Opinion
14-P-1610
11-05-2015
COMMONWEALTH v. SHERRY E. MANN.
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
After a bench trial, the defendant, Sherry E. Mann, was found guilty of unlawful possession of a class C substance and negligent operation of a motor vehicle. See G. L. c. 94C, § 34; G. L. c. 90, § 24(2)(a). On appeal, the defendant argues that (1) the judge erred in denying her motion for required finding of not guilty, and (2) trial counsel's failure to introduce her prescription in evidence amounted to ineffective assistance of counsel. We affirm.
(1.) Sufficiency of evidence. We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). a. Possession. To sustain the conviction, the Commonwealth must prove that the defendant knowingly or intentionally possessed a class C substance. See G. L. c. 94C, § 34. The defendant admitted to having Lorazepam, a class C controlled substance, in her possession, but claimed that it was prescribed. "If a defendant relies on a prescription as a defense or justification . . . [s]he must produce it." Commonwealth v. Pero, 402 Mass. 476, 481 (1988). Although she testified that she had a valid prescription, she failed to produce one at trial. The judge was not required to credit her testimony, even if accepted for its hearsay purpose. The evidence was sufficient.
The Commonwealth objected to the defendant's testimony on hearsay grounds. Defense counsel responded, "The prescription, itself, is not what we're introducing. We're introducing how she came by it." The judge allowed some testimony but stated, "I don't think that's going to matter." We need not reach the evidentiary question in light of our decision.
b. Negligent operation. To sustain a conviction of driving to endanger, the Commonwealth must prove that the defendant operated a motor vehicle negligently on a public way so as to endanger the lives or safety of the public. See G. L. c. 90, § 24(2)(a); Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 34 (2007). The statute requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004).
The evidence that the defendant negligently operated a motor vehicle was sufficient. See ibid. The defendant took Zyrtec and Lorazepam that morning, was distracted by either a banana or the clock, was "tailgating," and hit another car from behind. She testified that "[she] was not paying attention and hit a car." The defendant's distracted driving occurred on the day before Thanksgiving, when there were "extra people" on the road. See id. at 922-923 (defendant might have endangered safety of public by speeding on holiday afternoon in thickly settled neighborhood). "The evidence of the defendant's behavior, when viewed in relation to these attendant circumstances, was sufficient to prove that [her] conduct might have endangered the lives of the public." Ferreira, supra at 35.
One of the responding police officers noted a steak knife lodged in the dashboard of the defendant's car. He testified that the defendant said she liked to cut fruit while driving.
(2.) Ineffective assistance of counsel. The defendant claims that trial counsel's failure to introduce a valid prescription for Lorazepam at trial constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, the defendant must demonstrate that there was serious incompetency, inefficiency, or inattention of counsel falling measurably below the conduct of an ordinary fallible lawyer, and, if so, that this conduct deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Bonnett, 472 Mass. 827, 832 (2015).
A claim for ineffective assistance raised on direct appeal is "the weakest form of such a challenge." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "Because the defendant raises [this] claim[] for the first time on direct appeal, [its] factual basis must appear 'indisputably on the trial record' for us to resolve [it]." Commonwealth v. Vera, 88 Mass. App. Ct. 313, 323 (2015), quoting from Commonwealth v. Dargon, 457 Mass. 387, 403 (2010). A valid prescription for Lorazepam was not produced. At this juncture, the defendant still has not shown that the prescription exists. In the absence of such evidence, counsel has not been shown to be ineffective, nor has the defendant been deprived of a substantial ground of defense.
Judgments affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 5, 2015.