COMMONWEALTH v. DURAND (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant, Luis Durand, was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), second offense.² On appeal, he contends that the judge abused her discretion in denying his motion for a mistrial and his postjudgment motion for a new trial predicated on ineffective assistance of trial counsel. We affirm.

Background. On March 22, 2014, a woman (hereafter, “civilian witness”) was driving in Chelmsford on her way home when she noticed a motor vehicle “stopping and starting,” passing through stop signs at several intersections without stopping, and passing through a red light at another intersection without stopping. The woman believed that “something was wrong,” and “decided to follow the vehicle.” As she followed the vehicle, she saw it travel “on the opposite side of the road,” in the “oncoming lane of traffic.” She called 911, reported her observations and her location, and “stayed on the line until [the 911 operator] confirmed that the vehicle that [police officers] had apprehended was the vehicle that [she] had been following for the last few miles.”³

Chelmsford Police Officer Dennis Kelleher, one of two officers to respond to the 911 call, testified that the driver of the stopped vehicle, identified as the defendant, spoke with slurred speech, had red and glassy eyes, and had a strong smell of alcohol on his breath. The defendant initially denied consuming alcohol, but then admitted to having had “a little bit to drink.” Officer Kelleher then asked the defendant to switch off the engine and exit the vehicle. Next, Officer Kelleher asked the defendant to attempt a battery of field sobriety tests. The defendant was unable to successfully recite the alphabet, perform the one-legged stand test, or perform the nine-step walk and turn test. Thus, Officer Kelleher placed the defendant under arrest. At this time, the defendant became belligerent, swore at Officer Kelleher, told him that he was “going to fuck [him] up,” and told him that “he was going to get his boys ․ to kill [him,] as well.”

Before trial, the defendant moved in limine to exclude the audio of the civilian witness's 911 call. The judge allowed the motion because the Commonwealth could not authenticate the audio clip without the testimony of the 911 operator or the civilian witness who made the call, neither of whom was present at the beginning of the trial. Without the 911 tape, the Commonwealth could not prove the elements of negligent operation of a motor vehicle, and thus dismissed that count.

In her opening statement, defense counsel stated, in relevant part, “[T]he officer that was speaking to [the defendant] never saw him driving; never saw any kind of erratic driving, never saw any dangerous driving. There was no accident involved in this case. There were no accusations of speeding or that he observed any speeding or any kind of bad driving.” At the end of her opening statement, defense counsel asked the jury to listen to the evidence and “ask the questions about what is not there.” She asked the jury to consider that “no evidence of driving, of speeding or an accident or anything like that was observed.”

Following defense counsel's opening statement, the civilian witness, who had been summonsed for trial, appeared in court. The Commonwealth so informed the judge, and defense counsel thereupon asked the judge to exclude the civilian witness from testifying. After hearing from both parties, the judge denied this request. The defendant then moved for a mistrial. The judge heard from both parties, denied the motion for a mistrial, and offered the parties an opportunity to supplement their opening statements. The judge also instructed the jury, inter alia, that the civilian witness recently arrived at the court house, and that the lawyers would be allowed to “add to their opening statements to address the testimony of this witness who arrived just recently.”

Discussion. The defendant contends that the judge abused her discretion in denying the motion for a mistrial. In view of the judge's broad discretion to grant or deny such motions, her consideration of less drastic alternatives, and her clear instructions, the argument is unavailing.

“We review the denial of a motion for a mistrial for abuse of discretion.” Commonwealth v. Martinez, 476 Mass. 186, 197 (2017), citing Commonwealth v. Lao, 460 Mass. 12, 19 (2011). “The trial judge is in the best position to assess any potential prejudice and, where possible, to tailor an appropriate remedy short of declaring a mistrial.” Martinez, supra. See Commonwealth v. Amran, 471 Mass. 354, 360 (2015) (“A trial judge is in the best position to determine whether a mistrial, an extreme measure available to a trial judge to address error, is necessary, or whether a less drastic measure, such as a curative instruction, is adequate”). “[T]he burden of demonstrating an abuse of discretion is a heavy one.” Martinez, supra, quoting Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985).

Here, the judge heard the parties, advised that she would instruct the jury on the civilian witness's late arrival, and permitted the parties to “reopen to address her potential testimony.” The judge then asked counsel if there was “[a]nything else that you want me to tell them?” Defense counsel responded, “No, your Honor.” See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (“Defense counsel acquiesced in the curative instruction and specifically indicated he was satisfied. Had he stated otherwise, the judge may have indulged his further objection; as matters stood, the judge could not know that the defendant considered the curative instruction inadequate, and had no opportunity to clarify further if necessary”). Both parties also supplemented their opening statements.

On the next day of trial, in response to defense counsel's renewal of her motion for a mistrial, the judge made a specific finding that the remedies she “implemented were sufficient to defuse any prejudice” to the defendant. The judge was in the best position to evaluate possible prejudice, and, especially given that she “consider[ed] carefully the alternatives to a mistrial,” we discern no abuse of her discretion in this case. Commonwealth v. Clements, 36 Mass. App. Ct. 205, 213 (1994). See Commonwealth v. Thomas, 429 Mass. 146, 157 (1999) (“A trial judge retains broad discretion in deciding whether to declare a mistrial, and this court should defer to that judge's determination of whether the prosecutor committed prejudicial error, how much any such error infected the trial, and whether it was possible to correct that error through instruction to the jury”). The defendant cites no persuasive authority to the contrary. Furthermore, the judge instructed the jury three times that opening statements are not evidence. The instructions were clear and we presume that the jury followed them. See Commonwealth v. Gordon, 422 Mass. 816, 827 (1996) (judge repeatedly instructed jury that opening statements are not evidence and jurors are presumed to have heeded judge's instructions).⁴

We likewise disagree with the defendant's argument that the judge abused her discretion in denying his motion for a new trial based on ineffective assistance of trial counsel. Pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), a judge may grant a new trial “if it appears that justice may not have been done.” “In reviewing the denial of a motion for new trial, we examine the motion judge's conclusions only to determine whether there has been a significant error of law or other abuses of discretion” (quotation omitted). Commonwealth v. Ferreira, 481 Mass. 641, 648 (2019). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “Motions for a new trial are granted only in extraordinary circumstances.” Commonwealth v. Comita, 441 Mass. 86, 93 (2004). Where a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell “below that ․ [of] an ordinary fallible lawyer” and that such failing “likely deprived [him] of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “[A]rguably reasoned tactical or strategic judgments” do not amount to ineffective assistance of counsel unless they were “manifestly unreasonable” when made. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

Here, the defendant claims that defense counsel made an unreasonable decision to give a misleading opening statement. We disagree. “[F]ailure to produce evidence that counsel has predicted in an opening does not automatically amount to ineffective assistance of counsel.” Commonwealth v. McMahon, 443 Mass. 409, 425 (2005). “There is, in any opening statement, a risk that promised evidence will not materialize.” Id. Furthermore, “[t]he decision whether to make an opening statement, and, if so, what details to include in that statement, are purely strategic, and the strategic benefit of announcing specific anticipated testimony in the opening statement may outweigh the risk that the testimony will not be available.” Id. We have little difficulty concluding that defense counsel here made a reasonable strategic decision to highlight the officer's lack of observation of the defendant's operation of the vehicle, and the absence of any accident. The Commonwealth had just dismissed the negligent operation count, and thus defense counsel had reason to believe that the civilian witness would not appear at trial. Moreover, defense counsel confined her opening statement to comments regarding the officer's observations, and did not mislead the jury. See Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”). Further, defense counsel effectively attacked the civilian witness's credibility through her supplemental opening statement and her cross-examination of the civilian witness. On the present record, we cannot say that defense counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” or that the defendant was “deprived ․ of an otherwise available, substantial ground of defence.” Saferian, 366 Mass. at 96. Accordingly, the judge did not abuse her discretion in denying the defendant's motion for a new trial.

Judgment affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The judge found the defendant guilty of the second offense portion of the OUI charge in a subsequent jury-waived trial. The defendant was also charged with negligent operation of a motor vehicle. That count was dismissed prior to trial upon the Commonwealth's motion.

3.   The civilian witness testified that she never lost sight of the vehicle while she was “on the phone with 911.”

4.   The defendant does not contend that the Commonwealth was responsible for the civilian witness's late arrival or that the Commonwealth acted in bad faith. Indeed, the record shows that the Commonwealth acted in good faith by dismissing the negligent operation count prior to trial when it appeared that it could not sustain its burden of proof without the civilian witness's testimony. See Commonwealth v. DiRoma, 5 Mass. App. Ct. 853, 854 (1977).