Opinion
21-P-74
04-27-2022
COMMONWEALTH v. Daniel P. TOMPKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was found guilty after a bench trial of two counts of manslaughter while operating a motor vehicle under the influence, in violation of G. L. c. 265 § 13 ½; two counts of involuntary manslaughter, in violation of G. L. c. 265 § 13 ; two counts of felony motor vehicle homicide, in violation of G. L. c. 90 § 24G (a ) ; and one count of negligently operating a motor vehicle while under the influence resulting in serious bodily injury, in violation of G. L. c. 90 § 24L. These convictions arose from a horrific car accident in which the defendant was allegedly driving while intoxicated and which resulted in the deaths of two passengers. Almost eight years after his trial the defendant brought the instant motion for a new trial. In his motion, the defendant argued, among other things, that the failure to utilize a blood spatter expert and a medical expert, whose testimony would have collectively created a reasonable doubt as to whether the defendant was the driver of the vehicle at the time of the accident, amounted to ineffective assistance of trial counsel warranting a new trial. The trial judge denied this motion without hearing, finding that the expert testimony would not have created a reasonable doubt as to the defendant's guilt. We now reverse and remand for an evidentiary hearing on the defendant's motion.
This case involved a terrible automobile crash on the evening of June 20, 2007. The primary question at trial was whether the defendant or Jeffrey Blake was driving the defendant's sport utility vehicle (SUV) at the time of the crash. Their girlfriends, Melissa Duff and Heather Buffum, were tragically killed in this accident. The defendant and Blake survived and gave inconsistent testimony about who was driving. Blake, who did not have a driver's license and had only once been issued a learner's permit in 1995, testified that the defendant was driving. He testified that he was in the backseat with his girlfriend Buffum, while the defendant's girlfriend Duff was in the front passenger seat.
The defendant testified that he had been driving most of the day, but that Blake was driving at the time of the crash. The defendant said that, prior to the crash, due to feeling too intoxicated to continue to drive, he had switched seats with Blake, who had been sitting in the front passenger seat while the two women were in the backseat. A fisherman, Robert Hanrahan, who saw the four at a boat ramp just prior to the crash, testified that he was sure that when the SUV drove away from the ramp the two women "got in the back."
In support of the motion for a new trial, the defendant submitted two affidavits. One was from Dr. Elizabeth Laposata, an anatomic and forensic pathologist as well as a certified bloodstain pattern analyst. She testified in her affidavit that "the injuries to Blake are consistent with his having been the driver," while "the injuries sustained by [the defendant] are not consistent with his having been in the driver's seat but are more consistent with his having been ejected from the front passengers seat."
At trial, there was testimony by three witnesses that Blake had shown them a steering wheel-shaped bruise on his chest or torso subsequent to the accident. The trial judge did not credit this testimony. Dr. Laposata indicated in her affidavit that bruising could have appeared on Blake's chest "following his release from the hospital even though medical records do not specifically record any bruising."
A second affidavit came from a blood spatter expert, Paul Kish. Kish analyzed the shape and directionality of five stains in the front seat area that were determined to contain blood from Blake. He concluded that Blake was "bleeding while located in the front of the vehicle," although his affidavit does not specifically state that Blake was driving the car.
In his motion for a new trial, the defendant argued, among other things, that the failure to utilize a blood spatter expert and a medical expert amounted to ineffective assistance of trial counsel, warranting a new trial.
Discussion. An evidentiary hearing is required on a motion for a new trial "if the motion and affidavits raise a substantial issue." Commonwealth v. Britto, 433 Mass. 596, 608 (2001). Dr. Laposata's affidavit, which asserts that only Blake's injuries and not the defendant's injuries were consistent with having been driving, raises a substantial issue that required an evidentiary hearing. Were it in fact true that only Blake's injuries were consistent with having been the driver, that could warrant a new trial.
Of course, we express no opinion on whether that is factually true. That is the question on which an evidentiary hearing is necessary to shed light.
Kish's affidavit does not assert that Blake must have been driving the vehicle, so, on its own, it might not raise a substantial issue. We need not decide the question, however, because the defendant will be free to call Kish as a witness at the evidentiary hearing on remand, where his conclusions can be explored.
Assuming for present purposes only something we do not decide, that the actions of trial counsel fell below what might have been expected of a reasonable lawyer, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the question (under the Strickland formulation for ineffective assistance of counsel under the federal Constitution) is whether, objectively, "there is a reasonable probability that, absent the errors, the factfinder would have a reasonable doubt respecting guilt." Strickland v. Washington, 466 U.S. 668, 687-688 & 695 (1984). The standard under Saferian is at least as protective of the defendant as this. See Commonwealth v. Millien, 474 Mass. 417, 431 (2016). And, in applying that standard, the Supreme Judicial Court has made clear that "[t]he defendant need not prove that he or she would have been found not guilty if defense counsel had presented the jury with this ground of defense." See id. at 423-433.
Because we must reverse the order denying the motion for a new trial and remand the case so that the judge may hold the evidentiary hearing before reconsidering his ruling, we need not determine whether the judge applied the correct standard. We note, however, that the standard for prejudice with respect to an ineffective assistance of counsel claim is an objective one. Commonwealth v. Ray, 467 Mass. 115, 122 n.4 (2014). It does not matter that, as in the case, the motion judge was also the finder of fact at a bench trial when the case was originally tried and may well have the benefit of some detailed prior familiarity with the evidence. The question is not whether the judge, subjectively, concludes that he would have found the defendant not guilty had the evidence been presented. The question is what, objectively, the impact of the error would have been on a reasonable finder of fact coming freshly to the case. See United States v. Murray, 42 M.J. 174, 177 & 178 (C.A.A.F. 1995) (rejecting analysis by trial judge, that "I do not believe that looking at all of the errors committed by [counsel] in this case, the inactivity, reasonably would lead me to a different result on the merits," because "[t]he Supreme Court's references to reasonable probabilities and reasonable decisionmakers clearly establish that the test is objective: Whether there is a reasonable probability that a reasonable factfinder would have reached a different result"). On remand, after an evidentiary hearing, the motion judge should apply this objective standard to evaluate all the defendant's claims.
The defendant argues that "cognitive bias" may make it difficult for a judge who has convicted a defendant after a bench trial to recognize or acknowledge an injustice that occurred in handing down a conviction. Of course, we acknowledge the existence of unconscious biases that have been recognized in the social science literature. However, the defendant has not made the case here that the judge would be unable objectively to assess the impact on a neutral fact finder of evidence that defense counsel failed to bring to the court's attention at the time of trial, along with the evidence that was produced at trial.
The order denying the motion for a new trial is reversed and the case is remanded for further proceedings consistent with this opinion, including an evidentiary hearing on the defendant's motion for a new trial.
So ordered.
Reversed and remanded