Opinion
15-P-396
02-19-2016
COMMONWEALTH v. COLEMAN MANNION.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a Superior Court jury convicted the defendant of operating under the influence of alcohol and leaving the scene of an accident involving personal injury and property damage, the defendant filed a motion for a new trial on the basis that he was denied the effective assistance of counsel. The motion was denied and the defendant appeals. We affirm.
Following a jury-waived trial, the defendant also was convicted of being a subsequent offender (fifth offense).
The defendant withdrew his direct appeal before filing the motion for a new trial. See Appeals Court No. 13-P-962. He now appeals only from the denial of the motion for new trial. Although the defendant should have refiled the trial transcripts in connection with this appeal, they are available under the previous docket and we have reviewed them.
Background. At trial, the Commonwealth presented evidence that Khanh Vo was driving on Dorchester Avenue in the Dorchester section of Boston at approximately 11:25 P.M. on November 24, 2010. Vo was stopped at a red light when his vehicle was struck from behind. He pulled over, exited his vehicle, and saw the driver of the car that had hit him restart the car and drive away. Vo got back into his vehicle and followed, honking his horn as he went. The car did not stop. When Vo passed a marked police cruiser occupied by Boston police Officer Gerrard Lett, he told the officer what had happened and pointed to the car that had hit him.
Lett activated his emergency lights and pulled over the car. It stopped, the driver's door swung open, and a pair of feet came out. Lett approached the car and yelled at least five times for the driver, later identified as the defendant, to stay inside and close the door. The defendant did not respond, so Lett placed his hand on the defendant's shoulder and feet and pushed him back into the car. As he did so, Lett noticed "a very, very heavy odor of alcohol" coming from the defendant's breath. Lett asked the defendant if he had been in an accident but could not understand the defendant's response, so he asked for the defendant's license and registration. Lett watched as the "heavy headed" defendant fumbled around in his wallet, eventually producing an Irish license but no registration.
Although the defendant had an Irish accent, Lett testified that he could not understand what the defendant was saying because he "appeared intoxicated." The defendant was swaying back and forth, his "eyes looked bloodshot and watery and you could smell the alcohol coming off of him." Lett asked the defendant if he had any medical problems that would prevent him from performing field sobriety tests, and the defendant stated that his "legs are all messed up." The defendant was unable to count to one hundred, and he stumbled while performing the "nine step walk and turn" test. Lett placed the defendant under arrest, having formed the opinion that the defendant was "clearly intoxicated[.]"
The defendant testified that, for the past five years, he has had a hard time walking. He also has "asthma, bronchitis and . . . lung problems[.]" On cross-examination, the defendant stated that he had been taking medication prior to November 24, 2010, for "dizzy spells" he has when he stands up; he can no longer operate heavy machinery because of his lung problems; indeed, the last time the defendant tried working he "ended up in the hospital twice over it." The defendant stated that his "legs are getting better since [he] started getting treatment for them"; that he thought records showing that treatment were "with the Boston Medical"; and that he did not bring the records to court that day. The jury found the defendant guilty.
The defendant moved for a new trial, arguing that trial counsel rendered ineffective assistance when he failed to introduce medical records that would corroborate the defendant's testimony regarding his medical conditions. The defendant also faulted trial counsel for not utilizing a field sobriety test manual to impeach Lett. The Commonwealth opposed the motion on the basis that trial counsel was not ineffective and the defendant had not made a "substantial showing" to warrant an evidentiary hearing. The motion judge (who was also the trial judge) agreed, and denied the defendant's motion "for reasons stated in opposition."
Discussion. "A motion for a new trial is addressed to the sound discretion of the judge, and the judge's disposition will not be reversed unless it is manifestly unjust, or unless the trial is infected with prejudicial constitutional error." Commonwealth v. Savage, 51 Mass. App. Ct. 500, 504 (2001) (citations omitted). Where, as here, "the judge deciding the motion is also the trial judge, reversal for abuse of discretion is particularly rare." Id. at 504-505.
The defendant's claim that trial counsel rendered ineffective assistance by pursuing a "medical defense" without introducing the defendant's medical records lacks merit because trial counsel did not pursue such a defense. Rather, the defendant stated on cross-examination that he had been receiving medical treatment for his claimed illnesses. Nothing in the record other than the defendant's trial testimony "indicates that [medical records existed,] would have produced evidence favorable to the defendant[,] or would have made a difference in the case in any way," Commonwealth v. Linton, 456 Mass. 534, 556 (2010), and the defendant has not shown "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Medical records submitted in support of the motion for a new trial are dated November and December, 2011, well after November 24, 2010, when the defendant was arrested but before the defendant's May, 2012 trial. The defendant did not submit an affidavit in support of his motion for a new trial or state that he had brought these records to counsel's attention before the trial, and trial counsel's affidavit states that he does not have any medical records in his file. We do not consider it ineffective for trial counsel to fail to anticipate the defendant's answers on cross-examination or not to have medical records on hand that would corroborate that testimony where the defendant has not shown that trial counsel was aware of any such records and "[a]dditional unsympathetic facts also may have come to light had trial counsel presented [them,]" Commonwealth v. Hensley, 454 Mass. 721, 740 (2009), including that one of the defendant's "[p]roblem[s]" included "alcohol abuse, continuous." In any event, a decision by trial counsel to avoid this "risky subject" by not introducing the records "w[ould] not [have been] manifestly unreasonable." Commonwealth v. Rice, 441 Mass. 291, 306 (2004).
Similarly unavailing is the defendant's claim that trial counsel was ineffective because he failed to utilize a field sobriety test manual to impeach Lett. "In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance[,]" Commonwealth v. Bart B., 424 Mass. 911, 916 (1997), and trial counsel effectively cross-examined Lett regarding the propriety of administering the nine-step walk-and-turn test to someone of the defendant's age and weight. Counsel was not required to "present expert or documentary evidence to support [his] argument" that the test would not accurately indicate the defendant's sobriety, Commonwealth v. Hensley, 454 Mass. 721, 736 (2009), and "[t]he defendant has not persuaded us that he has been a victim of ineffective assistance of counsel in any respect." Commonwealth v. Delong, 72 Mass. App. Ct. 42, 46 (2008).
The judge properly denied the motion without an evidentiary hearing, as the defendant did not submit an affidavit, and the absence of information in trial counsel's affidavit "as to the reasons for not presenting" the medical records or utilizing the field sobriety test manual in cross-examination, Commonwealth v. Ortiz, 67 Mass. App. Ct. 349, 354 (2006), "speaks volumes." Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). See Commonwealth v. Rice, 441 Mass. 291, 310 (2004) (no evidentiary hearing required "because the defendant did not raise a substantial issue in his motion"); Commonwealth v. Goodreau, supra at 348 (no evidentiary hearing necessary "[i]f the theory of the motion, as presented by the papers, is not credible or not persuasive").
Order denying motion for new trial affirmed.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 19, 2016.