Opinion
10-P-2148
12-05-2011
COMMONWEALTH v. PATRICK G. WAYNE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction after a jury-waived trial of operating under the influence of alcohol.
The defendant also pleaded to sufficient facts for a finding of guilty of leaving the scene of property damage and was found responsible for a civil infraction.
Background. On July 15, 2009, the defendant was observed driving at a high rate of speed down Church Street in Lowell. He hit several parked cars along the street before turning onto Lawrence Street. He hit more parked cars on that street, turned onto Charles Street, and struck several cars before coming to a rest. His vehicle was wedged between two parked cars, with its back end up on the curb.
Lowell police Officer James Lane arrived on the scene and asked the defendant to step out of his vehicle. He noticed that the defendant was unsteady on his feet, and that his eyes were glassy and bloodshot. Lane smelled alcohol on the defendant's breath and noticed that the defendant was slurring his words. He asked the defendant if he had been drinking or taken any drugs, and the defendant stated, 'I've been drinking.'
Lane was not present for the first day of trial. Trial counsel, the prosecutor, and the judge discussed Lane's absence at sidebar, and trial counsel stated that it would be inconvenient for the defendant's witnesses, who were present, to come back another time. In an apparent attempt to accommodate the defendant's witnesses, the judge suggested that the evidence be taken out of order, with the defendant presenting his case first and the Commonwealth presenting its case when Lane became available. The matter was adjourned for a brief recess.
Apparently he did not know that the trial was beginning that day. The trial judge found it 'very unusual' that notice of the court date would be sent to the Lowell police department 'in a case such as this where the police know the [defendant's] father, they know the [defendant's] brother, and that the officer who is involved, the arresting officer doesn't get notified on the day of trial.' The defendant's brother and cousin are currently Lowell police officers, and the defendant's father was a Lowell police officer who had recently passed away.
When the matter was recalled, the judge explained the proposed procedure and told the defendant that it was 'the only way to [have the trial] without inconveniencing all the people here who your attorney has here.' The defendant stated that he understood and agreed to the procedure.
Discussion. The defendant argues that he received ineffective assistance of counsel because trial counsel agreed to the out-of-order presentation. He claims that he was denied his constitutional right to be confronted with, and respond to, the evidence against him. We disagree.
Seven of the ten trial witnesses were called by the defendant. Presumably, he knew what evidence they would offer. Pursuant to Mass.R.Crim.P. 14(a)(1)(A)(vii) and (viii), as amended, 444 Mass. 1501 (2005), the defendant had access to the Commonwealth's witnesses and their statements before trial.
Because the defendant chose not to move for a new trial, we do not have the benefit of trial counsel's affidavit describing the circumstances under which the out-of-order presentation was discussed and agreed upon at sidebar. However, the record suggests that the defendant was given time to discuss the proposal with trial counsel. Even if they did not discuss the proposal, the judge discussed it with the defendant when the case was recalled. He explained the procedure, asked the defendant if he understood 'all that,' and inquired whether he was 'willing to proceed on that basis.' The defendant responded affirmatively. The judge then conducted a full plea colloquy in which the defendant stated that he had not taken any medication, drugs, or alcohol in the preceding twenty-four hours; he had never suffered from any mental illness of which he was aware; and he was satisfied with trial counsel's representation of him. The judge found that the defendant was admitting to sufficient facts for a finding of guilty on the charge of leaving the scene of property damage 'freely, voluntarily, intelligently [and] with knowledge of the consequences,' and nothing in the record leads us to believe that the defendant did not so agree to the out-of-order presentation.
Nor do we know whether agreeing to it was part of a trial strategy.
The case was recessed after a sidebar conference requested by trial counsel. When it was recalled, the clerk of the court asked if there was 'any news on [the] Patrick Wayne matter?'
We are not persuaded that trial counsel's agreement to present the case in reverse order constituted ineffective assistance of counsel, but even if it did, the defendant has not shown that counsel's failure 'likely deprived [him] of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). He identifies no witness he would or would not have called, and no responses he would or would not have elicited from the Commonwealth's witnesses, had the evidence been presented in order. 'Speculation, without more, is not a sufficient basis to establish ineffective representation.' Commonwealth v. Duran, 435 Mass. 97, 103 (2001).
Finally, while we do not endorse the procedure that took place in this case, we credit the trial judge with the ability to hear the evidence and decide the case with the knowledge that the burden of proof rests with the Commonwealth.
Judgment affirmed.
By the Court (Mills, Milkey & Carhart, JJ.),