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-1374
COMMONWEALTH
vs.
STEVEN R. LUCIANO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of
operating a motor vehicle while under the influence of marijuana
(OUI-marijuana), G. L. c. 90, § 24 (1) (a) (1).1 The defendant
did not perfect an appeal from that conviction but he
subsequently moved for a new trial, arguing that his trial
counsel was ineffective for failing to present expert testimony
that the defendant's Spanish language background and fear of the
officer impacted his performance on the roadside assessments.
The judge, who also presided at trial, denied the defendant's
1The defendant was acquitted of negligent operation of a motor vehicle. motion for a new trial without conducting an evidentiary
hearing. We affirm.
Background. We recite the facts as the judge could have
found them.2 On May 26, 2019, at around 1 A.M., an officer of
the Erving police department was on uniformed patrol in a marked
police cruiser. While parked on the side of the road, the
officer observed the defendant's car traveling at fifty miles
per hour in an area where the speed limit was forty miles per
hour. As the car passed the officer, its driver's side tires
crossed the double yellow line separating the two lanes of
traffic. The officer followed behind the defendant's car as it
continued to exceed the posted speed limit and its driver's side
tires touched the double yellow line. The officer then
initiated a traffic stop, which his body camera and dash camera
recorded.
As the officer approached the passenger side door of the
car, he smelled burnt marijuana and saw smoke wafting out of the
car's window, which was rolled down about an inch. The officer
asked the defendant, the sole occupant, to roll down the window
further, and the defendant rolled down the window about four
2 The parties stipulated that the defendant operated a vehicle on a public way and that the substance found in the vehicle was marijuana. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 388 (2017). The only contested issue was whether the defendant was impaired by marijuana while driving.
2 inches. The defendant denied the existence of the smoke and
having smoked in the car, and he stated that there was no
marijuana in the car. After the officer pointed out the smoke,
the defendant admitted that he had recently smoked marijuana in
the parking lot of a nearby gas station. The defendant's eyes
were bloodshot and "droopy," and the defendant seemed lethargic
when answering questions. The officer asked the defendant to
exit the vehicle. As the defendant exited the vehicle, he
brushed ashes off of his shirt and shorts. The officer
instructed the defendant to perform a nine-step walk-and-turn
assessment. The defendant did not comply with the officer's
instructions. Rather, he repeatedly attempted to start the
assessment before the officer finished giving instructions, and
was unsteady, stumbling and waving his arms for balance while
listening to the instructions. During the one-legged stand
assessment, the defendant also swayed, struggled to maintain his
balance, and did not comply with the officer's instructions.
The officer asked the defendant about his educational
level, and the defendant stated that he had just completed his
second year of college. The officer instructed the defendant to
recite the alphabet. The defendant omitted the letters "I" and
"K" and repeated letters out of order, stating "Z, X, Y, W, X,
and Z." The officer then arrested the defendant. After
securing the defendant in his cruiser, the officer searched the
3 defendant's car and found a partially burnt marijuana cigarette
and rolling papers.
The defense called one witness, Dr. Joanne Samson, a
toxicologist and physiologist with expertise on drugs, including
marijuana. Dr. Samson testified to the signs and symptoms of
intoxication by marijuana use and its effect in humans. Dr.
Samson also testified to what physical symptoms would be
observed on a person who was intoxicated by marijuana.
After the defendant was convicted and had served his
probationary period, he moved for new trial on the basis of
ineffective assistance of counsel. The defendant proffered
expert testimony about (1) the impact of his Spanish language
background on his alphabet recitation, and (2) the neurological
impact of fear on roadside assessments. Trial counsel averred
that he was unaware of either defense at the time of trial. The
judge concluded that the language expert's testimony could not
have explained the defendant's errant recitation of the
alphabet, as he had been schooled in the United States since
first grade and had completed two years of college. The judge
also concluded that the expert testimony regarding the
defendant's fear of the officer "would not have changed [his]
view in this case" and thus "would not have changed the result."
Discussion. We review the denial of a motion for new trial
"for a significant error of law or abuse of discretion."
4 Commonwealth v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022).
"Special deference" is given to the motion judge who, as was the
case here, was also the trial judge. Commonwealth v. Nieves,
429 Mass. 763, 771 (1999). To prevail on his motion for new
trial based on ineffective assistance of counsel, the defendant
must show that "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), resulting in a substantial risk of a miscarriage
of justice. See Commonwealth v. Millien, 474 Mass. 417, 432
(2016). Trial counsel's performance also must have "likely
deprived the defendant of an otherwise available, substantial
ground of defence."3 Saferian, supra.
1. Alphabet recitation. In support of his motion for new
trial, the defendant offered expert testimony opining that the
defendant's errors reciting the alphabet could be attributed to
the defendant's Spanish language background rather than to
3 Because trial counsel was unaware of either defense at the time of trial, he did not make a strategic decision to forego the defenses, and we do not review for manifest unreasonableness. See Commonwealth v. Yat Fung Ng, 489 Mass.
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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-1374
COMMONWEALTH
vs.
STEVEN R. LUCIANO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of
operating a motor vehicle while under the influence of marijuana
(OUI-marijuana), G. L. c. 90, § 24 (1) (a) (1).1 The defendant
did not perfect an appeal from that conviction but he
subsequently moved for a new trial, arguing that his trial
counsel was ineffective for failing to present expert testimony
that the defendant's Spanish language background and fear of the
officer impacted his performance on the roadside assessments.
The judge, who also presided at trial, denied the defendant's
1The defendant was acquitted of negligent operation of a motor vehicle. motion for a new trial without conducting an evidentiary
hearing. We affirm.
Background. We recite the facts as the judge could have
found them.2 On May 26, 2019, at around 1 A.M., an officer of
the Erving police department was on uniformed patrol in a marked
police cruiser. While parked on the side of the road, the
officer observed the defendant's car traveling at fifty miles
per hour in an area where the speed limit was forty miles per
hour. As the car passed the officer, its driver's side tires
crossed the double yellow line separating the two lanes of
traffic. The officer followed behind the defendant's car as it
continued to exceed the posted speed limit and its driver's side
tires touched the double yellow line. The officer then
initiated a traffic stop, which his body camera and dash camera
recorded.
As the officer approached the passenger side door of the
car, he smelled burnt marijuana and saw smoke wafting out of the
car's window, which was rolled down about an inch. The officer
asked the defendant, the sole occupant, to roll down the window
further, and the defendant rolled down the window about four
2 The parties stipulated that the defendant operated a vehicle on a public way and that the substance found in the vehicle was marijuana. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 388 (2017). The only contested issue was whether the defendant was impaired by marijuana while driving.
2 inches. The defendant denied the existence of the smoke and
having smoked in the car, and he stated that there was no
marijuana in the car. After the officer pointed out the smoke,
the defendant admitted that he had recently smoked marijuana in
the parking lot of a nearby gas station. The defendant's eyes
were bloodshot and "droopy," and the defendant seemed lethargic
when answering questions. The officer asked the defendant to
exit the vehicle. As the defendant exited the vehicle, he
brushed ashes off of his shirt and shorts. The officer
instructed the defendant to perform a nine-step walk-and-turn
assessment. The defendant did not comply with the officer's
instructions. Rather, he repeatedly attempted to start the
assessment before the officer finished giving instructions, and
was unsteady, stumbling and waving his arms for balance while
listening to the instructions. During the one-legged stand
assessment, the defendant also swayed, struggled to maintain his
balance, and did not comply with the officer's instructions.
The officer asked the defendant about his educational
level, and the defendant stated that he had just completed his
second year of college. The officer instructed the defendant to
recite the alphabet. The defendant omitted the letters "I" and
"K" and repeated letters out of order, stating "Z, X, Y, W, X,
and Z." The officer then arrested the defendant. After
securing the defendant in his cruiser, the officer searched the
3 defendant's car and found a partially burnt marijuana cigarette
and rolling papers.
The defense called one witness, Dr. Joanne Samson, a
toxicologist and physiologist with expertise on drugs, including
marijuana. Dr. Samson testified to the signs and symptoms of
intoxication by marijuana use and its effect in humans. Dr.
Samson also testified to what physical symptoms would be
observed on a person who was intoxicated by marijuana.
After the defendant was convicted and had served his
probationary period, he moved for new trial on the basis of
ineffective assistance of counsel. The defendant proffered
expert testimony about (1) the impact of his Spanish language
background on his alphabet recitation, and (2) the neurological
impact of fear on roadside assessments. Trial counsel averred
that he was unaware of either defense at the time of trial. The
judge concluded that the language expert's testimony could not
have explained the defendant's errant recitation of the
alphabet, as he had been schooled in the United States since
first grade and had completed two years of college. The judge
also concluded that the expert testimony regarding the
defendant's fear of the officer "would not have changed [his]
view in this case" and thus "would not have changed the result."
Discussion. We review the denial of a motion for new trial
"for a significant error of law or abuse of discretion."
4 Commonwealth v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022).
"Special deference" is given to the motion judge who, as was the
case here, was also the trial judge. Commonwealth v. Nieves,
429 Mass. 763, 771 (1999). To prevail on his motion for new
trial based on ineffective assistance of counsel, the defendant
must show that "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), resulting in a substantial risk of a miscarriage
of justice. See Commonwealth v. Millien, 474 Mass. 417, 432
(2016). Trial counsel's performance also must have "likely
deprived the defendant of an otherwise available, substantial
ground of defence."3 Saferian, supra.
1. Alphabet recitation. In support of his motion for new
trial, the defendant offered expert testimony opining that the
defendant's errors reciting the alphabet could be attributed to
the defendant's Spanish language background rather than to
3 Because trial counsel was unaware of either defense at the time of trial, he did not make a strategic decision to forego the defenses, and we do not review for manifest unreasonableness. See Commonwealth v. Yat Fung Ng, 489 Mass. 242, 250 (2022) ("Where a claim of ineffective assistance of counsel is based on a tactical or strategic decision, the test is whether the decision was manifestly unreasonable when made" [quotation omitted]).
5 intoxication. The defendant immigrated from the Dominican
Republic to the United States at the age of six and did not
attend kindergarten in the United States. His family spoke only
Spanish at home. The defendant attended school in the United
States from first grade through his second year of college and
spoke English fluently. The expert witness's affidavit stated
that someone whose first language is not English may not have
been taught to recite the alphabet in order, even if that person
becomes a fluent English speaker and attends college.
We do not discern an abuse of discretion in the denial of
the motion on this ground. The expert's testimony related to
how English language learners are taught English. The expert
stated that English language learners may have difficulty with
recall of the English alphabet even while speaking
"grammatically correct and unaccented English." She opined that
it would be "unsurprising" for an individual who came to the
United States from the Dominican Republic at age six, who missed
American prekindergarten and kindergarten, and who spoke only
Spanish at home to erroneously recite the alphabet. The
defendant's affidavit stated that he did not recall being taught
to memorize the order of the English alphabet, but the "judge
was not required to credit any claims . . . in the defendant's
self-serving affidavit." See Commonwealth v. Gilbert, 94 Mass.
App. Ct. 168, 178 (2018). Moreover, the defendant told the
6 officer that he could recite the alphabet before attempting to
do so, and the judge found that credible.
Further, ample other evidence supported the defendant's
OUI-marijuana conviction. See Commonwealth v. Jewett, 471 Mass.
624, 636 (2015) (defendant exhibited "classic indicia of
impairment," including bloodshot eyes and crossing lane
markings). The officer testified that he saw and smelled
marijuana smoke and challenged the defendant's denial that there
was smoke in the car. The defendant admitted to having recently
smoked marijuana, and the officer discovered a partially burnt
marijuana cigarette in the defendant's car. The defendant did
not follow instructions during the roadside assessments. He
nearly fell on the ground while listening to the officer's
instructions.
2. Impact of defendant's fear on field sobriety
assessments. The defendant also offered an expert's affidavit
stating that the defendant's fear that the officer could harm
him "may have contributed to his lack of balance, his need for
repeated directions, his errors following those directions, and
other mistakes as he performed them." The Supreme Judicial
Court has recognized that, during a police stop, justified fear
"might lead an African-American male to be nervous or evasive in
7 his dealings with police officers."4 Commonwealth v. Evelyn, 485
Mass. 691, 709 (2020). While being instructed on a roadside
assessment that he declined to undertake, the defendant
expressed his fear of closing his eyes while alone with the
officer late at night.
As the judge noted, expert testimony is not necessary to
support the contention that performance on a roadside assessment
"is often attributable at least in part to nervousness and
fear," and the judge was aware of that. The defendant did not,
as he contends, scrupulously comply with the officer's
directions to avoid an "overreact[ion]." Rather, the defendant
attempted to conceal the smell of marijuana by avoiding rolling
down his window, lying to the officer about the presence of
smoke, and brushing ash from his clothes. Once again,
significant evidence aside from the roadside assessments
supported the defendant's conviction, including driving errors,
the defendant's admission to smoking marijuana, the smoke in the
car and wafting from it, and the partially burnt marijuana
cigarette in the defendant's car. See Commonwealth v. Facella,
478 Mass. 393, 411 (2017) (failure to elicit evidence at trial
not ineffective assistance where there was "overwhelming
4 The defendant identifies as Hispanic but is perceived by others as Black or African American.
8 evidence of the defendant's guilt"). We discern no abuse of
discretion in denying the defendant's motion for a new trial
based on this ground.
3. Evidentiary hearing. Finally, the defendant asserts
that the judge erred by denying his request for an evidentiary
hearing on his motion for a new trial. We conclude that "[i]t
was not error for the judge who denied the motion for a new
trial also to deny the defendant an evidentiary hearing on that
motion; the defendant's submissions raised no substantial
issues." Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003).
Order denying motion for new trial affirmed.
By the Court (Henry, Grant & D'Angelo, JJ.5),
Clerk
Entered: October 7, 2024.
5 The panelists are listed in order of seniority.