Opinion
No. 15–P–1651.
11-09-2016
COMMONWEALTH v. Nicholas D. POTO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After his conviction of operating a motor vehicle under the influence of drugs (OUI), fourth offense, was affirmed by this court, the defendant filed a motion for new trial. That motion was denied without an evidentiary hearing, which the defendant now argues was an abuse of discretion. We affirm.
Commonwealth v. Poto, 87 Mass.App.Ct. 1117 (2015).
The defendant was arrested on August 18, 2009, after a State police trooper was nearly struck by the defendant's vehicle as the trooper helped another motorist change a tire in the breakdown lane of Route 128. The trooper initiated a motor vehicle stop of the defendant and noted that he was slow to pull over. When he approached the vehicle, the trooper could smell a strong odor of burnt marijuana, and the defendant “fumbled” through paperwork when asked for his driver's license and registration. When he ultimately produced only a Maine identification card, the trooper ordered him to exit the vehicle and later arrested him for OUI.
The trooper estimated that the defendant took thirty seconds to pull over.
The defendant argues that he was entitled to a new trial because his trial counsel was ineffective in failing to move to suppress observations made by the trooper immediately following the exit order. The defendant maintains that the exit order was predicated solely on the smell of burnt marijuana coming from the vehicle, which he contends was insufficient justification for the order. See Commonwealth v. Cruz, 459 Mass. 459, 460–461 (2011). The defendant further argues that all evidence stemming from the exit order should have been suppressed. See ibid.
Subsequent evidence included incriminating statements the defendant made to the trooper, observations made by the trooper, the defendant's unsatisfactory performance of field sobriety tests, and a search of the defendant that yielded a knife and three Vicodin pills.
The decision whether to hold an evidentiary hearing on a motion for new trial is within the discretion of the motion judge. See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). When a motion for new trial presents a “substantial issue” and is “supported by a substantial evidentiary showing,” Commonwealth v.. Stewart, 383 Mass. 253, 260 (1981), a judge should hold an evidentiary hearing to determine whether “justice may not have been done.” Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). In the absence of a substantial issue, “[i]t is well established that a judge has discretion to deny a new trial motion on the affidavits.” Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394 (2012).
To establish ineffective assistance of counsel, the defendant must show: (1) “there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer”; and (2) that his attorney's behavior “has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In the context of failing to file a motion to suppress, “the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004). The defendant must further show that “the Commonwealth would not have been able to prove that [the exit order] was constitutional.” Id. at 93.
We conclude that the judge did not abuse his discretion in declining to hold an evidentiary hearing. It is unnecessary to consider whether, in 2010, defense counsel should have anticipated the decision in Cruz, supra, because even if Cruz had applied to the defendant, the judge properly noted “there was ample other evidence” to support the exit order in addition to the odor of burnt marijuana. The trooper testified that he witnessed the defendant driving erratically and crossing into the breakdown lane, where he nearly hit the trooper. See Commonwealth v. Jewett, 471 Mass. 624, 636 (2015) (erratic driving and crossing lane markings are among “many of the classic indicia of impairment”). The defendant then reacted slowly when the trooper attempted to pull him over. When the trooper approached the defendant's vehicle, he smelled a strong odor of freshly burnt marijuana, and when he asked the defendant for his license and registration, the defendant struggled to comply and ultimately produced only a Maine identification card.
The trooper testified that the defendant's vehicle was close enough to him that he felt the air from the vehicle move his clothing.
All of this took place prior to the trooper's exit order, and supplied the trooper with sufficient reasonable suspicion that the defendant was operating under the influence when the trooper issued the exit order. See Commonwealth v. Blais, 428 Mass. 294, 297–298 (1998) ; Commonwealth v. Bostock, 450 Mass. 616, 621 (2008).