Opinion
16-P-389
05-08-2017
COMMONWEALTH v. Susan M. MATTHEWS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Susan Matthews, was convicted after a jury-waived trial of one count of operating a motor vehicle under the influence of intoxicating liquor. She argues the judge erred in denying her motion for required finding of not guilty and her motion for new trial. We affirm.
1. Sufficiency of the evidence. The defendant argues that her motion for a required finding of not guilty should have been granted because the Commonwealth did not meet its burden to establish the element of intoxication beyond a reasonable doubt. We consider the evidence, "together with permissible inferences from that evidence, in the light most favorable to the Commonwealth, to ‘determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Szewczyk, 89 Mass. App. Ct. 711, 716 (2016), quoting from Commonwealth v. Walker, 68 Mass. App. Ct. 194, 198 (2007).
The defendant argues that the conviction cannot stand in the absence of a breathalyzer result. It is well settled that "evidence of a defendant's guilt may be primarily or entirely circumstantial." Commonwealth v. Lao, 443 Mass. 770, 779 (2005). "That a defendant was belligerent, unsteady on [her] feet and smelled of alcohol are factors that may support an inference of diminished capacity to operate safely due to intoxication.... The opinion testimony of police who observed the defendant may also be taken into account." Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
Here, the Commonwealth presented the testimony of Norwood police Officer Gregory Shore that he believed the defendant to be under the influence of alcohol based on her glassy and bloodshot eyes, her slurred speech, the smell of alcohol emanating from her car and her person, her unsteadiness on her feet, and her failure to complete a field sobriety test. Taking the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we conclude that the Commonwealth sustained its burden of proof beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor.
The defendant's testimony contradicted Officer Shore's testimony at every turn. This is irrelevant to our evaluation whether, in the light most favorable to the Commonwealth, "a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Szewczyk, supra, quoting from Walker, supra.
2. Ineffective assistance of counsel. The defendant argues that her motion for new trial should have been granted because trial counsel was ineffective. She claims her trial counsel failed to (a) interview and call at trial three potential corroborative witnesses and (b) pursue a potential defense of postconcussive syndrome as the cause of the defendant's appearance on the night in question.
"In reviewing the denial or grant of a new trial motion, we ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ " Commonwealth v. Wright, 469 Mass. 447, 461 (2014), quoting from Commonwealth v. Weichell, 446 Mass. 785, 799 (2006). The motion judge was also the trial judge and thus had the opportunity to observe counsel's performance firsthand. Her conclusions are "entitled to substantial deference" on appeal. Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995). To prevail on a claim of ineffective assistance of counsel, the defendant first must show counsel's "serious incompetency, inefficiency, or inattention ... falling measurably below that which might be expected from an ordinary, fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If this prong is met, the defendant must then show that she was likely deprived of an otherwise available, substantial defense. See ibid.
Notably, the defendant failed to include an affidavit from defense counsel or any explanation for its absence. "Without that affidavit, we have only the defendant's self-serving statements regarding trial counsel's strategy." Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 870 (2005). See Commonwealth v. Lynch, 439 Mass. 532, 539 n.2, cert. denied, 540 U.S. 1059 (2003) ("It is significant that no affidavit from trial counsel was submitted in connection with [the defendant's] motion for a new trial"); Commonwealth v. Savage, 51 Mass. App. Ct. 500, 505 n.6 (2001) ( "Conspicuously absent was an affidavit from trial counsel supporting the defendant's contention"). With this limitation noted, we review the defendant's arguments.
a. Failure to interview and call witnesses. The defendant argues that defense counsel was ineffective for failure to interview and call at trial three witnesses: Kevin McDonough, Deborah Schmoker, and Donald Lewis. We conclude that even if this amounted to serious incompetency that fell measurably below that which might be expected, it did not likely deprive the defendant of an available and substantial defense.
The parties agree that defense counsel generally has a duty to investigate and interview witnesses prior to trial.
McDonough spoke to the defendant on the telephone around the time of her arrest and would have testified that her speech was clear and she did not sound intoxicated. We agree with the judge that McDonough's brief telephone calls with the defendant around the time of her arrest would provide little, if any, substantive value for the defense.
As to Schmoker and Lewis, we agree with the judge that their testimony also would not have aided the defense. Although Schmoker and Lewis were with the defendant until 12:30 a.m. on the day in question, and would testify that they did not observe the defendant consume any alcohol or drugs, they had no personal knowledge of what might have transpired between 12:30 a.m. and 2:00 a.m. when the defendant was arrested.
The failure to interview and call these three individuals as witnesses did not constitute serious incompetency that fell measurably below that which might be expected; even if it did, it did not likely deprive the defendant of an available and substantial defense.
b. Failure to present possible defense. The defendant also argues that defense counsel failed to present in her defense evidence of a prior motor vehicle accident and of postconcussive disorder to account for her conduct and appearance at the time of her arrest on December 30, 2012. The defendant did not mention any medical condition during her testimony at trial. Medical records for the day following the accident indicate no neurological deficits.
The defendant was involved in a motor vehicle accident in October, 2011, more than a year before her arrest.
The defendant includes other medical records dated April 18, 2013, months after her arrest, that indicate that the defendant "continues to suffer from the residual effects of a post-concussion syndrome" with symptoms including "intermittent headaches, sleep deprivation, memory loss, and anxiety, among other conditions." A letter from her primary care physician dated April 29, 2013, states that the defendant was concerned about continuing problems with concentration and cognitive function, but had not had time for a neurological assessment.
We discern no significant error of law or abuse of discretion in the judge's conclusion that, even assuming (though it is unclear) that defense counsel was aware of the defendant's prior accident and medical history, it would not have been an unreasonable tactical decision "to conclude that the risks of presenting these reports outweighed their usefulness to the defense." For example, defense counsel could have wished to avoid introducing these inconsistent medical evaluations that could have impugned the defendant's credibility. The judge also specifically found, based on the defendant's demeanor and appearance on the witness stand, "that [the defendant] would not have hesitated to raise this issue even if her attorney did not ask questions about it."
The defendant's affidavit states that she "suffer[s] from insomnia as the result of a severe head injury incurred during a motor vehicle accident in October, 2011. To this day, [she] continue[s] to experience symptoms of post-concussion syndrome" and that "[a]ll of the aforementioned facts were relayed to [defense counsel] on several occasions including [the defendant's] initial [arraignment] date." Beyond this, the defendant does not specifically allege that defense counsel was made aware of the defendant's accident or medical history, or that medical records were made available to defense counsel.
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In sum, we discern no error in the denial of the defendant's motion for required findings or motion for a new trial.
Judgment affirmed.
Order denying motion for new trial affirmed.