Opinion
18-P-882
05-17-2019
COMMONWEALTH v. ALEKSANDR AGAPOV.
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, the defendant, Aleksandr Agapov, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. On appeal, he contends that the trial judge erred in admitting the results of a blood alcohol test, and that counsel was ineffective for stipulating to the blood alcohol content (BAC). We affirm.
The defendant was stopped by Officer McDowell at 1:30 A.M. on Chapman Street in Greenfield for traveling at fifty miles per hour in a thirty mile per hour zone. After administering several field sobriety tests, McDowell placed the defendant under arrest and brought him to the station for booking. The defendant began to have what was described as a panic attack. He was transported to the Franklin Medical Center, where he consented to a blood alcohol test. The test showed a BAC of .08 percent.
On the morning of trial, a police witness and the police chemist were unavailable. Discussions ensued between the Commonwealth and the defendant regarding a possible continuance or stipulation. Those discussions are not part of this record. The judge was told by both parties that they had agreed on a stipulation, and that the Commonwealth declined to proceed on a per se theory of the offense. See G. L. c. 90, § 24 (1) (a) (1).
General Laws c. 90, § 24 (1) (a) (1), provides, in relevant part, "Whoever . . . operates a motor vehicle [on a public way] with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor . . . shall be punished . . . ."
Under the "per se theory," the Commonwealth must prove that the defendant operated a motor vehicle on a public way with a BAC of .08 or greater, a theory that is wholly based on expert testimony. See Commonwealth v. Douglas, 75 Mass. App. Ct. 643, 651-652 (2009). Lacking an expert witness, the Commonwealth proceeded instead on a theory of impairment only. Under the "impaired operation theory," the Commonwealth must prove that the defendant operated a motor vehicle on a public way while under the influence of intoxicating liquor, which may be supported with evidence of the defendant's BAC. Id.
The Commonwealth and the defendant agreed to a stipulation that the defendant had consented to testing and had a BAC of .08 percent. The defendant maintains that the admission of the stipulation created a substantial risk of a miscarriage of justice, because numerical values in blood alcohol tests are not admissible in a case tried solely on a theory of impairment without expert testimony establishing the relationship between the test results and impairment. See Commonwealth v. Colturi, 448 Mass. 809, 817-818 (2007) ("If, however, the Commonwealth were to proceed only on a theory of impaired operation and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments [see St. 2003, c. 28, §§ 1, 21, 22], the jury would be left to guess at its meaning").
We agree that the inclusion of the reference to a BAC of .08 percent in the stipulation was error. See id. The error was invited, however, and "is reviewable only to the extent necessary to prevent a substantial risk of a miscarriage of justice." Commonwealth v. Leary, 92 Mass. App. Ct. 332, 342 (2017). "In analyzing a claim under the substantial risk standard, '[w]e review the evidence and the case as a whole,' . . . and ask a series of four questions: (1) Was there error? . . . (2) Was the defendant prejudiced by the error? . . . (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? . . . (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision? . . . Only if the answer to all four questions is 'yes' may we grant relief." Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).
On this record, it is evident that defense counsel made a strategic decision. When the Commonwealth agreed to go forward on a theory of impairment only, defense counsel told the judge, "So the Commonwealth and I, in order to avoid a continuance, sort of came up with a solution." By agreeing to the stipulation and avoiding a continuance, the defendant obtained his best opportunity for acquittal. He avoided a trial under the per se theory, and went to trial on an impairment theory that placed a greater evidentiary burden on the Commonwealth.
Nor can we say that the reference to a BAC of .08 percent prejudiced the defendant or materially influenced the jury. The judge sharply limited the purpose for which the evidence was considered. He instructed the jury, "You may also consider whether a blood test showed that the [d]efendant had consumed any alcohol. However, no matter what the reading is, the blood test is not sufficient by itself to prove that the [d]efendant was under the influence of alcohol." The judge's instruction told the jury not to focus on the reading, and limited the evidence to the discrete purpose for which it was admissible -- to corroborate testimony that the defendant had been drinking. That testimony included the observations of the officers that the defendant had red, glassy eyes and slurred his speech, had some difficulties in performing the field sobriety tests, and the defendant's own admission that he had driven after drinking, and stating that "this is all my fault."
The prosecutor did not make any reference to the BAC of .08 percent in his closing argument.
The claim of ineffective assistance fares no better. A "claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction [only] when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Strategic decisions are for counsel, and absent any record demonstrating that counsel's decision was manifestly unreasonable when made, the claim of ineffective assistance is not properly before us for resolution. See Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). Even if the inclusion of the reference to the BAC of .08 percent was manifestly unreasonable when made, for the reasons stated above, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (holding that test for prejudice under second prong of Commonwealth v. Saferian, 366 Mass. 89, 96 [1974] is same as substantial risk analysis).
Judgment affirmed.
By the Court (Hanlon, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 17, 2019.