COMMONWEALTH v. AHERN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this direct appeal from his conviction of motor vehicle homicide, the sole claim raised by the defendant is that his trial counsel was constitutionally ineffective for failing to call Gregory Feeney as a trial witness. We agree with the prior determination by the trial judge (in his ruling on the defendant's posttrial motion for a new trial) that trial counsel was not ineffective for that reason, and affirm the conviction.²

We agree with the conclusion by the motion judge (who was also the trial judge) in his order on the defendant's motion for new trial that the decision not to call Feeney as a witness was a strategic decision by trial counsel, and that the decision was not manifestly unreasonable.³ Counsel was concerned that Feeney's testimony would reveal that the defendant did not have an ownership interest in Slate Bar and Grille (contrary to the testimony of several other defense witnesses) and that the revelation would tend to discredit the defense theory.⁴ In light of that concern, counsel made a strategic decision not to call Feeney, whose testimony (suggesting that the defendant did not appear intoxicated while they were together) in any event would have been of marginal relevance at best; Feeney and the defendant parted company at approximately 10 p.m. on September 13, 2012, and the accident giving rise to the defendant's conviction occurred at approximately 12:15 a.m. on September 14, 2012. The evidence of the defendant's intoxication at the time of the accident was overwhelming, and included videotape of the defendant drinking excessively during the period after Feeney left. Put simply, even were we to conclude that counsel's strategic decision not to call Feeney as a witness had no reasonable basis, it did not deprive the defendant “of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Judgment affirmed.

FOOTNOTES

2.   Contrary to the Commonwealth's contention, the defendant was not obliged to file a cross appeal from the judge's order allowing his motion for new trial (on other grounds) in order to preserve his right to appellate review of his present claim. We may affirm a ruling of a lower court on any basis, see Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997), and the defendant raised his present claim in defense of the Commonwealth's appeal from the judge's order. In this court's published opinion reversing that order, we did not address the defendant's claim, observing (albeit incorrectly) that “[t]he defendant does not challenge [the judge's rejection of his claim of ineffective assistance of counsel based on the failure to call Feeney] here.” Commonwealth v. Ahern, 96 Mass. App. Ct. 197, 202 n.7 (2019). Whether the defendant's failure to contest that description in a petition for rehearing, or the denial by the Supreme Judicial Court of the defendant's petition for further appellate review, see 483 Mass. 1107 (2019), operates as a final adjudication of the defendant's claim presents a closer question. We need not resolve the question, however, as we conclude that the defendant is not entitled to relief on the merits of his claim.

3.   We note that the defendant directs his claim of ineffective assistance solely to counsel's failure to call Feeney as a witness at trial, and bases no claim on counsel's reference in his opening statement to Feeney's anticipated testimony.

4.   Indeed, the fact that Feeney, rather than the defendant, owned the bar would have furnished fodder for impeachment of Feeney's assertion that the defendant did not appear intoxicated, as Feeney would have had a motive to avoid potential dram shop liability.