Opinion
13-P-1878
04-21-2016
COMMONWEALTH v. EDWARD F. SHEEHAN.
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 jury trial in the Cambridge Division of the District Court Department, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI). In a subsequent jury-waived portion of the trial, the judge found the conviction was the defendant's third OUI. On appeal, the defendant claims the judge abused her discretion when she (1) denied the defendant's motion to continue the trial, and (2) denied the defendant's motion for a new trial based on a claim of ineffective assistance of counsel. We affirm.
Background. We summarize the relevant facts. At approximately 12:40 P.M. on June 15, 2012, the defendant's truck collided with a light pole as he attempted to park near his barber shop. The force of the collision collapsed the light pole and flattened the truck's tires. Soon after the first police officer arrived, the defendant approached him and admitted that he was the driver of the truck that struck the pole. The officer detected a moderate odor of alcohol on the defendant's breath. The officer also observed that the defendant's eyes were bloodshot and glassy, his speech was slurred, and he swayed from side to side as he stood. The defendant initially denied that he had been drinking, but then admitted consuming alcohol earlier in the morning, "[p]robably, six hours ago." When the officer asked him if he was able to operate a motor vehicle safely, the defendant stated, "Probably not." Thereafter, the defendant failed two roadside sobriety tests. He was unable to stand on one leg, admitting, "I will not be able to complete this." He failed to follow instructions and lost his balance during the nine-step walk and turn. He was then placed under arrest for OUI.
On the morning of trial, defense counsel moved for a continuance because Sandra Murphy, whom he proposed to call as a witness, was on vacation and unavailable to testify. According to defense counsel, Murphy was present at the scene immediately after the collision. Defense counsel informed the judge that he first spoke with Murphy approximately two weeks before the trial. According to defense counsel, she agreed to appear and testify. She was not served with a subpoena. On the eve of trial, defense counsel learned that she was on vacation. On the morning of trial, defense counsel moved orally to continue the trial so that he could secure Murphy's presence. The judge denied the motion, reasoning that Murphy had two weeks' notice of the trial date and never communicated that she had any scheduling conflict.
Discussion. 1. Continuance. "Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case." Commonwealth v. Pena, 462 Mass. 183, 189 (2012), quoting from Commonwealth v. Bettencourt, 361 Mass. 515, 517-518 (1972). "In considering a request for a continuance, a trial judge should balance the movant's need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted." Commonwealth v. Super, 431 Mass. 492, 496-497 (2000), quoting from Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973). "A trial judge should give 'due weight' to concerns about judicial economy and the avoidance of delays that do not 'measurably contribute to the resolution of a particular controversy.'" Commonwealth v. Cruz, 456 Mass. 741, 748 (2010), quoting from Gilchrest, supra at 276-277.
Here, the case was over one year old with a date certain for trial. The Commonwealth's witnesses were present. The proposed defense witness was not under subpoena and failed to appear for trial without explanation. During the lobby conference at which the continuance was requested, defense counsel explained that he had talked to the witness two weeks earlier, and that she was present at the scene of the accident. However, he made no offer of proof as to what she would say if she were to testify. In these circumstances, it was not an abuse of discretion for the judge to determine that the inconvenience and increased cost of further delay outweighed the defendant's need for additional time.
Nor did the judge abuse her discretion when she again declined to grant a continuance at the end of the first day of trial when she heard, for the first time, that the witness would testify that she observed the defendant immediately after the accident and noticed no odor of alcohol or impaired balance. Once the jury were sworn and the presentation of evidence was underway, the inconvenience and increased cost of a continuance clearly exceeded the defendant's interest in further delay, particularly when counsel offered no assurance of when, if at all, the witness would be available to testify. See Commonwealth v. Hanger, 6 Mass. App. Ct. 407, 418-419 (1978).
2. New trial motion. On appeal, the defendant claims the judge abused her discretion in denying his motion for new trial, in which he argued that defense counsel was constitutionally ineffective because he (a) failed to subpoena Murphy to secure her testimony at trial, and (b) asked questions of the arresting officer that revealed the defendant's postarrest silence. We review a judge's decision to allow or to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). The defendant has failed to meet that burden here.
a. First, the defendant's motion for new trial does not include an affidavit from the missing witness regarding what she would have said if called to testify. Absent such evidence, it was not an abuse of discretion for the judge to conclude that the witness's absence did not deprive the defendant of a substantial ground of defense. Commonwealth v. Collins, 36 Mass. App. Ct. 25, 30 (1994). Even assuming, as the judge did at the hearing on the motion for new trial, that Murphy would have testified that "she saw the defendant right after the accident and it appeared, to her, that he was not under the influence of liquor," the defendant has failed to establish that he was deprived of a substantial ground of defense. As the judge observed, the Commonwealth's evidence was compelling, and the defendant presented a different witness who testified that he had been with the defendant earlier in the day and that he "appeared to be fine."
b. Second, trial counsel's cross-examination of the arresting officer, which revealed the defendant's postarrest silence, appears to have had a strategic purpose. It laid the foundation for argument that the defendant's statement that he "probably" could not operate the vehicle safely was related to the vehicle's condition rather than his intoxication. We cannot conclude that the strategic judgment to pursue this line of cross-examination was manifestly unreasonable. See Commonwealth v. Henley, 63 Mass. App. Ct. 1, 8 (2005) ("When arguably reasoned tactical or strategic judgments of counsel are called into question, such judgments must be shown to be manifestly unreasonable when made").
Finally, even if we were to conclude that undertaking such a cross-examination was more than mere tactical error, the defendant has failed to show that "better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The evidence against the defendant was strong. He admitted that he was the driver, and that he was involved in the accident and had consumed alcohol earlier in the day. The arresting officer testified to the odor of alcohol on the defendant's breath, and that the defendant had slurred speech, glassy eyes, and impaired balance. The defendant's impairment from alcohol was further corroborated by his inability to perform two roadside sobriety tests. Considering the totality of this evidence, we discern no abuse of discretion in the denial of the motion for new trial.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Blake, Kinder & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 21, 2016.