Opinion
09-P-2223
03-21-2012
COMMONWEALTH v. JOANNE M. BYAM.
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
In her affidavit, placed before the trial court on the defendant's second motion for a new trial, which raises a claim of ineffective assistance of counsel, trial counsel averred that she did not introduce medical records that might have provided some defense by undermining the probative significance of evidence that the defendant failed two of the field sobriety tests that required walking or balancing because 'at trial I knew I could introduce this evidence through defendant by putting her on the stand.' (Testimony of the police indicated that the defendant had passed the third, the so-called alphabet test.) Trial counsel also averred that '[a]t the time of the arraignment, defendant appeared under the influence of alcohol and/or drugs. At pre-trial the defendant appeared under the influence of alcohol and/or drugs. And finally, at trial the defendant appeared to be under the influence of drugs and/or alcohol.' Trial counsel further averred that '[a]t trial, defendant asked me if she should take the stand. Although it may have helped her case I could not put her on the stand when she was intoxicated.' Trial counsel did not inform the judge, at any time, of trial counsel's belief that her client was intoxicated.
The jury convicted the defendant of operating under the influence of alcohol, and the trial judge found the defendant guilty on the subsequent offense portion of that charge. The judge also found the defendant responsible on a charge of possession of an open container of alcohol in a motor vehicle; this infraction was placed on file.
When an attorney believes her client is intoxicated at his or her criminal trial, it falls below the standard of conduct delineated in Saferian not to bring the matter to the attention of the judge, outside the presence of the jury. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Bringing the matter to the attention of the judge will allow the judge to make a determination whether the defendant is intoxicated, and whether a continuance should be granted.
In this case, such action was necessary because of counsel's belief that the defendant was intoxicated, regardless whether the judge would have concluded that the defendant was in fact intoxicated. If the defendant was intoxicated to the extent that she was incapable of understanding and participating in the trial proceedings, a continuance was required. See Commonwealth v. Simpson, 428 Mass. 646, 652 (1999). Further, in failing to seek a continuance, trial counsel put herself in the position where she improperly either made the decision that her client would not testify, see Commonwealth v. Conley, 43 Mass. App. Ct. 385, 391 (1997) (whether to testify is a personal decision that must be made by the defendant rather than counsel), or had her client make the decision to waive her right to testify in her own defense while intoxicated. The impermissibility of either course of action is one example of why counsel should have alerted the judge and why, if the defendant was intoxicated, a continuance would have been required. We do not try people who are intoxicated by alcohol or drugs. If a continuance had been granted in the instant case, when trial resumed the defendant could have taken the stand in her own defense.
Subsequent to trial in this case the judge conducted a colloquy on the jury-waived third offense charge at which he inquired about whether the defendant had taken alcohol or drugs within the previous twenty-four hours. The defendant said 'no' and the judge accepted that statement. We note that trial counsel failed at this time to point out to the judge what counsel had witnessed that appeared to be inconsistent with her client's statement.
On the other hand, if the defendant, in fact, was not intoxicated, and defense counsel was in error, trial counsel's recommendation that the defendant not testify despite her express wishes was not defensible even on the terms put forward in trial counsel's affidavit, as it deprived the defendant of the only ground of defense available to her. See Saferian, supra.
We are inclined to believe that the judge credited the affidavit of trial counsel in this case, in which she stated she believed the defendant was intoxicated at trial. It is signed by an officer of the court, and it puts trial counsel at substantial personal and professional risk by suggesting a failure to address appropriately the situation she confronted at trial. Further, should the judge have thought this attorney was being untruthful, the prudent course would have been to hold an evidentiary hearing to assess, in person, her credibility.
It is nonetheless true, as the Commonwealth points out, that the motion judge noted his denial of the motion with a single word notation. Thus, it is at least theoretically possible that the trial judge concluded that the attorney's affidavit was not credible, i.e., that defense counsel did not, in fact, think that the defendant was intoxicated at the time of trial.
Such a conclusion however would not alter the result required in this case. Other than a belief in the defendant's intoxication at the time of trial, defense counsel has put forward no justification at all for her decision neither to introduce medical records, nor to call the defendant to the stand in order to introduce the evidence in support of the defendant's only viable ground of defense. This, too, falls below the standard required by Saferian.
Because trial counsel's conduct here met both prongs of the Saferian test, her representation of the defendant was constitutionally ineffective.
There is no merit to the issues raised on direct appeal that may arise at any new trial. In light of the statutory requirement that a continuation without a finding could not have been entered with respect to the 1990 case in the Quincy District Court unless the defendant were required to attend an alcohol education program, there was sufficient evidence to support the conviction for OUI third offense. Even assuming the testimony that another driver pointed at the defendant's car was inadmissible hearsay, we find that its admission was harmless.
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Judgment reversed.
Verdict set aside.
Finding on subsequent offense set aside.
Finding of responsibility set aside.
Order denying second motion for new trial reversed.
By the Court (Cypher, Vuono & Rubin, JJ.),