Opinion
13-P-1968
12-18-2014
COMMONWEALTH v. WARREN C. MODES.
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
After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. After a bench trial, the defendant was convicted of the subsequent offense portion of his operating while under the influence charge. On appeal, he claims he received ineffective assistance of counsel. We affirm.
For the first time on appeal, the defendant makes a variety of claims all focused on his assertion that he received ineffective assistance at trial. "[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). "A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by a trial judge." Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). Here, the claims raised do not appear indisputably on the record. For example, we are without any information from trial counsel as to whether his acts or omissions were part of a considered strategy. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Even more importantly, we are without findings from the trial judge as to the probable impact of those decisions in the event they were determined to be manifestly unreasonable, see Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), and whether "better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The defendant should have pursued a motion for new trial in the trial court to alleviate these hurdles. See Commonwealth v. Zinser, supra at 810-812. In any event, we conclude that none of the defendant's claims created a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) (if counsel's omission does not present a substantial risk of a miscarriage of justice, no basis for an ineffective assistance of counsel claim).
1. Opinion testimony. The defendant claims counsel should have objected to Sergeant Mason's expert opinion testimony. In general, opinion testimony from an officer who has a significant opportunity to observe a defendant's sobriety is admissible. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994). Here, however, Mason touched upon the ultimate issue to be decided by the jury, i.e., whether the defendant operated a motor vehicle while under the influence, and therefore went beyond permissible opinion as to the defendant's lack of sobriety. See Commonwealth v. Canty, 466 Mass. 535, 544-545 (2013). Despite this, we are not persuaded that the error created a substantial risk of a miscarriage of justice. The opinion added little to the ample evidence of intoxication, which included the defendant's erratic operation, his bloodshot and glassy eyes, the odor of alcohol emanating from him, his slurred speech, his unsteadiness on his feet, his inability to follow directions, his failure of the field sobriety tests, and his admission to drinking alcohol.
We note as well that trial counsel may have believed, reasonably, that an objection accompanied by a motion to strike the testimony would call greater attention to it.
2. Booking DVD. The defendant claims counsel failed to timely object to a portion of the booking digital video disc (DVD) during which Sergeant Mason told the defendant that he did not believe the defendant was telling the truth about the amount of alcohol the defendant claimed to have consumed. This too did not result in a substantial risk of a miscarriage of justice. Having observed the defendant's numerous indicia of intoxication, Mason's opinion that the defendant was minimizing his alcohol consumption would not have impermissibly swayed the jury. Indeed, had Mason shared the defendant's view, it is unlikely Mason would have arrested the defendant for the offense. In any event, the DVD permitted the defendant to share his view of the matter both at the time of the incident and again during his trial testimony.
The defendant further used the DVD to his advantage by arguing in closing that the DVD showed that he was not slurring his words, was clear, and "didn't deviate from what he told the officer, when he was stopped, in regard to the number of beers that he drank during the evening."
3. The defendant's hip condition. The defendant also claims that counsel failed to admit the defendant's medical records to corroborate his hip condition. While the defendant was able to testify that he had a chronic condition involving his hip, a condition that affected his balance, he was not permitted to state (due to a hearsay objection) what he had been told the condition was. Although the defendant did not report to Mason that he suffered any physical impairments that night, the judge allowed the defendant to demonstrate his "waddl[ing]" gait to the jury. Furthermore, in the booking DVD, the defendant revealed that he suffered from tendonitis and a "bum" knee. As such, the medical records would have added little to establish his condition, which he made no mention of at the appropriate juncture.
4. Jury empanelment. Finally, the defendant claims that counsel should have renewed his request for additional voir dire questions relating to alcohol and operating while under the influence. We cannot conclude that this resulted in any miscarriage of justice. The defendant had the juror questionnaires, which disclosed potential areas of bias. Also, the judge asked the voir dire questions required by G. L. c. 234, § 28. After questioning, two potential jurors came forward. One admitted her bias, and she was excused. Another disclosed that her husband had an arrest record. Counsel asked her if she belonged to any organizations like Mothers Against Drunk Driving, which she did not, and she ultimately sat as a juror. No other juror came forward. The defendant has failed to show that additional questions would have made any difference in the outcome.
Judgment affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 18, 2014.