Opinion
14-P-1959
05-05-2016
COMMONWEALTH v. ARIELLE TANOY PEREIRA.
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 was convicted of operating while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24(1)(a)(1), and leaving the scene of an accident causing property damage, in violation of G. L. c. 90, § 24(2). She now appeals.
The first issue she raises is the failure of the police officer who issued the citation against her to give her a copy at the time and place of the violation. See G. L. c. 90C, § 2. This issue was not raised below. Read broadly, the defendant argues both that it was an error creating a substantial risk of a miscarriage of justice and that her attorney erred in failing to raise this issue and that amounted to ineffective assistance of counsel.
As relevant here, the statute makes failure to give the violator a citation at the scene a defense at trial, but not in cases where the judge finds that a circumstance, not inconsistent with the purpose of the statute, justifies the failure. When a claim of ineffective assistance of counsel is raised on direct appeal, we will only grant relief when that ineffectiveness "appears indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). We have long stated our preference that such claims be raised in the first instance in the trial court. See Zinser, supra at 810. Here, even assuming counsel's failure to move to dismiss the complaint due to noncompliance with G. L. c. 90C, § 2, fell below what might have been expected of an ordinary fallible lawyer, meeting the first prong of the Saferian test, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the question whether that failure deprived the defendant of a substantial ground of defense cannot be determined without factual development concerning the reasons the officer did not issue the citation at the scene. Although there is evidence of the presence of the defendant's mother, a passenger in the car with whom the defendant was having a dispute, and the two witnesses whose hedges the defendant's car had crashed through while she was at the wheel -- circumstances that might have supplied justification for dispersing the group and sending the defendant home rather than issuing a citation -- the question of justification should not be answered without a more developed record. Put another way, ineffective assistance does not appear unmistakably on this record, and so the defendant has not demonstrated an entitlement to relief on this ground on her direct appeal.
Assuming this claim of error is subject to review for a substantial risk of a miscarriage of justice, see Commonwealth v. Carapellucci, 429 Mass. 579, 582 n.2 (1999), without determining whether the failure to issue a citation was even improper, we cannot determine whether the failure to raise that claim created a substantial risk of a miscarriage of justice. The facts surrounding the decision of the officer not to issue the citation are, again, underdeveloped on this record.
On this record, the evidence was sufficient to support both of the defendant's convictions. She argues that she did not leave the scene of the accident, because she departed the scene for only seventeen to nineteen minutes before returning. Her return to the scene does not negate her having left the scene, and there was sufficient evidence to support a verdict of guilt with respect to each element of the offense.
The defendant asserts that she faced an emergency situation that required her to go to her mother's house two doors away from the accident to wash alcohol, thrown by the passenger in the car, out of her eyes. Assuming this would be a valid defense to the charge, this evidence was before the jury, and they were not bound to accept it.
Finally, given the officer's testimony that he had formed the conclusion that the defendant "was impaired by the alcohol," the question whether he improperly opined on the ultimate issue in the case is a close one. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) ("[A] lay witness in a case charging operation of a motor vehicle while under the influence of alcohol . . . may not opine . . . whether the defendant's consumption of alcohol diminished [her] ability to operate a motor vehicle safely"). While we think the officer did not cross the line, and that, therefore, there was no error, even if we are mistaken and the admission of the opinion was error, we would conclude that it created no substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Rubin, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 5, 2016.