COMMONWEALTH v. FRANZ (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant, Kathryn Franz, was found guilty of operating a motor vehicle while under the influence of liquor. She later moved for a new trial, alleging ineffective assistance of counsel and prosecutorial misconduct. The motion judge, who was not the trial judge, denied the motion after a nonevidentiary hearing, concluding that trial counsel was not ineffective, and that the prosecutor's cross-examination and closing statement were not improper. The defendant now appeals from both the underlying judgment and the order denying her motion for a new trial. We agree that counsel was ineffective for not at least interviewing a relevant witness before deciding not to call him to testify. We therefore reverse the order denying the motion for a new trial, vacate the judgment, and set aside the verdict.

Background. The jury heard the following evidence. On October 31, 2015, Massachusetts State Police Trooper Robert Sundberg responded to a single-car collision on Interstate 95 in Lexington, at approximately 7:45 a.m. Sundberg testified that, when he arrived, he observed the defendant outside of her vehicle which was pressed against a “[j]ersey barrier.” He approached her to check on her condition and, when she said that she was “okay,” Sundberg noticed the smell of alcohol coming from her breath. He also noticed that the defendant's eyes “looked kind of red and glassy.” Sundberg asked the defendant where she was coming from and she said she was coming from work. She said that she worked as a bartender and, when Sundberg asked her about the smell of alcohol, the defendant responded, “I work at a bar. What do you expect?” Sundberg asked the defendant for her license and noticed her “fumbling through her wallet in her purse and looking around.” The trooper could see the license, but she passed it by until he pointed it out to her.

The defendant agreed to perform field sobriety tests, including the nine-step walk-and-turn test. Sundberg testified that the defendant's steps were “choppy,” were not “exactly heel to toe,” and that she almost lost her balance once. The defendant also took ten steps instead of nine. The second field sobriety test was the one-leg-stand test. Sundberg described the defendant's performance on that test as “[n]othing remarkable,” although he noted that she did not keep her hands by her side because she was cold. For the last field sobriety test, Sundberg asked the defendant to count backwards from seventy-three to sixty. He testified she was able to do that and that he noticed “[n]othing remarkable” about her speech -- “[n]o heavy slur or anything.” When Sundberg asked how the crash occurred, the defendant told him that she was fumbling with her “phone.” Concluding that the defendant was intoxicated, Sundberg arrested her and placed her in the back of his police cruiser. He went to conduct an inventory search of the defendant's vehicle and he testified that, when he returned to his cruiser, there was a “strong odor of alcoholic beverages.”

The defendant was the only defense witness. She denied drinking alcohol on the night of her arrest, and she testified that she had fallen asleep while she was driving. She described her school and work schedule, and opined that it contributed to her being tired on the night in question.¹ She attempted to keep herself awake by rolling down the car windows and turning the volume of her music up loudly. She denied texting and driving.

In support of her motion for a new trial and before us, the defendant makes several arguments. First, she argues that her attorney was ineffective for failing to call, or even to interview, a witness who would have corroborated a significant portion of her trial testimony. She also argues that she did not voluntarily give up her right not to testify at trial because her attorney had indicated that he would discuss it with her before calling her to the witness stand; he not only failed to do so, but preempted any decision she might have made by announcing in his opening statement that she would testify. Finally, she argues that the prosecutor's cross-examination and closing argument improperly created prejudicial error. Because we agree with the defendant that counsel's failure even to interview the independent corroborating witness was error, and that it created a substantial risk of a miscarriage of justice, we do not address the remaining issues.

In support of her motion for a new trial, the defendant filed her own affidavit, an affidavit from trial counsel, and an affidavit from the proposed corroborating witness, a coworker from the night before she was arrested. The coworker, Patrick Lynch, was prepared to testify that he was an experienced bartender; that he had worked with the defendant during the previous year and throughout her shift on the night before she was arrested; that he had not seen her drink alcohol during the shift; and that he had never seen her drink alcohol while working.²

Trial counsel's affidavit is not to the contrary. He agrees that he never contacted Lynch, or asked anyone to do so because he “expected Ms. Franz to provide the same information in her testimony.” Specifically, on this issue, the attorney's affidavit states,

“Prior to trial, Ms. Franz made me aware of a fellow bartender who worked with her at [the Seaport establishment] on October 30, 2015 to October 31, 2015 and would be willing to testify for the defense that he did not observe her consume any alcoholic beverages and did not believe she was intoxicated but rather was very tired that night. I recall that she mentioned that when he last saw her at the end of their shift, approximately four hours before the accident, he told her that she should not drive because she seemed too tired. As a result, she indicated that she slept in her car in the parking lot․ I did not contact Mr. Lynch and call him as a witness for the defense because I did not believe his information was necessary based on my trial strategy and expected Ms. Franz to provide the same information in her testimony.”

Discussion. We review claims of ineffective assistance of counsel to determine whether there has been serious incompetence, inefficiency, or inattention of counsel -- behavior of counsel falling “measurably below that which might be expected from an ordinary fallible lawyer” -- and, if that is found, then typically, whether it has “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Brown, 479 Mass. 163, 170, 92 N.E.3d 1189 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Trial tactics do not amount to ineffective assistance unless “manifestly unreasonable” when undertaken. Commonwealth v. Vaughn, 471 Mass. 398, 413, 30 N.E.3d 76 (2015), quoting Commonwealth v. Haley, 413 Mass. 770, 777-778, 604 N.E.2d 682 (1992). “In the case before us, the motion judge was not the trial judge. Therefore, ‘deference is owed only to the motion judge's assessment of the credibility of the witnesses; [the appellate] court is in “as good a position as the motion judge to assess the trial record.” ’ Commonwealth v. Phinney, 446 Mass. 155, 158, 843 N.E.2d 1024 (2006), [quoting] Commonwealth v. LeFave, 430 Mass. 169, 176, 714 N.E.2d 805 (1999). The hearing on the motion for a new trial was nonevidentiary. [For that reason, we] are in the same position as the motion judge to evaluate the record.” Commonwealth v. Fortini, 68 Mass. App. Ct. 701, 703, 864 N.E.2d 1204 (2007).

“Failure to call a witness will not be considered ineffective assistance of counsel absent a showing of prejudice.” Vaughn, 471 Mass. at 413, 30 N.E.3d 76, citing Commonwealth v. White, 409 Mass. 266, 275, 565 N.E.2d 1185 (1991). The significant issue here, in our view, is counsel's failure even to interview Lynch. For that reason, it is difficult to see the decision not to call him to corroborate the defendant's testimony as a reasonable trial tactic. Compare Commonwealth v. Millien, 474 Mass. 417, 430, 50 N.E.3d 808 (2016), quoting Commonwealth v. Haggerty, 400 Mass. 437, 442, 509 N.E.2d 1163 (1987) (“Failure to investigate the only defense a defendant has, if facts known to or with minimal diligence accessible to counsel support that defense, falls beneath the level of competency expected”). At least on the record before us, this does not appear to be a situation where the witness was vulnerable to impeachment or might otherwise have undermined the defendant's case. Contrast Vaughn, supra (defense counsel not ineffective for failing to call witness who might have exonerated defendant because witness had already been impeached for inconsistencies and criminal charges). In this case, Lynch had been a bartender for more than thirty years, experience that, at least arguably, qualified him to discern whether someone was intoxicated. It appears that he knew the defendant only professionally; he was not a family member or a romantic partner or otherwise subject to impeachment as biased.

Counsel's stated reason for not interviewing Lynch, that his testimony would have been cumulative, would have some force had there been other independent witnesses to corroborate the defendant's testimony. However, the defendant's testimony stood alone here and the prosecutor argued, likely effectively, that the defendant's testimony was “self-serving.” Contrast Brown, 479 Mass. at 170, 92 N.E.3d 1189 (counsel not ineffective because omitted testimony would not “have changed the outcome”); Commonwealth v. Gorham, 472 Mass. 112, 118, 32 N.E.3d 1267 (2015) (counsel not ineffective because he hired investigator to investigate defendant's intoxication).

The Commonwealth counters that Lynch's testimony only addressed the time that the defendant was working -– a period that ended hours before the accident. However, the Commonwealth's theory at trial was not that the defendant was drinking by herself in the parking lot after her shift. In fact, the prosecutor argued to the jury that they could infer from the fact that the defendant was working at a bar “that she was actually drinking at work while she was a bartender at a bar from the hours of 4:00 PM until approximately 2:45, like she said․ She said ․ she's in the parking lot by herself taking a nap ․ [S]he wants you to believe [that was] because she was tired. But in fact, ladies and gentlemen, I think it's clear from her testimony that she was waiting to sober up to be able to drive home safely. Unfortunately, she didn't wait long enough.” Lynch's testimony might well at least have weakened that argument.

While the evidence at trial certainly supported the jury's verdict, this was not an overwhelming case for the Commonwealth. Only one police witness testified; there was no medical or other scientific evidence to prove the defendant's intoxication, and even the prosecutor conceded the defendant “[did] okay on some” of the field sobriety tests.

“[W]here counsel was ineffective for failing to present an available ground of defense, that defense is ‘substantial’ for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented․ The defendant need not prove that he or she would have been found not guilty if defense counsel had presented the jury with this ground of defense. See Strickland [v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] (‘a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case’).” Millien, 474 Mass. at 432-433, 50 N.E.3d 808. “[W]here a strategic decision is made to conduct something less than a complete investigation of a potentially substantial defense, either because defense counsel decided to forgo that defense or to present it at trial without complete investigation, we ask whether it was manifestly unreasonable to conduct so limited an investigation.” Commonwealth v. Epps, 474 Mass. 743, 757, 53 N.E.3d 1247 (2016). On these facts, we cannot say that failing to call Lynch to testify, or even to interview him, was not manifestly unreasonable, or that it might not have accomplished a better result for the defendant.

Order denying motion for new trial reversed.

Judgment vacated.

Verdict set aside.

FOOTNOTES

1.   At the time of the incident, the defendant was a Framingham State University student, and a bartender at an establishment in the Seaport District of Boston. Two days prior to the accident, she had attended a one-hour lecture at 8:30 a.m. and then worked out at the gym. From 1:30 p.m. to 4:30 p.m. she had a “lab” class, and then she went to work to cover for a coworker from 6 p.m. to midnight. She slept from 1 a.m. to 8 a.m. On the day before her arrest, she awoke at 8 a.m. to work on her midterm paper; she went to the gym, and then worked another shift at her job. She arrived at 4 p.m. and worked until 3 a.m. She testified that, because she had not slept since 8 a.m. the previous day, she tried to sleep in the parking lot near where she worked before she tried to drive home.

2.   His full affidavit reads, “Under oath, I depose and state the following:“1. My name is Patrick Lynch and I currently reside in Boston, Massachusetts.“2. I am a licensed Massachusetts real estate broker and have worked in that field for over twenty (20) years. In addition, I also have been employed as bartender for thirty-one (31) years.“3. On the night beginning on October 30, 2015, I worked alongside the defendant, Kathryn Franz, a fellow bartender at [the Seaport establishment], from the time that I arrived at approximately 6:00 p.m., when our shifts began, until our departure at approximately 3:00 a.m.“4. I know Ms. Franz in the capacity of our employment and regularly worked with her for more than a year prior to the aforementioned night.“5. I have never witnessed her drinking any alcoholic beverages during her shift as a bartender and have observed her at all times acting professionally in representing her employer and serving the public.“6. I did not observe Ms. Franz drinking during her shift on the night of October 30, 2015.“7. In my years of experience working as a bartender, I have learned to identify the signs of intoxication and, at no time during the aforementioned night, did Ms. Franz exhibit any signs of being under the influence of alcohol.“8. I recall that Ms. Franz was very tired that evening. She had been studying for college mid-term exams and had covered another employee's shift the previous night. Bartending is very physically and mentally demanding and exhausting at a crowded bar like [the Seaport establishment].“9. I was willing and offered to Ms. Franz to testify at trial concerning these facts; however, I was never contacted by her attorney ․, or anyone on his behalf seeking my information and testimony.“Signed under the pains and penalties of perjury on this [19] day of July 2017.”