Commonwealth v. Leary
AC 15-P-470
| Mass. App. Ct. | Sep 29, 2017Background
- On March 25, 2011, Leary drove a truck after drinking at a motocross event and struck a pedestrian on Dewey Street; the pedestrian later died. Leary admitted drinking (said two beers) and performed poorly on field sobriety tests; two breath samples at booking registered .19% BAC.
- Leary was indicted under G. L. c. 90, § 24G(a) for motor vehicle homicide while under the influence or having BAC ≥ .08. After a mistrial in 2013, a retrial resulted in conviction on the theory he was under the influence (jury rejected the .08% theory).
- Pretrial motion to suppress the breath test was denied; the suppression judge found officers continuously observed Leary for over 15 minutes despite the test operator not personally doing so.
- The Commonwealth sought to admit prior testimony of Officer Duffy (unavailable due to medical reasons) from the mistrial; the trial judge admitted the transcript and it was read at retrial (defense initially objected but then withdrew objection during trial).
- Defense claims on appeal included: erroneous admission of breath test; improper admission of prior testimony; prosecutorial misconduct in closing (Golden Rule appeal); failure to give a lesser‑included offense instruction (defense counsel had objected to the instruction); and various ineffective‑assistance claims relating to counsel’s tactics and evidentiary choices.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Leary) | Held |
|---|---|---|---|
| Admissibility of breathalyzer results (15‑minute observation requirement) | Regulation deviation was not substantial; officers continuously observed defendant so results reliable | Results should be suppressed because the test operator did not personally observe defendant for 15 minutes | Admission upheld: booking video and officer testimony showed continuous observation by other officers; deviation went to weight, not admissibility (no substantial deviation) |
| Admission of prior testimony of unavailable witness (Officer Duffy) | Prior testimony admissible under Mass. G. Evid. § 804(b)(1); Commonwealth notified court of anticipated unavailability | Commonwealth failed to prove unavailability; admission violated confrontation rights | No reversible error: defendant withdrew objection during trial, had cross‑examined Duffy at first trial, and advance notice reduced prejudice; review for miscarriage of justice found none |
| Prosecutor closing argument (Golden Rule / vouching) | Argument was commentary on evidence and witness credibility; not a personal vouch or reversible | Argument improperly invited jurors to put themselves in victims’ place and vouched for officer honesty | Mixed: prosecutor’s Golden Rule appeal was improper, but error was harmless given strong evidence and lack of objection; no substantial risk of miscarriage of justice |
| Failure to give lesser‑included offense instruction (defense counsel objected) | Commonwealth requested instruction; judge should have given it when evidence permitted | Objected to instruction at trial (now argues counsel ineffective for objecting) | Judicial error acknowledged (instruction should have been given), but no reversal: defense invited error and strategy supported all‑or‑nothing defense; no substantial miscarriage of justice on record |
| Claim counsel ineffective for objecting to lesser‑included instruction | N/A | Counsel failed to consult Leary and deprived him of choice to seek lesser verdict | Court did not resolve on direct appeal — preferred vehicle is motion for new trial; record insufficient to decide ineffective assistance claim |
| Other ineffective assistance claims (failure to impeach booking witnesses, admission of officer opinion, introduction of interview video) | N/A | Counsel’s omissions and affirmative acts prejudiced defense | No substantial risk of miscarriage of justice from omissions (minor inconsistencies, jury rejected .08% theory); officer’s opinion testimony was improper but harmless in context; counsel’s strategy re interview video raises factual questions and must be raised in trial court first |
Key Cases Cited
- Commonwealth v. Zeininger, 459 Mass. 775 (discusses when deviation from breath test regulation warrants suppression)
- Commonwealth v. Pierre, 72 Mass. App. Ct. 230 (purpose of 15‑minute observation rule explained)
- Commonwealth v. Hourican, 85 Mass. App. Ct. 408 (regulation ensures accuracy of breath tests)
- Commonwealth v. Housewright, 470 Mass. 665 (framework for assessing witness unavailability due to illness)
- Commonwealth v. Randolph, 438 Mass. 290 (standard for reviewing unpreserved errors and ineffective assistance interplay)
- Commonwealth v. Azar, 435 Mass. 675 (review for miscarriage of justice and factors to consider)
- Commonwealth v. Santiago, 425 Mass. 491 (improper emotional appeals and assessing prejudice)
- Commonwealth v. Gould, 413 Mass. 707 (duty to instruct on lesser included offense when evidence permits)
- Commonwealth v. Zinser, 446 Mass. 807 (preferred procedure for ineffective assistance claims: motion for new trial)
- Commonwealth v. Peixoto, 430 Mass. 654 (standards for invocation of right to counsel affecting admissibility of statements)