COMMONWEALTH v. SMITH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Kelley M. Smith, the defendant, was involved in a hit-and-run collision and convicted of leaving the scene of property damage in violation of G. L. c. 90, § 24. She appeals from the order denying her motion for new trial, arguing that her trial counsel was ineffective by failing to move to suppress her roadside statements given to police and by failing to request a humane practice instruction. We affirm.

Background. A jury could have found the following facts. In February, 2016, at 11:30 p.m., Kelly Chilmark heard a “loud bang” outside her house in Orange. When she looked out of a second-floor window, she saw a light-colored four-door sedan up against her parked car in front of her house. Chilmark went downstairs immediately. When she opened the front door, she saw the sedan's driver start to “pull away” to leave. The driver was a woman with shoulder-length curly blond hair and wearing a dark-colored “hoodie.” A man with a full beard and mustache was in the passenger seat. Chilmark yelled out to them to “leave the car alone” and that she was calling the police. The driver got out of the sedan and stated that she didn't know what happened. Chilmark returned inside her house to call the police. While on the telephone, Chilmark saw the sedan drive away and observed the woman “running up the street into the [next-door] neighbor's house” (neighbor's house).

The police appeared at Chilmark's house within a few minutes. When Chilmark went to greet the officer, she saw that her car was “at least five feet sideways from where [she] had parked it,” and there was damage from “right behind the driver's mirror all the way down the back of the car.” The taillights were shattered and the license plate was detached and broken. There were also burnt-rubber tire tracks. Chilmark then brought the officer to her neighbor's house. The officer knocked on the front door. When he noticed that the door was unlocked, he walked in and announced himself multiple times as a police officer. He eventually made contact with the man who owned the house, but did not see the female driver.

Meanwhile, another officer had located a sedan on a nearby street that matched the description of the hit-and-run vehicle. There was fresh damage on the car that was consistent with the described collision, the car's hood was warm, and its tailpipe was moist. Inside the car, police discovered a woman's purse containing items that were “addressed [to] or named” the defendant. Surrounding towns were notified to be on the lookout for the defendant.

Five minutes after the officer had left the area of Chilmark's home, Chilmark saw a dark four-door sedan pull up to the neighbor's house. She then saw the woman driver of the vehicle involved in the accident leave the neighbor's house with her “hoodie up.” Chilmark called the police again to report the second sighting of the woman. Soon after, an officer located a vehicle matching Chilmark's description of the second car. The defendant was in the passenger seat and her daughter in the driver's seat. When questioned on the scene, the defendant initially denied that she had been in Orange that evening, but after an officer stated that a witness had seen her there, she admitted that she had been there earlier. The defendant stated that she had been at a friend's house, and that she had run into the house to use the bathroom. The officer, detecting alcohol on her breath, asked if she had been drinking. The defendant initially denied it but later admitted to having one drink. When told that the owner of the damaged car had seen her driving, the defendant responded, “That rat bitch. That fucking bitch.”

On March 14, 2016, a complaint issued in the District Court charging the defendant with operating a motor vehicle with a suspended license under G. L. c. 90, § 23, leaving the scene of property damage under G. L. c. 90, § 24, and a civil infraction of marked-lanes violation under G. L. c. 89, § 4A. A jury trial was conducted on November 30, 2016. The jury found the defendant guilty of leaving the scene of property damage.² The defendant filed a timely notice of appeal but did not pursue it. On March 20, 2018, the defendant filed a motion for new trial, raising the two claims of ineffective assistance of counsel. The trial judge denied the motion without a hearing on March 25, 2019, explaining that “[n]either claim is persuasive.” The order was timely appealed.

Discussion. In her motion for new trial, the defendant claimed that she was denied effective assistance of counsel because her trial counsel failed to move to suppress her statements to police and failed to request a humane practice instruction. We review the denial of a motion for new trial “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). A trial judge “upon motion in writing may grant a new trial at any time if it appears that justice may not have been done.” Commonwealth v. Lane, 462 Mass. 591, 597 (2012), quoting Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).

We see no merit in either of the defendant's claims. To succeed on an ineffective assistance claim, a defendant must prove (1) that her attorney showed “serious incompetency, 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, [(2) that] it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Phinney, 446 Mass. 155, 162 (2006), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the decision not to file a motion to suppress was not a “serious incompetency, inefficiency, or inattention of counsel” because that motion would have failed. Saferian, supra. Miranda warnings are not required “prior to ‘[g]eneral on-the[-]scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process’ ” (citation omitted). Commonwealth v. Merritt, 14 Mass. App. Ct. 601, 604 (1982). It is clear the defendant was not in custody when questioned by police. She was asked whether she had been in Orange that night, why she had run into the neighbor's house, and whether she had been drinking.³ There can be no doubt the questioning was “investigatory in nature, not accusatory,” Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 504 (2011), and occurred in the “public view.” Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 986 (1990). As pointed out by the judge, it was actually the defendant herself who terminated the police questioning after she announced that she knew her rights and did not have to speak with the officer.

Also, because there was no reason to suspect the defendant's statements to police were involuntarily made, her counsel's failure to pursue a humane practice instruction did not deprive her of a substantial ground of defense. See Commonwealth v. Kolenovic, 478 Mass. 189, 199 n.10 (2017) (“The humane practice instruction conveys to the jury that the prosecution must prove the voluntariness of the statements beyond a reasonable doubt”). The voluntariness of statements becomes a live issue at trial “if substantial evidence of involuntariness is produced.” Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007). Here, no such evidence was produced. As provided supra, the defendant was not in custody and there was no evidence in the record suggesting that the police threatened the defendant or that she was incoherent.⁴ Additionally, she was not handcuffed or otherwise restrained.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The Commonwealth had dismissed the first charge prior to trial, and the trial judge found the defendant not responsible for the third charge.

3.   Apparently concerned for her husband, presumably the passenger observed in the car by the victim, the defendant asked the officer whether he had been arrested.

4.   The defendant admitted to having a single drink, but that falls well short of the necessary standard to prove the involuntariness of subsequent statements. “[E]vidence of a defendant's consumption of alcohol does not in itself trigger an obligation to inquire into the voluntariness of any statement [s]he made, or to instruct the jury on the voluntariness of such statement.” Kirwan, 448 Mass. at 318.