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Commonwealth v. Maddock

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 4, 2012
11-P-1987 (Mass. App. Ct. Jun. 4, 2012)

Opinion

11-P-1987

06-04-2012

COMMONWEALTH v. RICHARD G. MADDOCK.


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 of operating a motor vehicle while under the influence of liquor, arguing that the trial judge's rulings violated his rights under the Fifth and Sixth Amendments to the United States Constitution. We affirm.

After a jury convicted the defendant of operating under the influence, he was convicted in a jury-waived trial of being a subsequent offender (fourth offense).

Background. The sole witness at trial was Medfield police Officer Daniel Pellegrini. Officer Pelligrini testified that he was on routine patrol on February 27, 2010, when he observed the defendant's vehicle exit a parking lot. Officer Pellegrini followed the vehicle and stopped it after it made an illegal left turn. The officer approached the passenger side and immediately saw a beer bottle on the floor between the defendant's legs. He noticed a strong odor of alcohol emanating from the vehicle and observed that the defendant's eyes were glassy and that his speech was slurred. After the defendant failed several field sobriety tests, he was placed under arrest for operating under the influence of intoxicating liquor. Discussion. The defendant claims that he was denied his Sixth Amendment right to confront witnesses against him because Officer Pellegrini testified, on redirect examination, that he did not have an independent memory of the night of the defendant's arrest. The defendant also argues that, in his closing argument, the prosecutor improperly commented on the defendant's failure to testify and injected his personal beliefs. Finally, the defendant argues that he was denied effective assistance of counsel because trial counsel failed to object to the above-claimed errors. In light of the defendant's failure to object at trial, we review the claimed errors for a substantial risk of a miscarriage of justice. Commonwealth v. Gabbidon, 398 Mass. 1, 7 (1986).

1. Trial errors. The defendant's first contention, that he was denied the opportunity to cross-examine Officer Pellegrini, is not supported by the record. Officer Pellegrini answered approximately 270 of the defendant's questions, and was unable to answer approximately nineteen due to memory failure. 'The main and essential purpose' of the Sixth Amendment's confrontation clause 'is to secure for the opponent the opportunity of cross-examination.' Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 221 (1991), quoting from Davis v. Alaska, 415 U.S. 308, 315-316 (1974). Officer Pellegrini was subject to extensive cross-examination, which is all that the confrontation clause requires. See Commonwealth v. Cong Duc Le, 444 Mass. 431, 437-438 (2005), quoting from United States v. Owens, 484 U.S. 554, 559 (1988) ('As to the confrontation clause, all that was required was that the defendant have an opportunity to cross-examine the witness --- it did not guarantee a 'cross-examination that is effective in whatever way, and to whatever extent, the defense might wish''); Commonwealth v. Santiago, supra (noting that, '[g]enerally, a witness's inability to answer questions on cross-examination due to lapse of memory' does not violate a defendant's confrontation rights).

With respect to the prosecutor's closing argument, it is clear from the record that the purported reference to the defendant's failure to testify was a slip of the tongue. The judge advised the jury both before opening arguments and after closing arguments that the attorneys' closing statements are not evidence. 'We presume the jury will follow the judge's instructions.' Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010).

In discussing photographs introduced into evidence, the prosecutor stated, 'There's nothing in the photographs that are contrary to what the defendant testified to -- excuse me, the officer testified to.'
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Insofar as the defendant argues that the prosecutor improperly injected his personal beliefs into his closing argument, the prosecutor's statement (that Officer Pellegrini 'did what he was supposed to do based on his training and experience') was based on Officer Pellegrini's testimony. The officer was asked on direct and cross-examination about his training and experience, and testified that he conducted the stop and sobriety tests in accordance with procedures he learned in the police academy. The prosecutor could properly urge the jury to infer, based upon this evidence, that Officer Pellegrini conducted the stop in accordance with his training and experience. See Commonwealth v. Semedo, 456 Mass. 1, 13 (2010). Moreover, Officer Pellegrini was the sole witness at trial, and '[w]here credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed.' Commonwealth v. Thomas, 401 Mass. 109, 116 (1987).

Because we can discern no error in the trial, there was no substantial risk of a miscarriage of justice in this case.

2. Ineffective assistance of counsel. The defendant faults trial counsel for failing to (1) move to strike Officer Pellegrini's testimony, (2) object to the prosecutor's closing statement, and (3) request an instruction on the defendant's right not to testify. Because he did not move for a new trial on this basis, we resolve his claim of ineffective assistance only if 'the factual basis of the claim appears indisputably on the trial record.' Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). The defendant's ineffective assistance claim does not come within the Zinser exception, and we therefore decline to address it. See Commonwealth v. Zinser, supra (noting that the exception to the rule that 'our courts strongly disfavor raising claims of ineffective assistance on direct appeal' is narrow).

Judgment affirmed.

By the Court (Cypher, Hanlon & Carhart, JJ.),


Summaries of

Commonwealth v. Maddock

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 4, 2012
11-P-1987 (Mass. App. Ct. Jun. 4, 2012)
Case details for

Commonwealth v. Maddock

Case Details

Full title:COMMONWEALTH v. RICHARD G. MADDOCK.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 4, 2012

Citations

11-P-1987 (Mass. App. Ct. Jun. 4, 2012)