Opinion
13-P-1336
10-15-2014
COMMONWEALTH v. WILLIAM T. DRAGON.
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
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. He now appeals both his conviction and the denial of his motion for new trial, chiefly arguing that his trial counsel was ineffective. In particular, he claims that trial counsel was ineffective in failing to offer into evidence certain records and testimony as to his mental capabilities, education, and physical condition, and in advising him that he could request a continuance without a finding (CWOF) after a guilty verdict. We reverse.
The defendant agreed to findings of responsibility for a marked lanes violation and speeding. Fines were imposed.
To prevail on his claim of ineffective assistance of counsel, the defendant must establish that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and that, because of this, the defendant was "likely deprived . . . of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 280 (2014), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
At trial, the arresting officer, a State trooper, testified that in the early morning hours of November 1, 2010, he initiated a vehicle stop of the defendant after observing him to be driving at ninety-four miles per hour. The trooper administered field sobriety tests. The tests included the alphabet test, countdown test, nine-step walk and turn test, and finger-to-nose test. According to the trooper, the defendant failed each test. As a result of the trooper's observations, he concluded the defendant was operating under the influence of alcohol and placed him under arrest. At the barracks, the defendant took a breathalyzer test which yielded a blood alcohol percentage result of .06.
The defendant acknowledged drinking three beers.
The defendant, who was a twenty-two-year-old college student at the time of his arrest, also testified. He centered his defense on a long-standing diagnosis of attention deficit disorder (ADD) and a learning disability, and on stiffness in his hips due to the cold temperature at the time of his arrest and two prior hip surgeries. In support of this defense, trial counsel offered a letter to counsel from the defendant's treating neurologist, in part describing the defendant's ADD and learning disability and their expected invalidating effects on certain of the defendant's field sobriety tests. The judge properly excluded the letter from evidence because, as a statement of medical opinion prepared in anticipation of litigation, it did not satisfy the requirements of G. L. c. 233, § 79G. Trial counsel offered no further support for the defendant's ADD and learning disability diagnosis through relevant medical records, and did not seek to introduce expert testimony on the subject. He did, however, introduce seven pages of medical records concerning the defendant's prior hip surgeries.
An affidavit of trial counsel, included with the defendant's motion for a new trial, was silent as to whether counsel had decided against offering the defendant's medical records from the neurologist and, indeed, as to whether counsel even reviewed those records. Instead, on the subject of the neurologist the affidavit states only that before trial, counsel sent the neurologist's opinion letter to the prosecutor under the notice provision of G. L. c. 233, § 79G, and the prosecutor did not object until the first day of trial.
Shortly after the conviction, the defendant's appellate counsel filed a motion for new trial, which included, among other things, numerous of the defendant's medical records from his neurologist. The records, the authenticity of which is not contested by the Commonwealth, indicate that the defendant was diagnosed with ADD and a learning disability when he was thirteen years old, and has been in continuous treatment since then. Test scores related to the diagnosis show that he has deficits in processing and comprehending verbal instructions. As a result, he has taken medication to improve his ability to focus. Other records indicate he has also received accommodations in both school and athletics for his disability. The defendant claims that the failure to seek to introduce these records deprived him of his right to effective counsel. We agree.
The trial judge denied the motion without a hearing, in a bare margin endorsement, and prior to receiving the Commonwealth's opposition. If the motion had been allowed, we might remand to permit the Commonwealth to submit a memorandum of law and accompanying material for the motion judge to consider, rather than considering the Commonwealth's views for the first time on appeal. However, the Commonwealth does not seek such relief and it appears that the Commonwealth's arguments are fully presented here, together with a complete record, such that a remand would add nothing.
The heart of the defendant's case was his ADD and learning disability diagnosis. Without evidentiary support to corroborate his testimony, however, the credibility of the defendant's explanation for his inability to perform the field sobriety tests was seriously undermined. Given that counsel obtained medical records related to the defendant's hip surgeries, there is no reason to believe he could not have obtained the medical records relevant to the defendant's ADD and learning disability diagnosis. Counsel's work in this regard fell below that expected of an ordinary, fallible lawyer. See Commonwealth v. Alvarez, 433 Mass. 93, 102 (2000) (counsel ineffective where he "squandered" the "opportunity to present the jury with a medical explanation for the defendant's mental illness, an explanation that could both corroborate the existence of the mental disease and portray the defendant's mental illness in a sympathetic light"); Commonwealth v. Nwachukwu, 65 Mass. App. Ct. 112, 116-117 (2005) (where counsel was able to obtain defendant's work attendance records, he was ineffective in failing to obtain and admit complainant's records from same employer). Even if we were to assume counsel's approach was deliberate and tactical as the Commonwealth contends, under the circumstances we conclude the failure to obtain and offer the records was manifestly unreasonable.,
Because it is undisputed that trial counsel had the neurologist's opinion letter and contact information in hand well in advance of trial, the lack of an evidentiary hearing or a finding as to whether or when the defendant himself provided the medical records to counsel does not prevent us from deciding the merits of the ineffective assistance question.
We are unpersuaded by the Commonwealth's optimistic assessment that the records would have been more damaging than helpful to the defense.
Given our conclusion as to manifest unreasonableness, it is of no consequence that no evidentiary hearing was held to determine whether counsel's approach was in fact motivated by tactical reasoning.
Counsel's failure to obtain and offer the records also deprived the defendant of a substantial ground of defense. During closing arguments, the prosecutor seized on the lack of corroborating evidence for the defendant's ADD, asking the jury to consider what the defendant had to gain or lose when he testified about his disabilities. "Where, as here, the very matter as to which defense counsel has been ineffective becomes one of the linchpins of the prosecutor's closing, the defendant has met [his] burden of showing prejudice." Commonwealth v. Alvarez, supra at 104. Particularly in light of the low breathalyzer reading and the lack of overwhelming evidence presented by the Commonwealth, we are persuaded that counsel's performance caused the defendant actual prejudice. See Commonwealth v. Urena, 417 Mass. 692, 699 (1994).
The order denying the motion for a new trial is reversed, and a new order shall enter allowing that motion. The judgment is reversed, and the verdict is set aside.
As the defendant prevailed on his first ground of ineffective assistance, we need not reach his further ground in relation to the CWOF disposition.
We also need not reach the issues he raised in relation to his direct appeal, namely, that he was denied a fair trial when a hearingimpaired juror failed to utilize the courtprovided headset during certain parts of the jury instructions and that a witness improperly testified that the defendant's consumption of alcohol had impaired his ability to safely operate a motor vehicle. The alleged errors are unlikely to occur at any retrial. See Commonwealth v. Nutbrown, 81 Mass. App. Ct. 773, 774 n.2 (2012).
So ordered.
By the Court (Rapoza, C.J.,
Maldonado & Blake, JJ.),
Clerk Entered: October 15, 2014.