Opinion
13-P-1909
05-18-2015
COMMONWEALTH v. DAVID C. SAMPSON.
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
Following a jury trial in the District Court, the defendant was convicted of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1). On appeal from his conviction, the defendant argues that (1) the trial judge erred in denying the defendant's motion for a mistrial after the arresting officer remarked that he had training in field sobriety laws; (2) the evidence was insufficient to sustain his conviction; and (3) his trial counsel provided ineffective assistance because he failed to request a curative instruction after the officer's aforementioned remark. We affirm.
Prior to trial the defendant pleaded guilty to negligent operation of a motor vehicle and responsible for failing to drive in the lane nearest the right side of the way (civil violation).
1. Motion for a mistrial. Before trial, the judge allowed the defendant's motion in limine excluding from evidence any reference to the defendant's refusal to submit to field sobriety tests. However, in the course of his direct examination, in response to the prosecutor's question concerning his training at the police academy, the arresting officer remarked that, among other things, he had received training in "field sobriety laws." Defense counsel objected. At a sidebar conference, during the colloquy, defense counsel moved for a mistrial, on the grounds that "the bell . . . has been rung, [and] it's tough to be unrung," and that "this issue is now firmly now entrenched." The Commonwealth countered that the mention of a field sobriety test had come up in the context of the officer's training and that "there's nothing that a curative instruction from Your Honor couldn't fix."
After carefully considering the arguments of counsel, the judge denied the motion stating that she did not think "that the jury has been so tainted, nor the issue highlighted for them in such a way that they would be unable to get past it," but that she "certainly would entertain some additional jury instruction" at the end of the trial. Defense counsel did not request any additional instructions at the conclusion of the sidebar conference or at the close of the evidence.
The judge's entire ruling on the defendant's motion for a mistrial -- a ruling we find to be both clear and well-reasoned -- was as follows:
"The motion for a mistrial is denied at this point. My -- I take responsibility, I think, for the confusion here. I should have been more clear with Officer Cavicchi present about the fact that the allowance of the Motion to Preclude Reference to Refusal of all Field Sobriety tests and specifically to any evidence of the Defendant's participation -- or completion or attempt at the alphabet also could have comprehended a requirement that field sobriety testing generally not be referenced or discussed in any way. Because I think, as the Commonwealth points out, the mention of field sobriety testing came up in the context of a broader list of areas of training for this officer, because I believe that there were -- As it happens, I took the objection with a question pending on another topic, I don't believe that the jury has been so tainted, nor the issue highlighted for them in such a way that they would be unable to get past it. I certainly would entertain some additional jury instruction if the Co -- if the Defendant would like me to at the end of the trial addressing the issue of the absence of any field sobriety testing, but that's a strategic decision maybe for a later time. But at this point, the Motion for a Mistrial is denied."
Nor did defense counsel move to strike the testimony of the officer.
On appeal, the defendant argues that the judge erred in denying his motion for a mistrial. When evaluating a ruling on a motion for a mistrial, "the burden of demonstrating an abuse of discretion is a heavy one." Commonwealth v. Copney, 468 Mass. 405, 415 (2014), quoting from Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985). The defendant has failed to meet his burden.
First, we have difficulty finding what, if any, prejudice the officer's remark caused the defendant, especially in light of the overwhelming evidence of the defendant's intoxication. The officer's reference to his training in field sobriety laws was fleeting, not individualized to the defendant, and, importantly, did not apprise the jury of the defendant's refusal to submit to a field sobriety test. Furthermore, there was no reference to the testimony later in the trial. See Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997). We fail to see the prejudicial effect of this limited reference.
Second, to the extent that the officer's singular reference caused the defendant any prejudice, we think that prejudicial effect "was fairly dissipated by the evidence subsequently presented at trial," Commonwealth v. Bryant, 447 Mass. 494, 504 (2006), and the judge's final charge to the jury, which properly instructed on the required elements of OUI and that the jury were "to decide what the facts of the case are based solely from the evidence admitted in this case and not from suspicion or conjecture." See Commonwealth v. Francis, 432 Mass. 353, 359 (2000) ("We presume that the jury followed these instructions"). There was no abuse of discretion here.
2. Sufficiency of the evidence. Next, the defendant claims that there was insufficient evidence to support his conviction of OUI. In particular, the defendant maintains that there was insufficient evidence as to the element of diminished capacity. We disagree.
As to the defendant's diminished capacity, the arresting officer testified that the defendant's vehicle crossed the fog line "about four times," and that he saw the vehicle cross the "yellow line" twice. The officer also testified that, after he pulled the defendant over, he could smell alcohol on the defendant's breath, that the odor of alcohol "was very strong," that the defendant's "speech was slurred," and that his "eyes . . . were glassy." See Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924 (1999) (smell of alcohol, watery and bloodshot eyes, and slurred speech supported finding of intoxication). This evidence, "viewed in the light most favorable to the Commonwealth, was more than sufficient to support a finding of operation with diminished capacity." Commonwealth v. Rollins, 59 Mass. App. Ct. 911, 912 (2003), S.C., 441 Mass. 114 (2004).
3. Ineffective assistance of counsel. Finally, the defendant argues that his trial counsel provided ineffective assistance in violation of the defendant's constitutional rights for failing to request a curative or special instruction, as suggested by the judge, in response to the officer's remark regarding his training in field sobriety laws. We find the defendant's claim to be unconvincing. "A claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). But, here, applying the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), viewing the trial record in its entirety, we find nothing to suggest that defense counsel rendered ineffective assistance.
Further, in this case, we think that trial counsel's decision not to request an instruction on the field sobriety tests, given the overwhelming evidence presented at trial, was a reasonable tactical choice. See Commonwealth v. Shuman, 445 Mass. 268, 277 (2005) ("This court gives some deference to trial counsel's tactical decisions"). Requesting an instruction, either directly after the sidebar conference, or at the close of the evidence, would have done nothing more, in our view, than to highlight or emphasize a potential detrimental gap in the evidence, i.e., the absence of field sobriety tests. Instead, trial counsel sought, ably, to discredit the officer's testimony while simultaneously contesting the evidence of intoxication. "We do not find the choice of emphasis in a defense to be manifestly unreasonable." Ibid. Also, counsel's decision not to request the instruction clearly did not meet the second prong of the Saferian test -- that is it did not deprive the defendant of a defense. Ibid.
Judgment affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 18, 2015.