Opinion
15-P-456
07-10-2017
COMMONWEALTH v. Keith FREEMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Keith Freeman, was convicted of leaving the scene of a motor vehicle accident that resulted in death. G. L. c. 90, § 24(2)(a½)(2). In this consolidated appeal from the conviction and from the denial of the defendant's motion for a new trial, the only issue raised for our consideration is whether trial counsel provided the defendant with ineffective assistance. We affirm.
Background. Based on the evidence presented at trial, the jury were warranted in finding the following. On the morning of September 19, 2013, the defendant was driving a rented U-Haul truck north on Berkshire Avenue in the city of Springfield. At the same time, Joseph Morin was operating a motorcycle going south on the same street. Several witnesses described the motorcycle as traveling at a high rate of speed, and weaving in and out of traffic. At an intersection, the defendant made a left turn from Berkshire Avenue on to Cottage Street. As he was turning, the motorcycle struck the rear passenger side of the defendant's vehicle. Morin died as a result of injuries he sustained in the collision. The defendant completed his left turn, stopped briefly, but then continued driving away down Cottage Street. Several people at the scene were yelling to the defendant that he had hit someone, but he testified that he did not hear any yelling. He was later indicted for violation of G. L. c. 90, § 24(2)(a½)(2).
The parties stipulated at the beginning of trial that:
"Joseph A. Morin died on September 19, 2013, from blunt force trauma as a result of [the] injuries he suffered after colliding with the U-Haul being operated by Keith Freeman at the intersection of Cottage Street and Berkshire Avenue in the city of Springfield on the same September 19th date. DNA testing has confirmed that Joseph Morin's blood was found on the U-Haul."
Police officers responded to the scene and spoke with witnesses. A radio dispatch was sent to officers informing them to "be on the lookout" for a U-Haul truck in the area of Cottage Street. Shortly thereafter, an officer observed a U-Haul truck matching the description driving approximately one and one-half to two miles from the scene of the accident. The officer stopped the vehicle and approached the driver, who identified himself as the defendant. The officer noticed significant damage to the rear passenger area of the truck. The officer spoke to the defendant, who stated that he had been driving on Berkshire Avenue and was about to make a left turn when he saw a motorcycle coming from the opposite direction, but thought that he still had enough time to make the turn. When asked if he had been involved in an accident, the defendant responded that he did not know, but that he felt that he had "hit a curb" and that he had stopped before proceeding.
Before trial, the defendant's trial counsel filed a motion to suppress the defendant's statements to police, arguing that because the defendant was not advised of his Miranda rights prior to being questioned by the officer, he had not waived his rights and thus the Commonwealth should not be allowed to use those statements at trial. However, trial counsel later withdrew the motion.
At trial, the Commonwealth offered the testimony of an accident reconstruction expert. The expert testified that if the defendant had hit the curb as he claimed, he would have struck it with both the front and rear tires, not just the rear tires in the area of impact. The expert also testified that the rear door frame of the U-Haul truck was bent and had to be forced opened with a crowbar. Prior to trial, the expert prepared a written report in which he stated, "Based on the evidence collected and all information known at this time, it is my opinion that [the U-Haul truck] never saw [the motorcycle]."
The defendant testified in his own defense. He stated that he did not "really" see the motorcycle prior to the collision, but that he saw vehicles traveling on Berkshire Street in the opposite direction as he approached the intersection. He repeated what he told the officer at the scene, namely that he believed he had enough time to make the left turn and that he had thought he hit a curb. The defendant testified that he then slowed down driving "a short distance" on Cottage Street, stopped, looked back through the rear view mirror, opened his door and again looked back, and then "kept going" because he did not see anything. He first learned that he had been in an accident when the police officer informed him after being stopped. On cross-examination, the defendant stated that he "might have" told the officer that he had seen a motorcycle "way up the street."
Discussion. Our review of a claim of ineffective assistance of counsel is governed by the familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89 (1974). In reviewing such a claim, we conduct "a discerning examination and appraisal of the specific circumstances of the given case to see 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—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defen[s]e." Id. at 96. "An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made." Commonwealth v. Martin, 427 Mass. 816, 822 (1998). "Only ‘strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent’ are manifestly unreasonable." Commonwealth v. Zagrodny, 443 Mass. 93, 98 (2004), quoting from Commonwealth v. Levia, 385 Mass. 345, 353 (1982). "The burden is on the defendant to meet both prongs of the [Saferian ] test." Commonwealth v. Peloquin, 437 Mass. 204, 210 (2002).
The defendant cites two alleged errors in support for his argument that he was provided ineffective assistance. First, he claims that his trial counsel was ineffective in withdrawing the motion to suppress statements he made to the police. Second, he claims that trial counsel was ineffective when he failed to elicit from the Commonwealth's accident reconstruction expert his opinion, contained in his report, that the defendant did not see the motorcycle.
With regard to the withdrawn motion, the defendant argues that when the officer stopped him, he was in custody for Miranda purposes and that the officer's questioning of him amounted to a custodial interrogation. In addition, he claims that his admission to the officer that he saw the motorcycle before making the left hand turn "was equivalent to admitting that he knew the motorcycle collided with his U-Haul" and that use of this statement at trial likely influenced the jury's verdict. We disagree.
See Miranda v. Arizona, 384 U.S. 436 (1966).
--------
We need not determine whether the defendant was subjected to a custodial interrogation requiring a Miranda warning because, as we conclude below, it was trial counsel's reasonable, strategic decision to withdraw the motion. The defendant's trial counsel, who at the time of trial had been practicing criminal law for about thirty-seven years, testified at the hearing on the defendant's motion for a new trial. He testified that the defendant told him that after he had made the left turn onto Cottage Street, he thought he had hit or drove over the curb. Trial counsel testified that he had gone to the intersection and saw a curb sticking out into the intersection. Trial counsel hired an accident reconstruction expert, who told him that either there were tire marks on the curb or that he had actually observed other trucks "running over the curb" while doing his investigation. Based on that information, trial counsel believed it was reasonable for the defendant to think he had hit the curb. After reviewing the matter with the defendant several times, it was "mutually" decided that trial counsel withdraw the motion to suppress. Trial counsel, along with the defendant, determined that the defendant's best defense was that he believed he had hit the curb and did not know that he was in an accident, and statements to that effect were contained in the defendant's statements to the officer.
As trial counsel testified, the central issue in the case was not whether the defendant saw the motorcycle before the collision, but whether the defendant had knowledge that he had been involved in an accident. See G. L. c. 90, § 24(2)(a½)(2) ; Commonwealth v. Daley, 463 Mass. 620, 624, 626 (2012) (crime of leaving scene of an accident where death resulted "requires the Commonwealth to prove that the defendant knew he collided with a person"). Given the strength of the Commonwealth's case, including the presence of Morin's blood on the back of the U-Haul truck, the loud sound of the collision that attracted the attention of numerous witnesses, the people yelling at the defendant that he had hit someone, and the fact that the defendant felt a "shift" or jolt big enough to cause him to momentarily stop the truck, it was necessary for his defense that a plausible explanation for why he drove away be given. Using the defendant's statements to the officer, which were made immediately after the collision and which were consistent with his testimony at trial, was a reasonable tactical decision.
The defendant essentially asserts that, had the motion to suppress not been withdrawn and had been allowed, he would have elected not to testify in his own defense. The motion judge rejected that claim as implausible, and we agree. Trial counsel testified that the defendant told him on more than one occasion that he wanted to testify in order to tell his side of the story. Trial counsel reviewed that decision with the defendant many times, up until the day of trial. Trial counsel felt that the defendant would be a good witness, presenting as honest and credible, and that his testimony would be beneficial to his case. Thus, the decision to withdraw the motion to suppress was not manifestly unreasonable.
The defendant also argues that trial counsel was ineffective for failing to elicit from the Commonwealth's expert his opinion noted in his report that the defendant never saw the motorcycle. The decision not to elicit the expert's opinion regarding that issue was not unreasonable, because, as noted above, the crucial issue in this case was whether the defendant knew he had been in an accident, not whether he had seen the motorcycle beforehand. In addition, the expert's opinion was not as absolute as the defendant now suggests. Later in that same paragraph of his report, the expert states that at the point when the motorcycle was passing another car "it might have been difficult for [the defendant] to see [the motorcycle]" (emphasis added). Furthermore, the expert never testified that the defendant either could or could not see the motorcycle before the accident. See Mass. G. Evid. § 613 (2017). Therefore, we agree with the motion judge that the failure to confront the Commonwealth's expert with a statement in his report was not manifestly unreasonable.
The defendant's claims are also undercut by his trial counsel's testimony that the defendant was fully involved in the defense of his case, and would often stop by counsel's office to discuss the case. Trial counsel testified that he thoroughly discussed his trial strategy with the defendant, including the nature of the defense and the decision to withdraw the motion to suppress, and that the defendant was in full agreement with that strategy. "When the arguably reasoned tactical or strategic judgments of a lawyer are questioned, we do not ‘second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty.’ " Commonwealth v. Johnson, 435 Mass. 113, 133 (2001), quoting from Commonwealth v. Stone, 366 Mass. 506, 517 (1974).
Because trial counsel's behavior did not fall below the threshold of a reasonably competent attorney, we need not reach the second prong of the standard under Saferian. See Saferian, 366 Mass. 96.
Judgment affirmed.
Order denying motion for new trial affirmed.