103 N.E.3d 1241
Mass. App. Ct.2018Background
- On Aug. 17, 2012, a Wrentham officer found the defendant parked improperly; he later observed front-right vehicle damage and saw her drive without headlights over a curb into a parking lot.
- The officer detected slurred speech, a strong odor of alcohol, and glassy/bloodshot eyes; the defendant failed two field sobriety tests and refused a third, and admitted drinking and a minor accident in Foxboro.
- The defendant was arrested, convicted of OUI, and moved for a new trial claiming ineffective assistance of trial counsel.
- At the evidentiary hearing on the motion, the defendant alone testified; she did not produce an affidavit from trial counsel or call the purported alibi/witnesses.
- The motion judge (who also was the trial judge) denied the motion; the defendant appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel standard | Counsel’s short pretrial contact and alleged unpreparedness showed serious incompetence | Trial counsel’s conduct did not fall measurably below ordinary lawyer performance | Denied — defendant did not show serious incompetency under Saferian standard |
| Failure to move to suppress statement about the accident | Counsel should have moved to suppress her admission about being in a motor vehicle accident | The statement suppression motion lacked merit and counsel not required to raise futile motions | Denied — no showing the suppression motion would have succeeded |
| Failure to move to dismiss on operation element of OUI | Counsel should have moved for dismissal/required finding challenging proof of operation | No indication such a motion would have been successful; counsel need not raise meritless motions | Denied — defendant failed to show omission prejudicial or likely meritorious |
| Failure to contact or call three witnesses | Witnesses would have testified she was not under the influence and their absence shows prejudice | Defendant produced no affidavits or testimony from those witnesses; negative inference permissible | Denied — defendant’s solo, self-serving testimony insufficient and judge properly deferred to trial judge’s credibility findings |
Key Cases Cited
- Commonwealth v. Grace, 397 Mass. 303 (discussing review standard for new-trial motions)
- Commonwealth v. Fappiano, 69 Mass. App. Ct. 727 (special deference when motion judge was trial judge)
- Commonwealth v. Buck, 64 Mass. App. Ct. 760 (same)
- Commonwealth v. Saferian, 366 Mass. 89 (establishing ineffective-assistance standard)
- Commonwealth v. Comita, 441 Mass. 86 (no duty to raise meritless motions)
- Commonwealth v. Martinez, 86 Mass. App. Ct. 545 (permissible negative inference when no counsel affidavit)
- Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773 (affirming deference to trial-judge credibility assessments)
- Commonwealth v. McCormick, 48 Mass. App. Ct. 106 (noting alleged failures may reflect tactical decisions)