Opinion
14-P-1855
04-18-2017
COMMONWEALTH v. Edward J. SHEATS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of operating under the influence of intoxicating liquor (OUI) and negligent operation of a motor vehicle. After a jury-waived trial, the judge found the defendant guilty of OUI second offense. On appeal from the judgments and the order denying his motion for new trial, he claims various errors occurred at trial and that he received ineffective assistance of counsel. We affirm.
The defendant was also arraigned on one count of a marked lanes violation under G. L. c. 89, § 4A, but the judge found the defendant not responsible.
1. Sufficiency of the evidence. The defendant claims that the Commonwealth provided insufficient evidence to prove OUI under the per se theory. After reviewing the evidence in the light most favorable to the Commonwealth, we disagree. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
Assuming the jury found the defendant guilty on only a per se theory, the Commonwealth presented sufficient evidence on that theory to support the defendant's conviction. Here, Sergeant Mawn testified, without objection, to the standard protocol for use of the breathalyzer machine, and the factors applied and maintenance the machine goes through in order to measure a blood alcohol content (BAC) level. The defendant now claims that the explanations provided by both Sergeant Mawn and Sergeant O'Leary were insufficient to establish a causal connection between the defendant's breath sample and his .11 BAC level reported from that sample, thereby rendering the Commonwealth's evidence of intoxication insufficient. We disagree.
This is supported by the docket, but the verdict slip could not be located.
A breathalyzer test is admissible and relevant in order to establish a violation of G. L. c. 90, § 24(1)(a )(1), so long as the test is administered by a "certified operator using a certified infrared breath-testing device" (emphasis supplied). Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011), quoting from G. L. c. 90, § 24K. Sergeant O'Leary testified that he is certified to administer the breath test. He also testified that the breathalyzer machine was certified and working properly at the time he administered the test to the defendant.
The per se violation can be satisfied by a read out from the BAC machine of .08 or higher. See Commonwealth v. Colturi, 448 Mass. 809, 817 (2007). This was permissible because Sergeants Mawn's and O'Leary's testimony demonstrated compliance with the regulations that the Secretary of the Executive Office of Public Safety and Security has put into place "regarding satisfactory methods, techniques and criteria for the conduct of breathalyzer tests." Commonwealth v. Steele, 455 Mass. 209, 212 (2009), quoting from G. L. c. 90, § 24K. The Commonwealth also introduced a periodic test report showing that the breath test machine used on the defendant was in proper working order, the breath test result form for the defendant, and records from the Office of Alcohol Testing. A reasonable juror could infer that the breath test administered by a certified operator, on a certified machine, would yield reliable evidence that the defendant's blood alcohol level exceeded the permissible limit.
To the extent the defendant claims the results of the breathalyzer test should not have been admitted, that claim does not inform the sufficiency equation. The "constitutional sufficiency of the evidence under Commonwealth v. Latimore, 378 Mass. [at] 677-678..., is to be measured upon that which was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
2. Booking video. The defendant also claims that the judge erred in permitting the audio portion of the booking video recording to be played for the jury. The defendant preserved this claim in his motion in limine. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016). Therefore, we review for error, and if there was error, whether that error was prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Ordinarily, questions asked of an arrestee at booking are standard questions used for record keeping purposes, falling outside the need for Miranda warnings. See Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) ; Commonwealth v. Woods, 419 Mass. 366, 372-373 (1995). Here, one of the routine suicide prevention questions inquired if the defendant had consumed any alcohol that day. The defendant replied, "Obviously, or I wouldn't be here." Due to the circumstances of this case, although not intended, this question was reasonably likely to elicit an incriminating response, and did so. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Because the defendant did not received Miranda warnings before the time of booking, and his answer was testimonial, the admission of the audio portion of the booking video was error. See Pennsylvania v. Muniz, 496 U.S. at 600 ; Commonwealth v. Woods, 419 Mass. at 373.
Because the admission of the audio recording was error, we review to determine whether the error was prejudicial. "An error is not prejudicial if it ‘did not influence the jury, or had but very slight effect’; however, if we cannot find ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,’ then it is prejudicial." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting from Commonwealth v. Flebotte, 417 Mass. at 353. Here, there was a multitude of evidence, apart from the admission made at booking, that supported the premise that the defendant had consumed alcohol, including his statement on scene that he had had "two or four" beers. As the improper admission was merely cumulative of other properly admitted evidence, the error was not prejudicial.
3. Motion for new trial. Finally, the defendant claims that the motion judge, who was also the trial judge, erred in denying his motion for new trial based on claims of ineffective assistance of his trial counsel. We disagree. We review the denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). When the motion judge was also the trial judge, as in this case, we extend special deference to the judge's decision. See ibid.
a. OUI. "Where, as here, the claim is that defense counsel committed a tactical error, the defendant must demonstrate that defense counsel's tactical judgment was manifestly unreasonable." Commonwealth v. Finstein, 426 Mass. 200, 203 (1997). The defendant's primary contention is that his counsel was ineffective for not retaining an expert on the breath test machine, instead trying to elicit information from the keeper of the records, Sergeant Mawn and the breath test administrator, Sergeant O'Leary. The judge rejected this claim.
In his affidavit in support of the defendant's motion pursuant to Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001), trial counsel admitted that he did not seek an expert for the breathalyzer results, and specifically pursued the information through cross-examination of the officers and through testimony of the defendant. However, "[i]nvariably the lawyer who refights a campaign on the written record finds ways to fight it better." Commonwealth v. McGann, 20 Mass. App. Ct. 59, 61 (1985). Defense counsel attempted to elicit information that would undermine the machine's processes and results, but he did not receive the testimony the defendant would have preferred. Even though unsuccessful, this strategy was not "manifestly unreasonable." Commonwealth v. Parker, 420 Mass. 242, 248 n.7 (1995).
Similarly, the defendant's claim of ineffective assistance due to trial counsel's failure to further delve into his claimed medical condition, i.e., GERD, does not persuade us, as he failed to present any evidence that he was suffering from such an attack at the time of the breathalyzer administration.
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b. Negligent operation. As with his defense of the OUI charge, the defendant also claims counsel was ineffective relative to the charge of negligent operation. Again, we disagree. The Commonwealth presented compelling evidence of the defendant's having operated his vehicle negligently. Officer O'Neal witnessed the defendant driving completely over both the fog line, as well as the double center yellow line. He also testified that there were other vehicles traveling on the roadway. Because the statute only requires that the defendant "operated ‘negligently so that the lives or safety of the public might be endangered,’ " there was sufficient evidence to find him guilty of negligent operation. Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004), quoting from G. L. c. 90, § 24(2)(a ).
The defendant claims that counsel should have asked more questions regarding the defendant's dogs being in his vehicle and causing a momentary distraction, but not one that resulted in negligent operation. During cross-examination of the defendant, he did admit he "was distracted a little bit." On this record, it was not manifestly unreasonable for counsel to not further probe the defendant's level of distraction vis-à -vis the dogs, as this might have resulted in further evidence supporting the defendant's guilt. The judge did not abuse his discretion in denying the motion for new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.