Opinion
18-P-140
03-27-2019
COMMONWEALTH v. DANIEL F. PORRAZZO.
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 jury trial, the defendant was convicted of operating a motor vehicle while under the influence of an intoxicating liquor (OUI). He appeals from his conviction and from the order denying his "motion to dismiss, or, in the alternative, for a new trial," arguing that the Commonwealth failed to produce exculpatory evidence, that he received ineffective assistance of counsel, and that the judge erred by admitting breathalyzer test results. We affirm.
The defendant waived his right to a jury at the "second offense" portion of the trial. Without taking evidence or conducting what would qualify as an adequate plea colloquy, the judge then sentenced the defendant to a concurrent sixty-day sentence "[a]s to the second offense." On appeal the Commonwealth acknowledges that the procedure employed by the judge did not meet the requirements for a guilty plea or a trial based on stipulated evidence. While we agree with the Commonwealth's concession, see Commonwealth v. Orben, 53 Mass. App. Ct. 700, 706-707 (2002), no conviction resulted from the error. The record does not reflect that the defendant was ever charged with OUI, second offense, and the judge made no finding of guilt prior to sentencing. Furthermore, because the sentence on the second offense was concurrent with the sentence on the primary conviction, the defendant suffered no prejudice by its imposition. In any event, as both sentences have been served, the issue, which has not been raised by the defendant, is moot.
Background. Around 1:25 A.M. on October 25, 2011, Boston Police Officer Michael Boulger heard a "loud banging noise" as he was stopped near City Hall. He turned and saw the defendant's car "pressed up against" a security booth on City Hall Plaza. The security booth was "tilted over," and there was "extensive damage" to the car.
After the defendant backed out into the street, Boulger stopped him and observed two empty beer cans in the front passenger area of the car. He also noticed that the defendant had glassy, bloodshot eyes, slurred his speech, smelled moderately of alcohol, and, when he stepped out of the car, was unsteady on his feet. Boulger administered the "nine-point walk and turn" field sobriety test, during which the defendant stumbled and had trouble walking a straight line.
Boulger placed the defendant under arrest and transported him to the police station. There, Sergeant Adam Mazzola administered a breathalyzer test using the testing instrument known as Alcotest 7110. The defendant's blood alcohol content registered 0.08.
Discussion. 1. Failure to disclose evidence. The defendant contends that the Commonwealth failed to disclose four pieces of exculpatory evidence: (1) a booking video recording, (2) an accident video recording, (3) a color photograph of him at booking, and (4) documents from the Office of Alcohol Testing (OAT) relating to the breathalyzer device's certification procedures and protocols. It is the defendant's burden to prove that this evidence was both undisclosed and exculpatory and that he was prejudiced by the nondisclosure. See Commonwealth v. Williams, 455 Mass. 706, 714 (2010); Commonwealth v. Healy, 438 Mass. 672, 679-680 (2003). If the defendant specifically requested the evidence, he must "demonstrate that a substantial basis exists for claiming prejudice." Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992). If he made no request, he must meet the higher burden of proving that the evidence would have been "a real factor in the jury's deliberations." Id. at 413. Because the defendant's claim is constitutionally based, we "will exercise [our] own judgment on the ultimate factual as well as legal conclusions." Healy, supra at 678, quoting Commonwealth v. Salvati, 420 Mass. 499, 500 (1995).
The defendant did not prove that the first two items, neither of which he specifically requested, were either undisclosed or exculpatory. The Commonwealth represented that no booking video recording exists, and the defendant offered no evidence proving otherwise. Nor has he explained what exculpatory material would be contained on any such video recording.
Officers testified at trial that there was no video surveillance in the booking area at that time.
With regard to the accident video recording, the Commonwealth provided a copy of it to the defendant's trial counsel. Though the defendant now claims that the copy was corrupted -- because his appellate counsel was allegedly unable to play it in September 2017 -- he offered no evidence showing that it was corrupted at the time of trial in December 2013. In fact, trial counsel clearly knew about the video recording, as he explored that topic with Boulger during cross-examination. Moreover, even assuming that the video recording was undisclosed, the defendant fails to explain why it was exculpatory or why it would have been "a real factor in the jury's deliberations." Tucceri, 412 Mass. at 413.
Likewise, the defendant failed to show that the color booking photograph, which he did not specifically request, was exculpatory. The defendant did not submit the photograph with his motion. He only speculates that the photograph could be exculpatory as it might show that his eyes were not red. Speculation is insufficient to meet the defendant's burden. See Commonwealth v. Kee, 449 Mass. 550, 554-555 (2007).
With regard to the OAT documents, the Commonwealth concedes that it did not disclose at least some of the material requested. But the defendant did not renew his request for the documents and submit them with his motion; thus he has not met his burden of showing that they were exculpatory or that "a substantial basis exists for claiming prejudice." Tucceri, 412 Mass. at 412. The defendant speculates that the documents were exculpatory based on the decision in Commonwealth vs. Ananias, Mass. Dist. Ct., No. 1248 CR 1075 (Feb. 16, 2017), which found flaws in the certification procedures employed by OAT for the Alcotest 9510. But the defendant's test results were produced by a different device, the Alcotest 7110, and he offered no evidence that the certification procedures for the Alcotest 7110 contained the same flaws as those for the Alcotest 9510. See Kee, 449 Mass. at 555, quoting Commonwealth v. Dinkins, 440 Mass. 715, 718 (2004) ("A claim that the evidence 'could have' exonerated [the defendant] is speculative at best and is not the equivalent of 'concrete evidence'"). We note also that the Supreme Judicial Court has upheld the admission of test results from the Alcotest 7110, concluding that the results were scientifically reliable. See Commonwealth v. Camblin, 478 Mass. 469, 470 (2017).
Trial counsel requested numerous categories of OAT documents, many of which the Commonwealth says it disclosed. The defendant has not identified with any particularity which documents were disclosed and which were not.
2. Ineffective assistance of counsel. The defendant argues that his trial attorney committed numerous errors, depriving him of his right to effective assistance of counsel. Under the familiar test governing ineffective assistance claims, the defendant has the burden of proving that counsel's performance fell "measurably below that which might be expected from an ordinarily fallible lawyer" and that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant has not met this burden.
The defendant also claims that his first attorney, whom he employed prior to trial, withheld the case file over a fee dispute. Even if true, the defendant has not explained how this prejudiced him.
We begin by noting that the defendant did not submit an affidavit from trial counsel. "Without that affidavit, we have only the defendant's self-serving statements regarding trial counsel's strategy." Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 870 (2005). See Commonwealth v. Rice, 441 Mass. 291, 303-304 (2004). The defendant's claim thus presents "the weakest form of [an ineffective assistance] challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
The defendant's arguments all fail in any event because he has not demonstrated that counsel's alleged errors deprived him of a substantial ground of defense. Several of his arguments fall in the category of counsel's general unpreparedness. As to all but one of those arguments, the defendant offers no explanation as to how counsel's alleged unpreparedness prejudiced him. As to the remaining argument -- that counsel did not adequately prepare the defendant to testify -- the defendant's only claim of prejudice is that counsel did not specifically elicit that the defendant told Boulger he was worried about performing the sobriety test because he was sore from lifting weights. But the defendant testified to that effect regardless. He has therefore failed to show that better preparation by counsel might have accomplished something material for his defense.
Specifically, the defendant fails to explain how he was prejudiced by counsel's allegedly bringing the wrong case file to trial, conducting inadequate discovery, and failing to advise the defendant of his appellate rights.
The defendant's other arguments concern counsel's trial performance. Even assuming that counsel's decisions were "so manifestly unreasonable as to be unprotected by the labels of 'trial strategy' or 'trial tactics,'" Commonwealth v. Adams, 374 Mass. 722, 728 (1978), the defendant has failed to demonstrate that those decisions deprived him of a substantial ground of defense. We address the defendant's arguments briefly in turn.
First, the defendant claims that counsel did not reach out to a witness who would testify that the defendant was sober when he dropped that person off "minutes" before the accident. But the defendant's own testimony was that he picked the person up at 8:30 P.M. and dropped him off in Groton; the accident occurred hours later, at around 1:25 A.M.
Second, the defendant claims that counsel failed to object when the prosecutor misrepresented in her opening statement that twelve empty beer cans were found in the defendant's car. In his own opening statement, however, counsel corrected the misrepresentation, stating that the evidence would show that "there were . . . two empty cans." And Boulger did in fact testify that he observed "two empty beer cans."
Third, the defendant claims that counsel did not take advantage of two avenues of impeachment: (1) counsel failed to impeach Boulger about an alleged inconsistency between his testimony that he immediately saw the empty beer cans and the statement in his police report that he found the cans after an inventory search, and (2) counsel failed to impeach Mazzola about the functionality of the breathalyzer device. "Generally, failure to impeach a witness does not amount to ineffective assistance of counsel." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Here, the inconsistency, if any, between Boulger's testimony and his police report was minor and immaterial. See Commonwealth v. Leary, 92 Mass. App. Ct. 332, 346 (2017). Regarding the functionality of the breathalyzer, the only available impeachment evidence was the defendant's own testimony that the instrument was not working properly, which the jury heard. Thus, counsel did not forgo "some obviously powerful form of impeachment" that "would likely have affected the jury's conclusion." Fisher, supra.
Fourth, the defendant claims that counsel should have moved for a required finding of not guilty due to the sparse evidence of operation on a public way. The evidence was more than sufficient, however, for the jury to conclude that the Commonwealth proved this element of the offense.
Fifth, the defendant claims that counsel should have done more to determine the potential impact of a dismissed juror's interaction with other jurors. The judge excused one of the jurors after he revealed that he worked at City Hall and had repaired the security booth after the accident. The defendant contends that counsel should have inquired whether the dismissed juror discussed his experience with the remaining jurors. There was no dispute that the accident occurred, however, or that the security booth was damaged. The defendant fails to identify anything prejudicial that the dismissed juror might have disclosed that was likely to have affected the remaining jurors' determination whether the defendant was operating while under the influence.
Finally, the defendant claims that counsel should have objected to the judge's answer to a jury question. During their deliberations the jury raised the question: "Is a blood alcohol reading from a machine sufficient evidence to convict by itself?" The judge responded, "[Y]ou are to consider all of the evidence admitted in this case. However, no matter what the reading is, the breath test is not sufficient by itself to prove that the defendant was under the influence of alcohol." We see no error in the judge's answer, which was a proper restatement of the original instruction. As there was no error, counsel was not ineffective for failing to object.
The judge had previously instructed: "You may also consider whether a breath test showed that the defendant had consumed any alcohol. However, no matter what the reading is, the breath test is not sufficient by itself to prove the defendant was under the influence of alcohol."
3. Admission of breathalyzer results. The defendant argues that the judge abused her discretion by allowing the officer who was in charge of calibrating the breathalyzer to testify after Mazzola testified about the breathalyzer results, thereby allowing the results to be admitted without the requisite foundation on calibration. The judge essentially took Mazzola's testimony de bene, and the defendant does not contest that the Commonwealth ultimately demonstrated that the breathalyzer was in compliance with the pertinent regulations. See Commonwealth v. Costa, 88 Mass. App. Ct. 750, 750-751 (2015). We discern no abuse of discretion or prejudice. Cf. Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 355 (2013) (evidence may be admitted de bene, subject to motion to strike if necessary foundation not supplied).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Green, C.J., Shin & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 27, 2019.