satisfied,
and the minor inconsistencies between the officers' testimony
and the booking video were immaterial. Moreover, counsel
successfully undermined the reliability of the test results --
the jury so distrusted the .19 percent readings that they
rejected the theory that the defendant had a BAC of even .08
percent. There is no substantial risk of a miscarriage of
justice in these circumstances.
As to Officer Duffy's opinion testimony, it was, of course,
improper. "In a prosecution for operating a motor vehicle while
under the influence of alcohol, lay witnesses, including police
officers, may not opine as to the ultimate question whether the
defendant was operating while under the influence, but they may
testify to his apparent intoxication." Commonwealth v. Canty,
466 Mass. 535, 541 (2013), quoting from Commonwealth v. Jones,
464 Mass. 16, 17 n.1 (2012). However, the defendant is not
entitled to relief based on this error because, "in the context
of the entire trial," we cannot reasonably conclude "that the 26
error materially influenced the verdict." Randolph, supra at
298. As we have already discussed in extensive detail, there
was overwhelming evidence that the defendant was under the
influence of alcohol. The officer's statement -- made
immediately after he described the great number of ways in which
the defendant failed the field sobriety tests, and used as a
prelude to then explain why he arrested the defendant -- cannot
fairly be said to have added anything meaningful to the issue.
While the testimony was objectionable, and should have been
excluded had an objection been made, we are not left with "a
serious doubt whether the result of the trial might have been
different had the error not been made." Azar, 435 Mass. at 687.
b. Argument based on affirmative acts. Lastly, the
defendant argues that his counsel erred, and was ineffective, by
introducing in evidence a nine-minute video recording (interview
video) of his aborted interview with Officer Duffy and Captain
Daniel Spaulding, which took place a few hours after the
accident, at approximately 1:25 A.M., and after the defendant
had been Mirandized. At the beginning of the interview video,
Captain Spaulding asks the defendant whether he wishes to waive
his Miranda rights and describe the incident. Several times,
the defendant says he thinks he may want to speak with an
attorney, but he also vacillates throughout that time and does
not make any clear decision until the very end of the interview 27
video. See Commonwealth v. Peixoto, 430 Mass. 654, 658 (2000)
(defendant's invocation of right to counsel must be sufficiently
unambiguous). While the defendant comes to his decision, he
also offers a terse, fragmented description of the incident, to
the effect that the victim came into the road as he was driving,
and he swerved instinctually. 14
It is far from clear, on the record, why counsel wished to
introduce the interview video. The prosecutor was sufficiently
concerned about it that he informed the trial judge, at a
sidebar conference partway through the recital of Officer
Duffy's testimony, of defense counsel's intent to introduce it.
The prosecutor said it would create "volatile ground" because it
would "open[] the door" for him to pose otherwise improper
questions to police officers, and because the jury would see the
defendant invoke his right to remain silent. The trial judge
was puzzled by counsel's desire to use the interview video, and
she was rightly concerned about the jury seeing the defendant
invoke his right to remain silent. "[T]testimony regarding a
defendant's statements about his desire not to speak with police
14 In the interview video, Captain Spaulding, without posing a question to the defendant, described the interview as an opportunity for the defendant to relate the incident and fill in any "holes" in the investigation. To this, the defendant responded, "I just (pause). There's no holes. I mean, going to the road, and (pause). Coming across the street (pause). Swerved (pause). First instinct, you know, I mean (pause)." 28
may suggest to the jury that the defendant is guilty simply
because he chose to exercise his constitutional right to
silence." Commonwealth v. Beneche, 458 Mass. 61, 75 (2010).
Counsel gave the trial judge two explanations for why he
wished to introduce the interview video, neither of which is
particularly illuminating. First, he said the interview video
would support his contention that the officers failed, during
their investigation, to take into account the defendant's
statements, at the scene of the accident, that the victim
"jumped out" in front of him. 15 The defendant made such a
statement, first, to the motorist who first happened upon the
accident, upon his arrival; and second, to Officer Duffy, prior
to the field sobriety tests. But, as the trial judge noted,
both the motorist and Officer Duffy had already testified as to
those statements. Additionally, counsel did not mention the
interview video when, in his closing argument, he discussed the
defendant's statement that the victim "jumped out" in front of
the vehicle.
Second, counsel said that he wished to use the interview
video to rebut anticipated testimony from Captain Spaulding, who
counsel said was "being called with new information to say the
defendant seemed impaired and act[ed] confused during" the
15 Precisely how the interview video would support this argument remains unclear. 29
interview. However, the prosecutor replied that Captain
Spaulding was "only being called in response to [defense
counsel] putting [the video] in." And, in counsel's closing
argument, he only refers to the interview video in an attempt to
undermine Captain Spaulding's credibility.
It is quite possible that the record does not accurately or
completely reflect counsel's stated reasons for introducing the
interview video, and it is also possible that there are
additional, more clearly compelling reasons he did so. We are
only able to say that there is a significant question of fact
concerning the purpose of the interview video. 16 As the
defendant failed to first assert this ineffective assistance
claim in the trial court, the record before us is bereft of any
factual findings on this critical question, with the result that
we are unable to ultimately reach the argument now pressed by
the defendant. See Zinser, 446 Mass. at 810-811 (ineffective
assistance argument should first be raised in motion for new
16 There also exists an unresolved factual question whether and to what extent the interview video may have caused the defendant to suffer prejudice. On the one hand, evidence of a defendant's desire not to speak with police may be indicative of consciousness of guilt. See Peixoto, 430 Mass. at 658; Beneche, 458 Mass. at 75. On the other hand, the interview video may have created sympathy for the defendant -- he is visibly distraught and overwhelmed; he asks after the condition of the victim; he says, with apparent earnestness, that he does not want to hinder the officers' work by not speaking; and when he finally decides not to answer any questions, he apologizes. 30
trial, and may only be raised for first time in appellate
proceeding when its factual basis is clear on record).
Conclusion. On the record before us, the defendant has
failed to demonstrate that his conviction should be reversed,
and therefore we affirm the judgment of conviction. We also
conclude that the single justice did not abuse his discretion in
denying the defendant's renewed motion to stay execution of his
sentence, and we therefore affirm the single justice's order
denying that renewed motion.
So ordered.