Opinion
16-P-572
03-22-2017
COMMONWEALTH v. John HEARON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, John Hearon, was convicted of operating a motor vehicle while under the influence of alcohol (OUI), third offense, G. L. c. 90, § 24(1)(a )(1), and negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a ). The defendant filed a motion for a new trial due to ineffective assistance of counsel. The motion judge, who was also the trial judge, denied the motion, and the defendant did not appeal. Nine months later, the defendant filed a second motion for a new trial, which largely restated the grounds raised in the first motion. It was also denied. It is from the second denial that the defendant appeals. For the reasons that follow, we affirm.
The Commonwealth argues that the two motions for new trial mirror each other and therefore the defendant has waived his right to appeal by failing to either file an appeal within thirty days of his first denial, Mass.R.A.P. 4(b), as amended by 431 Mass. 1601 (2000), or moving to file the appeal late, Mass.R.A.P. 14(b), as amended by 378 Mass. 939 (1979). Rather than first analyzing whether such omissions themselves constitute ineffective assistance of counsel—an analysis that likely would include consideration whether a direct appeal from the first denial would have raised substantial issues—we proceed directly to consider those underlying issues. One way or another, the defendant is entitled to a review of his ineffective assistance of counsel claims here pursuant to the substantial risk of a miscarriage of justice standard set out in Commonwealth v. Randolph , 438 Mass. 290, 296 (2002).
Background . The jury were warranted in finding the following facts. On June 8, 2012, Officer Sean Barry was traveling southbound on Route 128 in Westwood when he observed a black Chevy Corvette automobile traveling in the third travel lane closest to the breakdown lane. As the officer watched, the Corvette traveled from the third lane to the breakdown lane, then back through the third lane and into the second lane, three times. Officer Barry activated his blue lights, but the defendant did not pull over. Officer Barry then activated his siren, and the defendant made a hard right turn into a rest area. Upon approaching the Corvette, Officer Barry saw the defendant sitting in the driver's seat, and smelled a strong odor of alcohol coming from inside the vehicle. The officer observed that the defendant's eyes were glassy and bloodshot, that his speech was slurred, and that it took him "awhile" to produce his registration. The defendant told the officer he had had "a few beers earlier in the day." When ordered to exit his car to perform field sobriety tests, the defendant appeared very unsteady on his feet. Officer Barry asked the defendant if he had any medical issues that might impact the field sobriety testing, and the defendant replied that he had a lower back injury for which he was taking medication. The officer explained the one-leg-stand test to the defendant, instructing him to lift one of his feet six inches off the ground, point his toes down, and count aloud until told to stop, for no more than thirty seconds. The defendant attempted the test twice, but both times was unable to keep his foot off the ground for more than three seconds. After the second attempt, the defendant told the officer, "I don't want to do this, just arrest me." He then admitted to the officer that he had had two beers early in the day, two more beers and a glass of wine at another location, and another beer and a shot of liquor at a third location. Based on these observations, Officer Barry formed an opinion that the defendant had operated a motor vehicle under the influence of an intoxicating beverage, and placed him under arrest.
Discussion . In order to be deemed ineffective, counsel must display "serious incompetency, inefficiency, or inattention ... falling measurably below that which might be expected from an ordinary fallible lawyer," such that counsel's behavior "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974). The defendant claims his trial counsel was ineffective and likely deprived him of a substantial ground of defense because: (1) counsel did not present evidence that Corvettes are "infamous" for their steering and suspension issues, which would have offered an alternative explanation for the defendant's erratic lane changes on the night of the arrest; (2) counsel did not submit medical records that could have explained why the defendant was unable to perform the one-leg-stand test; and (3) counsel did not allow the defendant to testify on his own behalf.
To support his first point, the defendant attached to his motion two articles, only one of which is specifically about Corvettes. The first article states that Corvettes are "highly maneuverable ... with hair-trigger steering," which detracts from the defendant's argument. The second article states that bad strut bearings, a broken steering rack, or worn ball joints might cause a car to "wander"; however, the defendant does not claim that his own vehicle was suffering from any such mechanical problems that night. As such, trial counsel cannot be said to have been ineffective and to have likely deprived the defendant of a substantial ground of defense for omitting evidence that Corvettes are "known to have bad steering and suspension."
Regarding the defendant's second point, although trial counsel did not submit any medical records in evidence, he successfully elicited testimony from Officer Barry that the defendant had told the officer he had a back injury and was taking medication for it. Far from displaying ineffectiveness, trial counsel's decision to present evidence of the defendant's physical condition through Office Barry's testimony rather than through the medical records appears to have been a reasonable strategic choice, as the medical records contained a statement that the defendant would "binge-drink" alcohol. To the defendant's third point, neither the trial record nor either of the defendant's affidavits establish the defendant's contention that his trial counsel did not allow him to testify.
In one affidavit, the defendant stated that his trial counsel "concluded the defense's case without calling me to the stand," and "[t]his was done very quickly, without my having the opportunity to fully understand the reasons...." (emphasis added); this suggests that the defendant did have at least some opportunity to discuss with his trial counsel whether or not he should testify. Additionally, the defendant's current attorney stated in an affidavit that he contacted the trial counsel, who told him "[the defendant] did not want to testify as [trial counsel and defendant both] thought that the [trial counsel's] cross examination of [Officer Barry] was enough to convince the jury of [the defendant's] innocence."
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There was also ample evidence of the defendant's intoxication. Aside from driving erratically and failing to perform the one-leg-stand test, the defendant also reeked of alcohol, had bloodshot eyes and slurred speech, and admitted to having had seven alcoholic beverages that day.
Order denying motion for new trial affirmed .