Opinion
09-P-169
05-16-2012
COMMONWEALTH v. JAMES CONSTANTINO, JR.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James Constantino, Jr., appeals from his conviction of operating a motor vehicle while under the influence of alcohol, third offense, and from the denial of his motion for a new trial. He argues that his trial counsel was ineffective in failing to interview or call a potential witness, failing to investigate the defendant's medical issues as a possible defense, and using a letter from the defendant's insurance company at trial. As these were not manifestly unreasonable tactical decisions and the defendant was not deprived of a substantial ground of defense, we affirm.
No additional issues were raised in the defendant's direct appeal.
Among the elements a defendant must show to establish ineffective assistance of counsel is that serious incompetency by trial counsel 'deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 'A defendant must show that better work might have accomplished something material for the defense. . . . A strategic or tactical decision by counsel will not be considered ineffective assistance unless the decision was 'manifestly unreasonable' when made.' Commonwealth v. Watson, 455 Mass. 246, 256 (2009), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998). The affidavit of the defendant's trial counsel makes clear that the failure to call the witness was a tactical decision. The witness's potential testimony, that he did not prop up the defendant and the defendant had no trouble standing, could have been helpful to rebut the police officers' testimony to the contrary. However, the witness also would have testified that he served the defendant an alcoholic drink before the accident, contradicting the defendant's statement to police that he had not had anything to drink. This would have undermined the defendant's credibility and his trial strategy of contesting impairment and arguing the lack of evidence that he drank any alcohol. The decision not to call the witness was therefore not ''manifestly unreasonable' when made.' Ibid.
Assuming, although counsel's affidavit is not clear, that trial counsel did not interview the witness, the witness's affidavit states that he would have testified consistently with what the defendant told his trial counsel. The defendant therefore suffered no prejudice from any failure to interview the witness.
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The defendant's next argument relates to the failure to follow up on medical records that were over five years old at the time of trial. His only contention is that 'trial counsel should have explored a medical condition defense to explain [his] demeanor.' However, the defendant has proffered no evidence that the maladies with which he was diagnosed in 2002 and 2003 could have caused him to have glassy eyes, the odor of alcohol on his breath, and difficulty standing in 2007. Moreover, trial counsel established through cross-examination and argued to the jury that the defendant's physical difficulties could have resulted from the shock and trauma of the accident or other causes. The defendant was therefore not deprived of 'an otherwise available, substantial ground of defence.' Saferian, supra at 96.
Finally, the defendant contests trial counsel's tactical decision to use a letter from the defendant's insurance company in cross-examining a police officer. Contrary to the defendant's claim, the letter stating that the other driver was at fault does not establish or concede operation by the defendant. The defendant's statements to police and other circumstantial evidence were more than sufficient to establish operation. See Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438-440 (2002); Commonwealth v. Congdon, 68 Mass. App. Ct. 782, 783-784 (2007). It was not a 'manifestly unreasonable' trial strategy to argue that the defendant's ability to drive was not impaired and that the other driver was at fault for the accident. Questioning based on the letter 'did not fill a hole in the prosecution's case.' Id. at 784.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Kafker & Green, JJ.),