Opinion
18-P-1687
04-14-2020
COMMONWEALTH v. Evelyn PALKA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant, Evelyn Palka, of operating a motor vehicle while under the influence of intoxicating liquor (OUI). Thereafter, following a jury-waived trial pursuant to G. L. c. 278, § 11A, she was found guilty on the subsequent portion of the complaint charging OUI as a third offense, in violation of G. L. c. 90, § 24 (1) (a ) (1). The defendant appealed, and while her appeal was pending, she filed a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The motion was denied following a nonevidentiary hearing by the trial judge. Thereafter, the defendant's direct appeal was consolidated with her appeal from the denial of her motion for a new trial.
The judge also found the defendant responsible for possession of an open container of alcohol in a motor vehicle, in violation of G. L. c. 90, § 24I.
Although the defendant's brief makes no clear distinction between the issues raised in her direct appeal and those raised in her new trial motion, it appears that the following two issues are raised in both appeals. First, the defendant contends that she is entitled to a new trial on the ground that the prosecutor exposed the jury to extraneous and prejudicial information, and that the judge failed to conduct a proper inquiry into the matter. Second, she claims that the judge erred by instructing the jury that they were not to consider the lack of evidence of a breathalyzer test for or against either party. In her motion for a new trial the defendant raised one additional issue; she alleged that trial counsel provided ineffective assistance by failing to rebut consciousness of guilt evidence. For the reasons that follow, we affirm the judgments and the order denying the motion for a new trial.
Background. The defendant does not challenge the sufficiency of the Commonwealth's evidence. We therefore dispense with a detailed summary of the evidence presented at trial. It suffices to note that the jury could have found that on the day in question, June 2, 2015, the defendant drove her car, a Mercedes SUV, a short distance on Route 9 in Natick from the Bernardi Audi dealership, where she was employed, to Mitchell Gold and Bob Williams furniture store while under the influence of alcohol. The defendant was arrested at the furniture store after a coworker alerted the police to the defendant's condition and informed them of the defendant's whereabouts. The arresting officers observed that the defendant's eyes were glassy and bloodshot, that she was unsteady on her feet, and that she smelled of alcohol. Officer Christopher Showstead asked the defendant whether the SUV, which was parked outside the store, was hers. She answered, "No." When Officer Showstead asked the same question again, she answered, "Yes, I –- I was driving that car." There was also evidence that the defendant failed two sobriety tests, and that when the police searched the SUV they found an open Gatorade bottle containing a clear liquid that smelled of alcohol. In addition, an unopened "nip" bottle of alcohol was found in the defendant's purse.
Discussion. 1. Standard of review. The issues surrounding the jury's potential exposure to extraneous information and the judge's instruction to the jury on breathalyzer tests were not preserved. Thus, insofar as these two issues are raised in the defendant's direct appeal, our review is limited to determining whether there was error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Steed, 95 Mass. App. Ct. 463, 469 (2019). As we have noted, the defendant's new trial motion raises these same issues. Our review of the denial of the defendant's motion for a new trial on these grounds is slightly different. "[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ " Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). Given our conclusion that there was no error, any difference in the applicable standard of review is inconsequential as to these two claims. We review the defendant's claim of ineffective assistance of counsel to determine whether the denial of the new trial motion on that ground amounted to an abuse of discretion or error of law. See Duart, 477 Mass. at 634.
2. Extraneous material. Just prior to closing arguments, the prosecutor informed the judge that he was concerned the jury may have been exposed to extraneous information when, at various points during the trial, he opened his case file within the jury's line of sight. As the prosecutor explained, the offense was noted on the cover of the case file as "OUI-3rd." The exchange between the parties and the judge concerning the matter was as follows.
PROSECUTOR : "There's one additional issue that I need to alert the Court to, and in full candor, I can't say for certain that this did happen. I don't know. But essentially, throughout the trial I may have opened up the [case tracking unit] which, if you can see, shows OUI third offense."
JUDGE : "You may have opened it?"
PROSECUTOR : "So when I was in the process of the trial --"
JUDGE : "Uh-huh."
PROSECUTOR : "-- when I was obviously taking notes, what have you, I may have opened up the file. I don't know to what extent that that may have been observed. It was a -- it would have been [fleeting][ ] -- and again, I'm just letting --"
JUDGE : "Would you have -- she's bringing the jury around right now. Do you have any indication of an issue with that?"
DEFENSE COUNSEL [ ]: "No. I just -- he just raised it to me and I -- I let --"
JUDGE : "Okay. I don't think that -- I don't believe that to be an issue."
PROSECUTOR : "Thank you, Your Honor. I just had a concern. I just wanted to be --"
JUDGE : "Okay."
PROSECUTOR : "-- in full candor with the Court to let you know that .... And so for now, I will --"
...
JUDGE : "Do what?"
PROSECUTOR : "-- remove it."
We note that the Commonwealth's motion to correct the record so as to include the word "fleeting" was allowed.
Although the transcript attributes this statement to the prosecutor, the parties agree that it was made by trial counsel.
There was no further discussion of the issue at trial. Later, in connection with the defendant's motion for a new trial, trial counsel noted that the file also contained a notation "BT.18" that referred to the result of the defendant's breathalyzer test.
The defendant's primary argument is that the judge failed to follow prescribed procedures once she learned of the possibility of an extraneous influence on the jury. According to the defendant, as an initial matter, the judge should have conducted an individual voir dire of each juror to determine the likelihood that the material at issue reached one or more of the jurors. Although there was no request that the judge take steps to investigate, we acknowledge that it is often the better practice to conduct an inquiry at the time the issue arises. Additionally, assuming without deciding that one or more jurors read the notations at issue and understood what they meant, we acknowledge that the material could "raise[ ] a serious question of possible prejudice." Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 258 (2002), quoting Commonwealth v. Jackson, 376 Mass. 790, 800 (1978). We nonetheless conclude that a new trial is not warranted.
As the judge observed in her memorandum of decision and order denying the motion for a new trial, the defendant failed to meet her initial burden of showing that the jury actually were exposed to an extraneous influence. See Commonwealth v. Casey, 442 Mass. 1, 5 (2004), citing Commonwealth v. Fidler, 377 Mass. 192, 201 (1979). Our cases require "something more than mere speculation" in order to warrant a new trial. Commonwealth v. Dixon, 395 Mass. 149, 152 (1985), quoting United States v. Barshov, 733 F.2d 842, 851 (11th Cir, 1984), cert. denied, 469 U.S. 1158 (1985). Unlike the situation in Fredette, upon which the defendant relies, there was no actual report that the jury had been exposed to the notations on the prosecutor's case file. Rather, in an abundance of caution, the prosecutor expressed his concern about a potential problem. In any event, even if the defendant had met her initial burden, she has not shown that the alleged exposure would have had an impact on the jury's deliberations. See Dixon, 395 Mass. at 151-152. Contrary to the defendant's assertion, the evidence of impaired operation was overwhelming. Contrast Fredette, 56 Mass. App. Ct. at 260 (evidence was "far from overwhelming" and, therefore, failure to conduct voir dire of jury to determine extent of extraneous influence created substantial risk of miscarriage of justice). In the circumstances presented, we have confidence that the defendant was fairly tried by an impartial jury.
In Fredette, the jury informed the judge that one juror had watched a news broadcast about the case. See Fredette, 56 Mass. App. Ct. at 256. The judge allowed deliberations to continue. See id. A postverdict voir dire revealed the content of the broadcast: a news interview with the codefendant's mother in which she disparaged the defendant. See id. at 257. We held that the judge's failure to ascertain the content of the broadcast prior to allowing deliberations to continue created a substantial risk of a miscarriage of justice. See id. at 259-260.
2. Breathalyzer test instruction. The defendant claims that the judge erred by instructing the jury, in accordance with Commonwealth v. Downs, 53 Mass. App. Ct. 195, 197-201 (2001), that they should disregard the lack of evidence of a breathalyzer test. The defendant's argument is twofold; first, she contends that she was not given a meaningful opportunity to object to the instruction, and second, relying on Commonwealth v. Wolfe, 478 Mass. 142 (2017), a case decided after the trial in this case concluded, she claims that the judge should not have given the instruction because she did not request it. In Wolfe, the Supreme Judicial Court partially overruled Downs and held that at a jury trial on a charge of OUI, a judge should not give a jury instruction that specifically mentions the absence of breathalyzer or other alcohol test evidence unless the defendant requests it. See Wolfe, 478 Mass. at 148 & n.10. We are not persuaded by either argument.
The full instruction was as follows: "You are not to mention or consider in any way whatsoever either for or against either side that there is no evidence of a breathalyzer. Do not consider it in any way, do not mention it, and put it completely out of your mind."
First, there is no merit to the defendant's claim that trial counsel lacked the opportunity to object. While it is true that during the charge conference, the judge stated, "I am going to give the [Downs ] instruction. Every time I don't give it, they ask it as a question, so I'm just going to give it," it does not follow that trial counsel was somehow precluded from lodging an objection. Trial counsel could have objected either when the judge announced her intention to provide the Downs instruction or when the instruction was given. He did not do so.
Second, the argument that the Supreme Judicial Court's decision in Wolfe compels us to reverse the defendant's convictions fails if only because the decision cannot be applied retroactively. The court made clear that the decision applies only prospectively. See Wolfe, 478 Mass. at 149 ("We emphasize that this conclusion, although rooted in constitutional concerns, is not a new constitutional rule requiring retroactive application").
3. Ineffective assistance of counsel. Based on Officer Showstead's testimony at trial that the defendant, when asked, initially denied that the SUV was hers and then, when asked again, stated, "Yes, I – I was driving that car," the prosecutor asked the judge to instruct the jury on consciousness of guilt and the judge agreed to do so over the defendant's objection. During closing argument, the prosecutor drew the jury's attention to the defendant's responses to Officer Showstead's questions.
The judge instructed the jury that they were allowed to consider "certain false statements" made by the defendant prior to her arrest and whether they "indicate[d] feelings of guilt by the defendant and whether, in turn, such feelings of guilt might tend to show actual guilt on this charge."
The defendant contends that trial counsel rendered ineffective assistance by failing to introduce evidence that she was not the legal owner of the SUV. She claims, and it appears undisputed, that the car was registered to her partner. This evidence, she maintains, would have rebutted the inference of consciousness of guilt because it showed that when she told the police that the SUV was not hers, she was being truthful.
The defendant's partner, Christine Loughlin, submitted an affidavit in support of the new trial motion in which she averred that during the lunch break on the day of trial, she and the defendant spoke with trial counsel and asked him to clarify that Loughlin was the registered owner of the SUV and that the defendant, when speaking to the officers, had referred only to the SUV's being in her possession, not to its being her property. Loughlin offered to testify to the fact that the SUV belonged to her. In his affidavit, trial counsel stated that in deciding not to call Loughlin or otherwise clarify the issue of the SUV's ownership, it seemed to him that the evidence would be relevant only as to whether the defendant had been operating the SUV, and that it would not be very helpful. Trial counsel further averred that it did not occur to him that the evidence could be relevant to the issue of consciousness of guilt, and that he regretted the decision.
In order to obtain a new trial on the grounds of ineffective assistance of counsel, a defendant must show that trial counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1978). Where, as here, a claim of ineffective assistance of counsel "is based on a tactical or strategic decision," we ask "whether the decision was ‘manifestly unreasonable’ when made." Commonwealth v. Wentworth, 482 Mass. 664, 678 (2019), quoting Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Martin, 467 Mass. 291, 316 (2014).
We agree with the judge that the decision not to introduce evidence of the legal ownership of the SUV was not manifestly unreasonable or prejudicial. See Wentworth, 482 Mass. at 678. As the judge explained in her memorandum of decision and order denying the motion for a new trial, the consciousness of guilt instruction was given because the defendant drove the SUV and denied that it was hers, and thus evidence that the defendant was not the legal owner of the car had no bearing on her decision to give the instruction. We agree with the judge's rationale and conclude that she did not abuse her discretion in rejecting the defendant's ineffective assistance claim and in denying the motion for a new trial on this basis
Judgments affirmed.
Order denying motion for new trial affirmed.