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Commonwealth v. Cabana

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 24, 2012
11-P-284 (Mass. Apr. 24, 2012)

Opinion

11-P-284

04-24-2012

COMMONWEALTH v. RONALD J. CABANA.


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, Ronald J. Cabana, was charged in a two-count complaint in Westfield District Court with (1) negligent operation of a motor vehicle and (2) operating a motor vehicle while under the influence of intoxicating liquor (OUI). A jury convicted the defendant of both counts. A timely notice of appeal was filed in this court. While the appeal was pending, the defendant was allowed to file a motion for a new trial. That motion was denied by the trial judge. The defendant's appeal from that order was consolidated with his direct appeal. On appeal, he claims that the judge committed error in denying both his motion for a new trial and his motion for a required finding of not guilty as to the charge of negligent operation of a motor vehicle.

Background. The only witness at the trial was Officer Richard McDonnell of the Agawam police department. Officer McDonnell was dispatched to the intersection of Routes 57 and 187 in Agawam as a result of a report of a single-vehicle accident on October 15, 2009. We summarize his testimony.

Upon arriving at the scene, Office McDonnell observed a vehicle located about two car widths off of Route 187, in some bushes. There were tire tracks in a grassy area running east to west coming directly across the end of the ramp from Route 57, where it intersects with Route 187. The tire tracks turned left, causing what the officer described as 'yaw' marks that ended where the vehicle came to rest.

Officer McDonnell approached the vehicle and saw the defendant sitting behind the steering wheel. A key was in the ignition, the engine was running, and the air bags had been deployed. There was a strong smell of alcohol coming from the vehicle. The defendant had a slight cut on his forehead that was bleeding, but he declined medical attention. He appeared to be alert and conscious. An open can of beer, half full, was next to the driver's seat. After he failed his sobriety tests, the defendant was arrested and taken to the Agawam police station.

At the station between 6:35 A. M. and 6:39 A. M., a breathalyzer test produced a result of 0.08 percent. At 6:39 A. M., the defendant executed a written waiver of his Miranda rights. During booking, the defendant responded to regular booking questions including his name, date of birth, and social security number. Upon questioning, he also stated that he had started drinking at a friend's house at about 5:30 P. M. and had had his last drink at about 5:00 A. M. the following day. The defendant did not testify at the trial.

This record was not admitted at trial.

Discussion. 1. Denial of motion for a new trial. The defendant filed a motion for a new trial based on his claim that his trial counsel was ineffective (1) for failing to file a motion to suppress certain statements he made during the booking stage of his arrest, and (2) for failing to object to a police officer's alleged improper opinion testimony concerning the defendant's operation of the vehicle prior to the accident. The motion judge, who was also the trial judge, denied the motion without an evidentiary hearing.

'The decision to grant a motion for a new trial rests soundly within the judge's discretion and 'will not be reversed unless it is manifestly unjust or . . . the trial was infected with prejudicial constitutional error." Commonwealth v. Jones, 77 Mass. App. Ct. 53, 57 (2010), quoting from Commonwealth v. Nieves, 429 Mass. 763, 770 (1999). Also '[w]e give special deference to the decisions of a judge who was, as here, the trial judge.' Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). Where a motion for a new trial is based on ineffective assistance of counsel, we use the familiar standard outlined in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

When determining claims of ineffective assistance of counsel, the Court must engage in 'a discerning examination and appraisal of the specific circumstances of the given case to see whether 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. Saferian, supra at 96.

a. Failure to file a suppression motion. The defendant claims in his new trial motion that his Miranda waiver was not knowingly or voluntarily given because his mental acuity was impaired, either as a result of an alleged head injury or intoxication or both. Accompanying the motion was trial counsel's affidavit in which she asserted, among other things, that '[a]fter my review of the discovery as well as my review of the case, the case law and in light of the written waiver, I determined that getting allowed a Motion to Suppress would be unlikely and would not be supported by the facts and the law.' The defendant did not file an affidavit.

At oral argument, appellate counsel for the defendant stated that he is not challenging the voluntariness of the waiver, only whether it was 'knowing and intelligent.'

We start our analysis by noting that the omission of a suppression motion that only has a ''minimal chance of success' does not amount to ineffective assistance of counsel.' Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 324 (2009), quoting from Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). The Commonwealth had the burden of demonstrating beyond a reasonable doubt that any Miranda waiver by the defendant was 'knowing, intelligent, and voluntary.' Commonwealth v. Judge, 420 Mass. 433, 447 (1995), citing Miranda v. Arizona, 384 U.S. 436, 475 (1966). 'And, as with voluntariness generally, intoxication bears heavily on the validity of a Miranda waiver, although it is insufficient alone to require a finding of involuntariness.' Commonwealth v. Ward, 426 Mass. 290, 295 (1997).

Therefore, the fact that the defendant consumed alcohol prior to his arrest does not, by itself, mandate a finding that the waiver of his Miranda rights or his statements to the police were involuntary. Rather, in such circumstances we examine the totality of the circumstances leading up to the waiver, including the conduct and characteristics of the accused and the details of the interrogation. Commonwealth v. Wolinski, 431 Mass. 228, 231-233 (2000).

Here, there is nothing in the record that even suggests that the defendant did not know what he was doing when he signed the Miranda waiver. He had a 'slight' cut on his forehead, but still had the wit to deny medical attention. The defendant answered routine booking questions, such as his name, date of birth, and social security number, apparently without hesitation. Further, the defendant never claimed by affidavit or otherwise that he did not know what he was signing when he executed the Miranda waiver. We also note that trial counsel did not state in her affidavit that the defendant told her that he did not knowingly and intelligently waive his Miranda rights because he was intoxicated or in need of medical attention. Based on the totality of the circumstances, there was no violation of the Saferian standard in counsel's decision not to file a suppression motion.

b. Failure of counsel to object to 'opinion' testimony. In his new trial motion, the defendant also contends that his trial counsel was ineffective because she did not object to Officer McDonnell's alleged opinion testimony concerning the path of the defendant's vehicle prior to its stopping in the bushes.

Officer McDonnell testified as to his observations when he arrived at the accident scene. He testified about the location of the stop sign, the tire tracks on the grassy area, and the 'yaw' marks that created a rut leading to the defendant's vehicle. Officer McDonnell also testified about the lack of brake or skid marks in the area of the stop sign on Route 57. When asked by the prosecutor, '[W]hat did that mean to you?,' Officer McDonnell replied, 'My opinion was that [the defendant] had not seen the stop sign and just want straight across the street.'

Officer McDonnell explained that '[a] yaw mark occurs when a tire is spinning forward, but you're in a turn and it leaves a striation.'
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The use of the word 'opinion' may have been unfortunate, but the officer's response was properly admitted because it qualified as a 'shorthand expression' of his observations. See Mass. G. Evid. § 701 & illustration at 200 (2011). There was no error.

Therefore, we hold that the motion judge did not commit error when she denied the defendant's motion for a new trial.

2. Denial of motion for a required finding of not guilty. The defendant also claims that the judge committed error in denying his motion asserting that the Commonwealth failed to present sufficient evidence to prove beyond a reasonable doubt that he operated his motor vehicle upon a public way negligently, so that the lives or safety of the public were endangered.

For substantially the reasons stated in the Commonwealth's brief, in particular, pages eighteen through twenty-two, we hold that this issue has no merit.

Judgments affirmed.

Order denying motion for new trial affirmed.

By the Court (Cypher, Smith & Fecteau, JJ.),


Summaries of

Commonwealth v. Cabana

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 24, 2012
11-P-284 (Mass. Apr. 24, 2012)
Case details for

Commonwealth v. Cabana

Case Details

Full title:COMMONWEALTH v. RONALD J. CABANA.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 24, 2012

Citations

11-P-284 (Mass. Apr. 24, 2012)