Opinion
22-P-232
09-28-2022
COMMONWEALTH v. NYAPILAH COLE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a jury trial in the District Court, the defendant was found guilty of operating a motor vehicle while under the influence of liquor (OUI-liquor), operating a motor vehicle while under the influence of drugs (OUI-drugs), and negligent operation of a motor vehicle. He was found guilty of the subsequent (third) offense portion of the OUI-liquor charge following a jury-waived trial. The defendant filed a motion for new trial (motion) which was denied after an evidentiary hearing. On appeal, the defendant claims that his trial counsel was ineffective. We affirm.
Prior to trial, the defendant pleaded guilty to operating with a suspended license; the judge dismissed a charge of operating with a suspended license as a result of a prior OUI at the request of the Commonwealth.
Although his direct appeal and his appeal from the denial of his motion for new trial were consolidated, he makes no separate argument based on his direct appeal, and therefore we need not address it.
1. Background.
We recite the relevant facts that the jury could have found, reserving certain facts for later discussion. On February 15, 2019, at approximately 10 £.M., Trooper Peter Pollard saw a car pull onto Route 20 in Auburn, traveling at such a high rate of speed that the body of the car leaned as it made the turn onto the highway. Trooper Pollard activated his lights and siren. The driver (later identified as the defendant) did not pull over for more than a quarter of a mile, when he initially stopped but then rolled forward another thirty feet. The trooper saw the driver's side door open, and the defendant leaned out with his hands up. As he approached the car, the trooper heard the defendant say "please." While talking with the defendant, Trooper Pollard smelled an odor of alcohol on the defendant's breath. He also noticed that the defendant's eyes were glassy and bloodshot, and his speech was slurred and labored. The defendant said that he had one beer and had smoked marijuana within the past twenty minutes. An unopened can of beer was in the cup holder next to the defendant. The defendant told the trooper that he was driving home because his pregnant wife was in labor and having contractions.
Trooper Pollard asked the defendant to step out from the car, which he did. The defendant walked in a "slow and deliberate manner, as if walking on ice;" however, there was no ice present. Trooper Pollard explained and conducted field sobriety tests, including the nine-step walk and turn test and the one-leg stand test. The defendant did not complete either test to the trooper's satisfaction, at which time he was placed under arrest. While in the cruiser, the defendant pleaded with the trooper telling him that "he was trying to do the right thing." The defendant's cell phone rang serval times. Trooper Pollard, with the defendant's permission, answered the phone; he spoke to the defendant's wife and explained the situation.
2. Discussion.
We review the denial of a motion for new trial "for a significant error of law or abuse of discretion." Commonwealth v. Sanchez, 100 Mass.App.Ct. 644, 647 (2022). "Special deference" is given to the motion judge who, as was the case here, was also the trial judge. Commonwealth v. Nieves, 429 Mass. 763, 771 (1991) .
Generally, to prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that counsel's "serious incompetency, inefficiency, or inattention," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) . "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) .
a. Commonwealth's motion to dismiss.
Before trial, the Commonwealth filed a motion to dismiss the OUI-drugs charge, citing its inability to present testimony of a drug recognition expert. Trial counsel objected, stating that "it's more beneficial [to my argument and theory of defense] to have that charge as well." The judge did not dismiss the charge. The defendant argues that this strategy (for which he claimed that he was not consulted) subjected him to a conviction for OUI-drugs that he would not otherwise have faced if the motion was allowed.
Notably, the defendant's claim is in its "weakest form," as it is not supported by an affidavit from trial counsel. Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). In denying the motion, the judge found that trial counsel made a strategic decision to proceed with both charges, hoping to convince the jury that the trooper did not know whether the defendant was under the influence of drugs or alcohol. Trial counsel pursued a strategy that cast doubt on the defendant's impaired operation and pointed to gaps in the trooper's testimony. This tactic, had it been successful, could have resulted in a not guilty verdict on the OUI-liquor charge. See Commonwealth v. Durakowski, 58 Mass.App.Ct. 92, 93 (2003) (defense counsel's strategy of conceding guilt on lesser offense in pursuit of acquittal on more serious offense was not manifestly unreasonable). Unsuccessful defenses are not necessarily the product of unreasonable strategic choices. See Commonwealth v. Valentin, 470 Mass. 186, 190 (2014). We therefore agree with the judge that "[w]hile this strategy was unsuccessful it was not manifestly unreasonable." See Commonwealth v. White, 409 Mass. 266, 272 (1991).
We also note that on appeal the defendant acknowledged this tactic posed "particular strategic advantages."
b. Failure to object to the trooper's testimony.
The defendant next argues that trial counsel made a number of errors over the course of the trial that cumulatively "undermined confidence that the trial produced a just and reliable outcome." He contends that trial counsel should have objected to the trooper's (1) references to field sobriety tests (FSTs), (2) explanation of how the FSTs were conducted, and (3) opinion about the defendant's performance on the FSTs and impairment.
We assume, without deciding, that trial counsel's failure to object was error, and thus review each claim in turn to determine whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Heywood, 484 Mass. 43, 49 (2020). See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002) ("when a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel . . . we do not evaluate the ineffectiveness claim separately").
(i). Use of the phrase "field sobriety test."
In a prosecution for OUI-drugs, a witness should use the term "roadside assessment" rather than FST. See Commonwealth v. Gerhardt, 477 Mass. 775, 785 (2017). But as was the case here, where the defendant is charged with both OUI-liquor and OUI-drugs, "it is not practicable to eliminate the concept of testing entirely from trial testimony." See Id. at 784. Based on the strength of the Commonwealth's case, and the propriety of the use of the term FST in connection with the OUI-liquor charge, we conclude there was not a substantial risk of miscarriage of justice.
The defendant's reliance on a footnote in Supplemental Instruction 3 to the Criminal Model Jury Instructions for Use in the District Court is misplaced. This instruction has not been cited in any reported case, and instructions are not binding on us. See Commonwealth v. Quinn, 439 Mass. 492, 500 n.14 (2003).
(ii). Administration of FSTs.
The defendant contends that trial counsel should have objected to Trooper Pollard's testimony about how he typically conducts FSTs. The defendant parses the trooper's testimony too finely. Trooper Pollard described the FSTs, explained how each test was administered, and reported his observations of the defendant's performance. Contrary to the defendant's claim, this was not habit evidence. Cf. Mass. G. Evid. § 406(b) (2022) ("[e]vidence of an individual's personal habit is not admissible to prove action in conformity with the habit on a particular occasion"). Where the trooper testified to his direct observations as a percipient witness, there was no substantial risk of a miscarriage of justice.
(iii). Performance on FSTs and impairment.
The defendant claims that it was improper for the trooper to testify that the defendant had failed the FSTs and was impaired. While a trooper is prohibited from testifying that a defendant passed or failed an FST in connection with a prosecution for OUI-drugs, he is permitted to testify that a defendant passed or failed an FST in a prosecution for OUI-liquor. See Gerhardt, 477 Mass. at 776, 784. Similarly, an officer may offer lay opinion as to a defendant's level of impairment on an OUI-liquor charge but not on an OUI-drugs charge. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (no error in admission of officer's opinion that defendant was "probably impaired"). See also Gerhardt, supra at 786 ("lay witness may testify [to] a defendant's observable appearance, behavior, and demeanor, but may not offer an opinion as to . . . intoxication")
After describing the defendant's performance on the FSTs, Trooper Pollard testified that the defendant did not perform them to his satisfaction. He did not use the words pass or fail and did not correlate the defendant's performance with impairment from a particular substance. Insofar as Gerhardt prohibits lay opinion testimony about impairment in OUI-drugs cases, we note that trial counsel did not object to the testimony or request a limiting instruction, consistent with her trial strategy addressed supra. See Gerhardt, 477 Mass. at 776-777. Moreover, evidence that is admissible on one charge, but not another charge in the same trial, does not automatically require exclusion of the evidence altogether. See Commonwealth v. Roberts, 433 Mass. 45, 48 (2000) .
c. Failure to present evidence of wife's pregnancy.
The defendant contends that trial counsel was ineffective for failing to present evidence of the defendant's wife's pregnancy to explain his behavior, as promised in counsel's opening statement. The jury heard evidence that the defendant told the trooper during the stop that his wife was pregnant and in labor. In fact, when the wife picked up the defendant on the night of his arrest, she was noticeably pregnant. Although the defendant and his wife submitted affidavits, neither addressed the status of the wife's labor on the night of the arrest, nor the timing of the child's birth. To the extent that trial counsel referenced this potential testimony in her opening statement, there was no substantial risk of a miscarriage of justice where the comment was fleeting, and the evidence would have been cumulative and irrelevant. See Commonwealth v. Carlton, 43 Mass.App.Ct. 702, 705 (1997) (not producing evidence mentioned in opening statements not per se ineffective assistance of counsel). See also Commonwealth v. Drew, 447 Mass. 635, 650 (2006) (failure to offer cumulative evidence not ineffective assistance of counsel).
d. Motion for required finding of not guilty of OUI-drugs.
The defendant argues that trial counsel failed to make an adequate argument in support of her motion for a required finding of not guilty of OUI-drugs. Our review is hampered by an insufficient record of this argument before the judge. "It is the defendant's burden, as appellant, to bring us a satisfactory transcript." Commonwealth v. Montanez, 388 Mass. 603, 604 (1983). See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019).
We decline to consider separately whether the Commonwealth presented sufficient evidence for a conviction of OUI-drugs, as suggested in the defendant's "Statement of Issues." See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Here, the OUI-drugs conviction resulted from the defendant's admission to the use of marijuana twenty minutes before being stopped and the reasonable inference that he was still under its influence while operating a motor vehicle, which is expressly proscribed by G. L. c. 90, § 24 (1) (a) (1). Therefore, the Commonwealth was not required to prove that marijuana also falls within the definitions of "narcotic drugs, depressants or stimulant substances" in G. L. c. 94C, § 1. G. L. c. 90, § 24 (1) (a) (1). This is unlike Commonwealth v. Ferola, 72 Mass.App.Ct. 170, 174 (2008), upon which the defendant relies, as Ferola addressed the Commonwealth's burden on an OUI-drugs charge based on depressant substances. For these reasons, we conclude that trial counsel was not ineffective.
The defendant claims that the alleged errors cumulatively created a substantial risk of a miscarriage of justice, requiring reversal. Given our conclusions, this claim also fails.
Judgments affirmed.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.