Summary
noting that the Defendant had been arrested for open and gross lewdness following his public urination
Summary of this case from Hopkins v. Nat'l R.R. Passenger Corp.Opinion
No. 09–P–1261.
2012-05-25
COMMONWEALTH v. Robert E. McGILLIVARY.
By the Court (KATZMANN, VUONO & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bifurcated trial involving two different juries, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)( a )(1). The defendant appealed, and subsequently filed three new trial motions that were denied by the trial judge. The defendant's appeal from the orders denying his new trial motions has been consolidated with his direct appeal. We address the defendant's various claims of error in turn.
1. Jury selection. During the empanelment of the jury in the OUI trial, the judge declined the defendant's request to excuse a juror who had disclosed that her mother and grandmother “were nearly killed years ago by a drunk driver.” In response to the judge's inquiry, “I need to make sure that if you are a juror in this case that you are deciding this case based solely on the evidence and the law in this case[,]” the juror responded, “I don't think it would be a problem.” The judge made additional inquiries and ultimately found the juror to be indifferent.
“When a trial judge—who is in a much better position than an appellate court to evaluate a prospective juror's ability to be impartial—has examined a juror for possible bias and declared her indifferent, appellate courts defer to the judge's discretion ‘unless juror prejudice is manifest.’ “ Commonwealth v. Jaime J., 56 Mass.App.Ct. 268, 272 (2002), quoting from Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001). Because no such prejudice was manifest, we defer to the trial judge's determination that the juror could be impartial and conclude that the judge did not abuse the “large degree of discretion” he is afforded in the jury selection process. Commonwealth v. Jaime J., supra at 275 n. 5. We add that “[a] potential juror's use of seemingly equivocal language ... is not determinative of the juror's ability to be impartial.” Id. at 274. We also reject the defendant's assertion that he was prejudiced because of the delay in producing the transcripts of his trial. According to the defendant, the judge denied his motion for a new trial without an independent memory of the juror in question. Passing on the issue whether, in the context of deciding a new trial motion, it is preferable for a judge to rely on his memory of the trial instead of reviewing a transcript of the proceedings, the defendant's argument has no merit because the juror was properly determined to be impartial in the first place.
2. Absence from the courtroom. During the empanelment of the jury in the subsequent (fourth) offense trial, the defendant argued with the court officers, refused to follow the judge's orders to speak to trial counsel and not to the judge directly, interrupted the judge, and disrupted the proceedings by speaking in a loud voice to trial counsel in open court. The judge repeatedly warned the defendant that his removal from the courtroom was imminent, but the defendant refused to modify his behavior. Ultimately, the judge ordered the court officers to remove the defendant from the courtroom. The proceedings continued and the defendant remained in lock-up for the remainder of the trial, despite the judge's efforts to have the defendant returned to the courtroom.
The defendant also declined the judge's invitation to sit in an office adjoining the courtroom so that he could hear the proceedings.
The defendant contends that the judge deprived him of his constitutional right to be present at trial. We disagree. “The ... right to be present at trial can be forfeited where the defendant has been appropriately warned and continues the disruptive behavior despite such warning.” Commonwealth v. North, 52 Mass.App.Ct. 603, 618 (2001). Here, the defendant forfeited his right to be present by engaging in overtly disruptive behavior after having been warned that he would be removed if he continued his obstreperous conduct. Our conclusion is buttressed by the defendant's explicit statements to counsel, which were conveyed to the judge, that he would not comply with the judge's orders. Moreover, the defendant declined the judge's numerous requests to return to the courtroom.
At one point, in response to a court officer's attempt to convey the judge's request that the defendant return to the courtroom, the defendant turned his back, pulled his hood over his head, and covered himself with his coat, stating, “I'm not going, you'll have to carry me, I object.”
3. Waiver of right to testify. The defendant claims that he did not knowingly, voluntarily, and intelligently waive his right to testify at the subsequent offense trial. The record reflects that after the Commonwealth rested, trial counsel was given the opportunity to confer with the defendant, who was still in lock-up, to determine whether the defendant wished to present any evidence or testify. The defendant refused to speak with counsel.
The judge asked whether trial counsel had determined whether the defendant wanted to testify, to which trial counsel responded, “I didn't get that far today but I had spoken to him back when he was talking to me earlier in the case, and he never expressed an intention to testify. And said at times that he couldn't testify.” The defense rested, and, in consultation with trial counsel, the judge included in his final charge to the jury an instruction regarding the defendant's right not to testify.
Trial counsel reported that he had “attempted to speak” with the defendant but to no avail. He stated that the defendant “wouldn't turn around and talk to me. He didn't want to talk about his case, he didn't care what happened and he walked away.”
The defendant contends that the judge should have conducted a colloquy with him regarding his right to testify. Putting aside the fact that the defendant refused to return to the courtroom, the judge was not required to conduct a colloquy. See Commonwealth v. Medina, 64 Mass.App.Ct. 708, 723 (2005). Moreover, given the defendant's familiarity with the trial process and the fact that he had elected not to testify in the earlier OUI trial in which the judge conducted a thorough colloquy, we take a dim view of his claim that he did not understand he had the right to testify. Moreover, had the defendant testified, he would have been subject to impeachment by the Commonwealth with his prior conviction of lewd and wanton conduct, an offense he committed while highly intoxicated. In these circumstances, the decision not to testify was exceedingly appropriate.
Our conclusion renders unnecessary any discussion of the defendant's related claim that trial counsel was ineffective for allegedly failing to inform him about his right to testify.
4. Admission of certified records of prior convictions and docket sheets. The Commonwealth introduced certified docket sheets and certified copies of records from the Registry of Motor Vehicles to prove the defendant's prior convictions. The defendant claims that the documents were inadmissible as violative of the confrontation clause. See Melendez–Diaz v. Massachusetts, 557 U .S. 305 (2009). There is no merit to this argument. See Commonwealth v. McGillivary, 78 Mass.App.Ct. 644, 653 (2011).
5. Ineffective assistance of counsel. The defendant claims that he was denied the effective assistance of counsel during the OUI trial when trial counsel failed to impeach the arresting officer's credibility with evidence that contradicted the officer's testimony that he did not know the defendant.
According to the defendant, the same officer had arrested him for open and gross lewdness less than three months before arresting him on the OUI charge. The judge found that counsel's decision to forego this line of questioning was a reasonable tactical decision because the jury would have learned that the defendant had been arrested while highly intoxicated for public urination and exposure of his genitalia. The judge concluded that counsel had not been ineffective because this evidence would have gravely prejudiced the defendant and that, in any event, the defendant had not been deprived of “an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We agree with the judge's reasoning in all respects. Additionally, we note that the failure to impeach a witness rarely constitutes ineffective assistance. See Commonwealth v. Hudson, 446 Mass. 709, 715 (2006).
The officer testified that at the time of the arrest, he did not recognize the defendant, he did not know the defendant, and he did not “believe” he had ever spoken to the defendant before.
Judgment affirmed.
Orders denying motions for new trial affirmed.