Opinion
15-P-153
07-21-2017
COMMONWEATH v. Ronald J. GAFFNEY.
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 alcohol (OUI), fourth offense. In an earlier trial on the same underlying facts, he was convicted of operating a motor vehicle after his license or right to operate had been suspended for OUI.
The defendant pleaded guilty to the subsequent offense portion of the charge.
In the earlier trial, the jury had been unable to reach a unanimous verdict on the OUI charge and the trial judge declared a mistrial on that portion of the complaint.
In this appeal, the defendant raises two issues. First, he contends that the motion judge incorrectly denied his motion to suppress evidence resulting from the traffic stop, arguing that the police officer did not have the necessary reasonable suspicion for the stop. Second, the defendant argues that his trial counsel was ineffective because he did not offer in evidence a video recording of the defendant's booking or medical records relating to a thirteen year old back injury. We affirm.
Background. At a hearing on the defendant's motion to suppress, the motion judge heard evidence from Officer Stephen Daigle and Sergeant Ricardo Lima, both of the Hopedale police department. Daigle testified that, in the early morning hours of November 5, 2011, he had been driving behind the defendant's car on Route 16 in Hopedale for approximately one minute when he observed the car travel on and over the white fog line to the right of the car on two separate occasions; the car's passenger's side tires briefly crossed over the fog line for approximately ten yards each time.
The judge found both officers to be credible witnesses.
Route 16 in Hopedale has a single lane in both directions with a double yellow solid line in the middle, and white fog lines on both sides between the lane and the curb.
The defendant's speed was not excessive.
Daigle stopped the vehicle and asked the defendant for his license and registration. The defendant had difficulty producing the registration despite the fact that it was in plain sight and Daigle pointed it out to him. The defendant admitted that he did not have his license and that "it was suspended a long time ago for an OUI liquor charge." Daigle also "noticed[d] an odor of alcoholic beverage emanating from" the defendant's car and the defendant had "red, glossy, bloodshot eyes." The defendant admitted to drinking two beers earlier in the evening.
Daigle then asked the defendant to get out of his car and to perform a series of field sobriety tests. Daigle concluded that the defendant did not satisfactorily perform either the nine-step walk and turn test or the one-legged stand test; Daigle then arrested the defendant and transported him to the Hopedale police station. At the police station, the defendant was read, and he indicated that he understood, his Miranda rights; the booking process was recorded by video camera (with no audio).
Daigle testified at trial that, when asked if he had any medical conditions, the defendant complained of bad knees and a ruptured disk in his back, and also said that "there was something wrong with his brain and that he suffered from depression."
In denying the defendant's motion to suppress, and crediting the two officers' testimony, the motion judge found that the passenger's side tires of the defendant's car had crossed the fog line twice. Based on that fact, the motion judge concluded that Daigle had observed a civil motor vehicle infraction and the stop was valid.
During the first trial, the defendant offered a hospital emergency department report from November of 2011, a radiology report from November of 2011, and a magnetic resonance imaging (MRI) report from April 20, 1998. The radiology report and the emergency department report describe a one-centimeter laceration to the defendant's right foot that required two stiches. Those exhibits were admitted in evidence at both trials. The MRI report related to a back injury in 1998. It was admitted in the first trial but excluded from the second trial after the Commonwealth objected on the basis of relevance because the MRI report was thirteen years old.
Discussion. A. Motion to suppress. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Depiero, 473 Mass. 450, 453 (2016), quoting from Commonwealth v. Anderson, 461 Mass. 616, 619, cert. denied, 568 U.S. 946 (2012). We "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 479 (2007), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
"In order for a police investigatory stop to be justified under art. 14 [of the Massachusetts Declaration of Rights], the police must have 'reasonable suspicion' to conduct the stop." Commonwealth v. Scott, supra, quoting from Commonwealth v. Cheek, 413 Mass. 492, 494 (1992). "In determining whether an officer acts reasonably in initiating a threshold, or investigatory, stop, we view the circumstances as a whole." Quinn, supra at 480, quoting from Commonwealth v. Stoute, 422 Mass. 782, 790 (1996). In particular, "[w]here the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Cordero, 477 Mass. 237, 242 (2017), quoting from Commonwealth v. Amado, 474 Mass. 147, 151 (2016).
Here, based on Daigle's observation of the defendant's car on Route 16, Daigle's stop of the defendant's vehicle was reasonably grounded in specific and articulable facts. The motion judge found that the defendant's car twice crossed the fog line with both tires, and thus Daigle had reasonable suspicion to stop the defendant based on a traffic violation, specifically, a marked lanes violation. G. L. c. 89, § 4A. The factual finding is amply supported by the evidence. See Depiero, supra.
General Laws c. 89, § 4A, inserted by St. 1952, c. 461, § 1, provides, in pertinent part, "When any way has been divided into lanes, the driver of a vehicle shall so drive that the vehicle shall be entirely within a single lane, and he shall not move from the lane in which he is driving until he has first ascertained if such movement can be made with safety."
The defendant argues that the marked lanes violation statute prohibits only those failures to stay in marked lanes that pose a public safety risk, and that, here, no such public safety risk is shown. That argument was not made to the motion judge and therefore he did not make an explicit finding on that point. However, we are satisfied that a driver, such as the defendant, who repeatedly veers into the breakdown lane on the other side of a right-side fog line creates a public safety risk for cars stopped in that lane because of an emergency, for bicyclists, and for pedestrians. The stop was justified and the motion to suppress was properly denied.
B. Ineffective assistance of counsel. The defendant also claims that the trial judge erred in denying the defendant's motion for a new trial because his trial counsel's decision not to introduce evidence of an old injury, or the booking video recording from the police station, deprived him of an adequate defense. We are not persuaded.
When a motion for a new trial is based on a claim of ineffective assistance, the defendant must demonstrate that "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, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "The deference we give to defense counsel's strategic judgment in determining whether it was manifestly unreasonable reflects the strong presumption that counsel knows best how to defend a client." Commonwealth v. Glover, 459 Mass. 836, 843 (2011). "The test is not to be made with the advantage of hindsight, and any violation of the attorney's duty must be both substantial and prejudicial." Commonwealth v. Johnson, 435 Mass. 113, 133 (2001), quoting from Commonwealth v. Adams, 374 Mass. 722, 729 (1978).
1. Booking video recording. The defendant contends that, for twenty-nine minutes of the nearly one-hour-long booking video recording, he appears sober and in control of his body. He claims to have wanted the recording in evidence to counter the Commonwealth's claim that he was intoxicated at the time of the arrest. In trial counsel's affidavit, filed in support of the defendant's motion for a new trial, trial counsel stated he believed that showing the one-hour-long recording would have made the jury impatient with the defense and might have prejudiced them against the defendant. The judge found that the recording showed the defendant leaning on the doorjamb and later "appear[ing] to be unbalanced"—actions that the jury could have interpreted as signs of intoxication. The trial judge agreed with trial counsel, finding that the "video could have easily been viewed by counsel as not being particularly helpful to the defendant and may even [have added] substance to what could be viewed as a limited case for the Commonwealth." We are satisfied that trial counsel's strategic decision not to show the booking video recording was not manifestly unreasonable and did not deprive the defendant of an otherwise available, substantial ground of defense. See LaBrie, supra.
2. Medical records. The medical records that the defendant argues should have been entered in evidence included the MRI report of his lower back condition in 1998, the accompanying treatment records, and an MRI report from 2012 that indicated that the 1998 back problem was degenerative and persistent. The 1998 report and records were excluded from the second trial after the Commonwealth objected on the basis of relevance because they were thirteen years old. The 2012 MRI was never offered. The defendant now claims that the 2012 MRI was sufficient to overcome the trial judge's decision to exclude the 1998 report, arguing that these combined records would have allowed the jury to conclude that the defendant was unable to perform a field sobriety test due to his previous injuries.
The 1998 documents were thirteen years old at the time of the offense. In addition, neither the report nor the accompanying records especially supports the defendant's case: the 2012 MRI report stated that the defendant's spinal alignment was satisfactory with no acute lumbar compression fracture ; the 1998 report states that there was no fracture, misalignment of the vertebrae, spinal compression, or limitation on spinal cord movement. Notably, during the one-legged stand field sobriety test, the defendant was unable to count up from one thousand; he does not contend that his back condition prevented him from completing the counting portion of the test.
Trial counsel states that he does not remember why he did not enter the 2012 MRI or any other documents relating to the back injury. However, the judge found that the 2012 report also contained information unfavorable to the defendant. In addition, the judge found that counsel could have concluded that the medical records added little to the defense. We cannot say that counsel's decision to challenge the Commonwealth's elemental assertion that the defendant was intoxicated rather than attempt to use old injuries to discredit the field sobriety tests was an unreasonable strategic decision given all of the evidence at trial. Based on the foregoing, we conclude that the defendant failed to meet the first prong of the two-part test for ineffectiveness of counsel established in Commonwealth v. Saferian, 366 Mass. at 96, because defense counsel's conduct did not fall below that of an ordinary, fallible lawyer in the same or similar circumstances.
Judgment affirmed.
Order denying motion for a new trial affirmed.