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
23-P-762
COMMONWEALTH
vs.
SCOTT M. KARWIEL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bifurcated trial in the Superior Court, the
defendant was convicted of operating under the influence of
intoxicating liquor (OUI), fifth offense, 1 and negligent
operation. The defendant appealed from the judgments and later,
represented by new counsel, moved for a new trial, arguing that
his original attorney had failed to provide him with effective
assistance at trial. The trial judge denied the defendant's
motion and he appealed from that ruling. After considering the
defendant's consolidated appeals from his convictions and from
the order denying his motion for a new trial, we affirm.
1The defendant was convicted by a jury of the OUI; he waived his right to a jury trial on the subsequent offense portion of that indictment. Background. As part of his pretrial preparation, the
defendant's trial counsel obtained copies of medical records
related to the defendant's past treatment for, among other
conditions, back pain and prior back surgery. The Commonwealth
moved in limine to preclude the introduction of the records on
relevancy grounds, 2 arguing that the defendant had not
demonstrated that the records would "aid the jury in any finding
of fact relating to this case." Defense counsel explained that
the records were relevant because the Commonwealth intended to
offer evidence of the defendant's unsatisfactory performance on
field sobriety tests, and the records would "go directly to [the
defendant's] ability to do physical tests" and establish that
the defendant had "been disabled for a very long time." 3 After
reviewing the proffered records, however, the judge concluded
that (1) some of the records were not temporally relevant, and
(2) even where temporally relevant, there was nothing in the
records to indicate a causal connection between the defendant's
medical condition and his performance on the field sobriety
2 The Commonwealth did not challenge the authenticity of the records, which were certified under G. L. c. 233, § 79G. 3 Defense counsel did not argue that the records were
admissible for any other purpose, and the judge does not appear to have considered the admissibility of the records on any other basis. The defendant did not challenge the judge's ruling in his motion for a new trial and does not do so on appeal.
2 tests, at least without expert testimony. The judge excluded
the records.
At trial, the Commonwealth introduced evidence of the
defendant's intoxication through the arresting trooper. This
evidence included the trooper's observations of the defendant's
car, which had left the travel lanes of Route 495, hit a sign,
and come to rest on the median, perpendicular to the roadway.
It also included the trooper's observations of the defendant,
who told the trooper that the accident was the result of his
"check engine light" coming on. The trooper testified that the
defendant was unsteady on his feet, swaying, and leaning on his
car; smelled "strong[ly]" of alcohol; and had bloodshot and
glassy eyes with "pinpoint pupils." The defendant spoke in a
way that was "incoherent, and when it did make sense it was
slurred." Additionally, the trooper found a half-empty
eighteen-pack of cold beer in the passenger compartment behind
the front passenger seat. The defendant denied drinking. 4
The trooper further testified that after he made the
observations summarized above, he asked the defendant to perform
field sobriety tests. According to the trooper, the defendant
agreed, telling the trooper that "he had a back injury and a
thoracic injury." In response to the trooper's question whether
4 All the beers in the car were unopened.
3 those conditions would prevent the defendant from participating
in field sobriety tests, the defendant said, "no." The
defendant attempted both of the field sobriety tests the trooper
offered -- the nine-step walk-and-turn and the one-leg stand --
but did not complete either one of them to the trooper's
satisfaction because he was stumbling.
Defense counsel cross-examined the trooper and, after the
prosecution rested its case, called the defendant's cousin to
testify about his interactions with the defendant earlier in the
day on which the defendant was arrested. In doing so, counsel's
focus was on discrediting and explaining the evidence of the
defendant's intoxication at the time of the accident. For
example, his cross-examination underscored the trooper's
awareness of the defendant's back and thoracic injuries at the
time he administered the field sobriety tests, suggested that
the defendant may have understated the impact of those
conditions on his ability to do the tests that were offered, and
elicited the testimony that suggested that the defendant was
both "one hundred percent" cooperative with the trooper and able
to walk unaided when not performing field sobriety tests.
Defense counsel also elicited testimony from the defendant's
cousin explaining the eighteen-pack of beer found in his car
and, more generally, the defendant's sobriety on the day of the
incident. In addition, defense counsel elicited evidence from
4 the defense witness about the fact and timing of the defendant's
prior back surgeries.
After the defendant's convictions of OUI, fifth offense,
and negligent operation, he filed a motion for new trial based
on the exclusion of his medical records, supported by an
affidavit of his trial counsel. The motion was not, however,
supported by any expert opinion evidence tying the substance of
the excluded medical records to the defendant's ability to
perform the field sobriety tests administered to him before his
arrest in this case. On appeal, the defendant's sole contention
is that he was deprived of the effective assistance of counsel
at trial.
Discussion. "[A] motion for a new trial is addressed to
the sound discretion of the trial judge" (citation omitted).
Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), S.C., 478
Mass. 189 (2017). Because the judge who ruled on the motion for
a new trial was also the trial judge, we extend "special
deference" to her denial of the motion. Commonwealth v.
Robertson, 88 Mass. App. Ct. 52, 59 n.14 (2015), quoting
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Our review is
for an abuse of discretion, meaning that we consider whether it
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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
23-P-762
COMMONWEALTH
vs.
SCOTT M. KARWIEL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bifurcated trial in the Superior Court, the
defendant was convicted of operating under the influence of
intoxicating liquor (OUI), fifth offense, 1 and negligent
operation. The defendant appealed from the judgments and later,
represented by new counsel, moved for a new trial, arguing that
his original attorney had failed to provide him with effective
assistance at trial. The trial judge denied the defendant's
motion and he appealed from that ruling. After considering the
defendant's consolidated appeals from his convictions and from
the order denying his motion for a new trial, we affirm.
1The defendant was convicted by a jury of the OUI; he waived his right to a jury trial on the subsequent offense portion of that indictment. Background. As part of his pretrial preparation, the
defendant's trial counsel obtained copies of medical records
related to the defendant's past treatment for, among other
conditions, back pain and prior back surgery. The Commonwealth
moved in limine to preclude the introduction of the records on
relevancy grounds, 2 arguing that the defendant had not
demonstrated that the records would "aid the jury in any finding
of fact relating to this case." Defense counsel explained that
the records were relevant because the Commonwealth intended to
offer evidence of the defendant's unsatisfactory performance on
field sobriety tests, and the records would "go directly to [the
defendant's] ability to do physical tests" and establish that
the defendant had "been disabled for a very long time." 3 After
reviewing the proffered records, however, the judge concluded
that (1) some of the records were not temporally relevant, and
(2) even where temporally relevant, there was nothing in the
records to indicate a causal connection between the defendant's
medical condition and his performance on the field sobriety
2 The Commonwealth did not challenge the authenticity of the records, which were certified under G. L. c. 233, § 79G. 3 Defense counsel did not argue that the records were
admissible for any other purpose, and the judge does not appear to have considered the admissibility of the records on any other basis. The defendant did not challenge the judge's ruling in his motion for a new trial and does not do so on appeal.
2 tests, at least without expert testimony. The judge excluded
the records.
At trial, the Commonwealth introduced evidence of the
defendant's intoxication through the arresting trooper. This
evidence included the trooper's observations of the defendant's
car, which had left the travel lanes of Route 495, hit a sign,
and come to rest on the median, perpendicular to the roadway.
It also included the trooper's observations of the defendant,
who told the trooper that the accident was the result of his
"check engine light" coming on. The trooper testified that the
defendant was unsteady on his feet, swaying, and leaning on his
car; smelled "strong[ly]" of alcohol; and had bloodshot and
glassy eyes with "pinpoint pupils." The defendant spoke in a
way that was "incoherent, and when it did make sense it was
slurred." Additionally, the trooper found a half-empty
eighteen-pack of cold beer in the passenger compartment behind
the front passenger seat. The defendant denied drinking. 4
The trooper further testified that after he made the
observations summarized above, he asked the defendant to perform
field sobriety tests. According to the trooper, the defendant
agreed, telling the trooper that "he had a back injury and a
thoracic injury." In response to the trooper's question whether
4 All the beers in the car were unopened.
3 those conditions would prevent the defendant from participating
in field sobriety tests, the defendant said, "no." The
defendant attempted both of the field sobriety tests the trooper
offered -- the nine-step walk-and-turn and the one-leg stand --
but did not complete either one of them to the trooper's
satisfaction because he was stumbling.
Defense counsel cross-examined the trooper and, after the
prosecution rested its case, called the defendant's cousin to
testify about his interactions with the defendant earlier in the
day on which the defendant was arrested. In doing so, counsel's
focus was on discrediting and explaining the evidence of the
defendant's intoxication at the time of the accident. For
example, his cross-examination underscored the trooper's
awareness of the defendant's back and thoracic injuries at the
time he administered the field sobriety tests, suggested that
the defendant may have understated the impact of those
conditions on his ability to do the tests that were offered, and
elicited the testimony that suggested that the defendant was
both "one hundred percent" cooperative with the trooper and able
to walk unaided when not performing field sobriety tests.
Defense counsel also elicited testimony from the defendant's
cousin explaining the eighteen-pack of beer found in his car
and, more generally, the defendant's sobriety on the day of the
incident. In addition, defense counsel elicited evidence from
4 the defense witness about the fact and timing of the defendant's
prior back surgeries.
After the defendant's convictions of OUI, fifth offense,
and negligent operation, he filed a motion for new trial based
on the exclusion of his medical records, supported by an
affidavit of his trial counsel. The motion was not, however,
supported by any expert opinion evidence tying the substance of
the excluded medical records to the defendant's ability to
perform the field sobriety tests administered to him before his
arrest in this case. On appeal, the defendant's sole contention
is that he was deprived of the effective assistance of counsel
at trial.
Discussion. "[A] motion for a new trial is addressed to
the sound discretion of the trial judge" (citation omitted).
Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), S.C., 478
Mass. 189 (2017). Because the judge who ruled on the motion for
a new trial was also the trial judge, we extend "special
deference" to her denial of the motion. Commonwealth v.
Robertson, 88 Mass. App. Ct. 52, 59 n.14 (2015), quoting
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Our review is
for an abuse of discretion, meaning that we consider whether it
resulted from "'a clear error of judgment in weighing' the
factors relevant to the decision . . . such that the decision
falls outside the range of reasonable alternatives.'" L.L. v.
5 Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto
v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). In
assessing whether trial counsel's performance deprived the
defendant of his right to effective assistance of counsel, we
apply the familiar standard articulated in Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974), asking whether (1) that
performance fell "measurably below that which might be expected
from an ordinary fallible lawyer," and (2) if so, "whether it
has likely deprived the defendant of an otherwise available,
substantial ground of defence."
Here, in view of the narrow scope of the defendant's motion
for a new trial, we discern no abuse of discretion in the
judge's denial of the defendant's motion. We need not decide
whether, under the first prong of the Saferian test, 366 Mass.
at 96, trial counsel's performance fell measurably below
accepted standards of practice. This is because, even assuming
arguendo that trial counsel's failure to obtain an expert to
explain the medical records amounted to substandard practice (a
conclusion that we do not reach), the defendant failed to
satisfy the second prong of that test by demonstrating that he
was prejudiced as a result of his counsel's misstep.
First, where the motion for a new trial was not supported
by an affidavit or other evidence to show that the available
medical records would have supported the defendant's claim that
6 his physical condition disabled him from performing the tests
administered by the trooper, we cannot say that "better work
might have accomplished something material for the defense" in
this case. Commonwealth v. Satterfield, 373 Mass. 109, 115
(1977). Cf. Commonwealth v. Baran, 74 Mass. App. Ct. 256, 274-
276 (2009) (affirming order allowing motion for new trial where
defendant supported ineffective assistance claim with expert
testimony outlining how trial counsel could have undermined
impact of inculpatory evidence).
Second, even if that were not the case, in light of the
strong evidence of intoxication and the jury's awareness through
both the trooper and the defendant's witness that the defendant
had a history of back injuries, it is difficult to imagine that
admission of the excluded medical records would "have
accomplished something material for the defense." Satterfield,
373 Mass. at 115. At a minimum, the defendant's motion failed
to establish the second prong of the Saferian test.
7 Accordingly, the judge was within her discretion in denying the
motion.
Judgments affirmed.
Order denying motion for a new trial affirmed.
By the Court (Meade, Neyman & Hand, JJ. 5),
Assistant Clerk
Entered: May 15, 2024.
5 The panelists are listed in order of seniority.