Opinion
13-P-1515
06-23-2015
COMMONWEALTH v. SEAN GAUDET.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of driving under the influence of intoxicating liquor, fifth offense, in violation of G. L. c. 90, § 24(1). On appeal, he argues that it was error for the motion judge to deny his motion to suppress statements. He also asserts that the trial judge erroneously denied his motion for a new trial based on a claim that his trial counsel was ineffective.
Background. In the light most favorable to the Commonwealth, the jury could have found the following facts. At approximately 11:00 P.M. on August 9, 2011, a Methuen police officer observed the defendant driving a Ford Ranger truck erratically and crossing the center double yellow line on Route 113 multiple times. The defendant did not immediately stop after the officer activated his lights, siren, and air horn. The officer eventually pulled over the defendant, who had glassy and bloodshot eyes and whose speech was slurred. He appeared generally dazed and confused and smelled of alcohol. The interior of the truck also smelled of alcohol and an officer found approximately twelve beers in the back seat area, six of which were cold and one was open and had apparently spilled.
Motion to suppress. The defendant claims the motion judge erred in denying his motion to suppress a statement that he made during the booking process about pulling his truck over because he thought the police car was trying to go by him. The defendant argues that the finding of the motion judge that the statement was voluntary and not responsive to any questioning was clearing erroneous. Second, he argues that Miranda warnings were required, but not given. We disagree.
When reviewing a motion to suppress, this Court accepts "the judge's subsidiary findings of fact absent clear error 'but conduct[s] an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
The motion judge found that "during booking, [the defendant] made a statement (perhaps twice) that the court finds was voluntary and not responsive to any questioning" by any officer in the station. The judge also found that any statement made by the defendant was not the result of interrogation "even though it/they preceded the standard provision of Miranda rights by [Lieutenant] Martin later in the booking process."
The defendant argues that the judge's findings were clearly erroneous based on Lt. Martin's testimony at the suppression hearing. Lt. Martin testified that he did not ask the defendant any questions that would have prompted the disputed statement, nor did he remember any other officer asking such questions. When asked again if it was possible that a question from another officer could have prompted the defendant's statement, Lt. Martin responded, "Anything is possible."
Any reliance by the defendant on Lt. Martin's response to suggest that the disputed statement was in reply to a question is misplaced, as the officer's response amounts to nothing more than speculation. Lt. Martin testified, and the motion judge found, that the defendant volunteered the statement in question. Where the statement was not a product of custodial questioning, there was no error on the part of the motion judge in denying the defendant's motion.
The defendant's claim that Miranda warnings were necessary also fails. Here, although the defendant was in custody at the police station, any questions posed to him were within the scope of the routine booking process. Moreover, the motion judge concluded that the defendant's statement was not in response to any questioning. Miranda warnings are "required not where a suspect is merely in police custody, but rather where a suspect is subjected to custodial interrogation." Commonwealth v. Torres, 424 Mass. 792, 796 (1997). "[S]tatements initiated spontaneously and voluntarily by a defendant are not the product of police questioning." Commonwealth v. Fortunato, 466 Mass. 500, 511 (2013). "Miranda does not protect volunteered statements." Commonwealth v. Gittens, 55 Mass. App. Ct. 148, 150 (2002). Miranda v. Arizona, 384 U.S 436, 478 (1966) ("Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today"). Where, as here, a statement is volunteered, it is not fatal that Miranda warnings were not given beforehand. Gittens, supra.
Motion for a new trial. The defendant also claims that the trial judge erroneously denied his motion for a new trial based on his claim that he did not receive the effective assistance of counsel. He argues his trial counsel was ineffective because he (1) failed to impeach Lt. Martin adequately, (2) introduced a video that did not accurately depict the road conditions on the night of the arrest, (3) did not call the defendant as a witness, and (4) failed to obtain or listen to the turret tapes.
To establish a claim of ineffective assistance of counsel, the defendant has the familiar burden of demonstrating that the conduct of counsel fell measurably below that which might be expected of "an ordinary fallible lawyer" and that, as a result, he was "deprived . . . of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In considering whether the defendant has satisfied his significant burden, we note that "[a] list of subjective critiques of defense counsel's decisions, absent a showing that [such] errors likely affected the jury's conclusions, is insufficient to support an ineffective assistance claim." Commonwealth v. Horton, 434 Mass. 823, 831 (2001). We conclude that the judge did not abuse his discretion in denying the motion for a new trial.
a. Impeachment of Lt. Martin. The judge concluded that counsel was not ineffective for failing to impeach Lt. Martin at trial with his testimony at the suppression hearing. The judge found that any inconsistency in Lt. Martin's testimony was "extremely minor in nature." Moreover, the judge asserted that even if trial counsel had attempted to impeach the witness with his prior testimony it would have had no impact on the jury. These conclusions are fully supported by the record. At the suppression hearing, Lt. Martin testified that the defendant had stated that he pulled his truck over because he thought the police cruiser was trying to go by him. At trial, the witness also testified that the defendant had said that at first he did not realize the police cruiser was behind him and when he did, he pulled over because he thought the officer was trying to go by him. This additional statement that the defendant did not realize the cruiser was behind him did not unduly prejudice him and the fact that counsel did not pursue the discrepancy was not manifestly unreasonable. Indeed, had he done so, such a strategy could easily have backfired. In the circumstances, the performance of counsel was not ineffective. The judge neither erred nor abused his discretion in denying the motion based on this claim.
b. Videotape of road. The judge also concluded that trial counsel was not ineffective in presenting at trial a videotape of the road on which the defendant was travelling on the night of his arrest. He found that it was a reasonable strategy for trial counsel to emphasize the difficulty of navigating the road in question. Indeed, the judge stated that at trial he "was absolutely wowed" by the video and considered it to have been "extremely effective" in providing an explanation for why the defendant was weaving and crossing the center line. Even though the videotape was not filmed at night and did not show potholes or construction equipment allegedly present on the evening of the arrest, the judge concluded that its use was "still a net gain" and that it supported, and did not hinder, the strategy of the defense at trial. The judge neither erred nor abused his discretion in denying the motion based on this claim.
c. Defendant as witness. The judge concluded that trial counsel was not ineffective in deciding not to call the defendant as a witness at trial. This conclusion is supported by the fact that he would have been cross-examined about having glassy and bloodshot eyes as well as slurred speech, his smelling of alcohol, the multiple cold beer cans in his vehicle, one of which was open and apparently spilled, and his generally dazed and confused appearance. Moreover, his claim that someone at a party he attended had put the beer in his truck would have been undermined as he had refused to identify the people who attended the party. The judge also had the opportunity to observe the demeanor of the defendant when he testified at the hearing on the new trial motion and essentially concluded that he was not a good witness, a factor that could be seen to support the decision for him not to testify at trial. Counsel's strategic decision to advise a defendant not to testify is constitutionally ineffective "only if it was manifestly unreasonable at the time it was made." Commonwealth v. Bell, 455 Mass. 408, 421 (2009). See Commonwealth v. Smith, 459 Mass. 538, 551 (2011). On the record before us, it has not been made to appear that such a strategic decision in the present matter was manifestly unreasonable. The judge neither erred nor abused his discretion in concluding that the defendant had failed to satisfy his heavy burden of demonstrating ineffectiveness on this ground.
d. Turret tape. There is nothing in the record to support the claim that the defendant's trial attorney neither obtained nor listened to the turret tape. Although appellate counsel claims that he did not receive a copy of the tape in trial counsel's case file, that fact does not eliminate the possibility that counsel listened to the tape at the police station. In the absence of either an affidavit from trial counsel or his testimony at the hearing on the defendant's motion for new trial, we are left to speculate in this regard, which we will not do. In any case, the judge found that the tape does not "present any evidence which undermines, in a material way, the testimony of [the arresting officer]." After listening to the tape, we cannot say that we disagree with the motion judge's statement that the "turret tapes would not have made a difference one way or the other in the outcome of the case." The judge neither erred nor abused his discretion in denying the motion based on this claim.
Judgment affirmed.
Order denying motion for new Trial affirmed.
By the Court (Rapoza, C.J., Carhart & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 23, 2015.