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Appeals Court of Massachusetts.



Decided: April 27, 2021

By the Court (Sullivan, Desmond & Singh, JJ.1)


The defendant was convicted of negligent operation of a motor vehicle and operating a motor vehicle while under the influence of alcohol. See G. L. c. 90, § 24 (2) (a); G. L. c. 90, § 24 (1) (a) (1).2 After his motion for new trial was denied, the defendant brought this consolidated appeal, contending that counsel was ineffective for failing to bring a motion to suppress, and that the evidence was insufficient to show either negligent operation of a motor vehicle or that he drove while under the influence of alcohol. We affirm the judgments and the order denying the motion for new trial.

Discussion. 1. Ineffective assistance. The defendant asserts that counsel was ineffective because the trooper who stopped his truck on September 13, 2016 lacked reasonable suspicion to do so, and trial counsel did not bring a motion to suppress. We review the denial of a motion for new trial on the basis of ineffective assistance of counsel for an abuse of discretion or other error of law. See Commonwealth v. Millien, 474 Mass. 417, 429 (2016).

“To prevail on a motion for new trial claiming ineffective assistance of counsel, a defendant must show that there has been a ‘serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurable below that which might be expected from an ordinary fallible lawyer,’ and that counsel's poor performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Millien, 474 Mass. at 429-430, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004). See Commonwealth v. Henderson, 486 Mass. 296, 302 (2020).

For purposes of assessing the viability of a motion to suppress, we turn to the facts elicited at trial as supplemented at hearing on the defendant's motion for a new trial. See Comita, 441 Mass. at 87. Around 9 p.m. on September 13, 2016, Massachusetts State Police Trooper Brian Gonzalez was driving in Springfield when an ambulance driver pulled to the side of his cruiser, pointed to a pickup truck, according to the police report, and told the trooper that the defendant was “all over the place.”3 In response, Trooper Gonzalez turned around and followed the truck.

As the trooper followed the pickup truck, it started to drift to the right, and (according to the trooper) crossed over the fog line. The trooper then pulled the truck over. At trial, defense counsel showed the trooper a photograph of the location where the defendant came to a stop. The trooper confirmed the accuracy of the photo, taken approximately one month after the defendant's arrest, which showed no fog line on the portion of the road where the defendant was stopped. Nor could a fog line be seen in that portion of the photo that stretched back along the defendant's route of travel. At the hearing on the motion to for new trial, the defendant submitted additional evidence showing that the fog line was painted in 2011 and was not repainted until 2018.

The defendant's primary argument on appeal is that there was no fog line and that the trooper's stated reason for pulling him over for this civil infraction was not borne out by the evidence.4 As a result, the defendant maintains, the motion to suppress would have been successful, and should have been brought.

For purposes of assessing reasonable suspicion to conduct a stop, we look not to the trooper's stated reasons or subjective intent, but to objective factors. See Commonwealth v. Evelyn, 485 Mass. 691, 698-699 (2020). Even if we assume without deciding that the reason given for the stop was unsupported -- that is, that there was no fog line and thus no civil infraction -- a motion to suppress would not have been successful because there was reasonable suspicion to stop the truck based on the ambulance driver's report coupled with the fact that the truck drifted towards the curb. The defendant contends that the ambulance driver's statement was insufficient to give rise to a reasonable suspicion of negligent operation because the statement that the defendant was driving “all over the place” was an anonymous tip that failed to satisfy the veracity prong of the Aguilar-Spinelli two-part test. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). See also Commonwealth v. Manha, 479 Mass. 44, 46 (2018). While the name of the ambulance driver may not have been known to the police at the time, the ambulance driver did not attempt to conceal his identity, and pointed to the truck in question. See id. The trooper's subsequent observation of the truck drifting to the side of the road constituted independent corroboration of the tip. These additional confirmatory circumstances established the veracity and reliability of the tip, thus providing reasonable suspicion for the stop. See id.; Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998).

Further, defense counsel apparently did not file a motion to suppress because he thought doing so would only prompt the Commonwealth to cement its case by locating the ambulance driver.5 This evaluation of the likelihood of success on the motion, and the risk that the ambulance driver would be summonsed to the motion hearing or trial was not manifestly unreasonable when made.

Alternatively, even without the ambulance driver's statement to the trooper, there would have been enough evidence to provide reasonable suspicion of negligent operation. Trooper Gonzalez testified that he saw the truck drift to the right and come within inches of the curb, and there were people on the sidewalk. The truck's failure to keep to the road and the truck's unwarranted proximity to the sidewalk gave rise to a reasonable suspicion that the defendant's driving “might have endangered the lives and safety of the public.” Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 543 (2020). See Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 220 (2019). For this reason as well, the motion would not have been successful, and counsel was not ineffective.

2. Sufficiency. The defendant also contends that the evidence was insufficient to support his convictions of operating a motor vehicle while under the influence of alcohol and negligent operation of a motor vehicle. “[W]e consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Tsonis, 96 Mass. App. Ct. at 216, quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017).

After initiating the stop, Trooper Gonzalez approached the driver's side of the truck and asked the defendant for his license and registration. The defendant said he did not know where his license was and could not produce the registration, although he shuffled through documents in the truck while looking straight ahead. Trooper Gonzalez detected “an odor of alcohol emanating” from the defendant's breath and his eyes appeared bloodshot and glassy. When asked to step out of the vehicle, the defendant was unsteady on his feet. The stop occurred close to 9 p.m. and the defendant informed the officer that he had consumed two beers earlier in the evening, around 7 p.m. Additionally, the defendant struggled to complete the field sobriety tests. The trooper formed the opinion that the defendant was intoxicated and placed him under arrest. When told he was under arrest the defendant said “No” and pulled his arm away so that the trooper could not handcuff him.

In order to sustain a conviction of negligent operation of a motor vehicle, “the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) upon a public way, and (3) (recklessly or) negligently so that the lives or safety of the public might be endangered.” Kaplan, 97 Mass. App. Ct. at 542, quoting Commonwealth v. Daley, 66 Mass. App. Ct. 254, 255 (2006). “That element ‘only requires proof that the lives or safety of the public might be endangered, not that they were endangered.’ ” Id. at 543, quoting Daley, supra at 256.

The defendant contends that the third prong was not satisfied by a “single, safe cross of a fog line.” “A defendant's driving need not have been erratic to support a conviction of negligent operation, so long as the conduct, taken as a whole, might have endangered the lives and safety of the public.” Commonwealth v. Texeira, 95 Mass. App Ct. 367, 370 (2019). Here, after the defendant had some amount of alcohol, his truck drifted over to the side of the road within inches of a curb. The defendant did not comply with and seemed unable to comprehend the trooper's commands when stopped or while performing field sobriety tests. See Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015). The evidence was sufficient to allow a rational trier of fact to find, beyond a reasonable doubt, that the defendant drove the truck in such a way as to pose a risk to others. See Kaplan, 97 Mass. App. Ct. at 544.

“[T]o establish the defendant's guilt of OUI in violation of G. L. c. 92, § 24(1)(a)(1), the Commonwealth was required to prove that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol.” Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017). “To establish that the defendant was under the influence, ‘[t]he Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely’ (emphasis omitted).” Commonwealth v. Jewett, 471 Mass. 624, 635-636 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).

On appeal the defendant asserts that his knee brace impeded his ability to perform field sobriety tests and that the trooper mistook his Russian accent for slurred speech. These are matters of weight and credibility for the jury. Commonwealth v. Mendez, 476 Mass. 512, 524 (2017) (“although the jury were free to adopt the defendants’ version of events, they were also free to reach a different rational result”).

Viewed in the light most favorable to the Commonwealth, there was sufficient evidence that the defendant was driving a truck while under the influence of alcohol. The defendant was observed drifting to the right of his lane of travel so that the truck came within inches of the curb, he struggled to provide his license and registration, his breath had an odor of alcohol, his eyes were glassy and bloodshot, and he failed the field sobriety tests. In light of these facts, the trooper formed the opinion that the defendant was intoxicated. See Tsonis, 96 Mass. App. Ct. at 219. See also Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353 (2015) (officer's opinion testimony that defendant appeared intoxicated and traffic violation were “sufficient to warrant a finding by the jury that the defendant's consumption of alcohol diminished his ability to operate his vehicle safely”). Before performing the field sobriety tests, Trooper Gonzalez asked the defendant if he had any physical limitations, and confirmed that the defendant's knee brace would not affect him. The defendant was nonetheless unable to perform the tests. See Gallagher, 91 Mass. App. Ct. at 386 (trooper detected odor of alcohol coming from defendant, defendant struggled to complete field sobriety tests although she had said her arthritis would not affect her, and admitted to drinking three beers). A rational jury could have found that the defendant was guilty of operating a motor vehicle while under the influence of alcohol.

Judgments affirmed.

Order denying motion for new trial affirmed.


2.   He also was found responsible for a civil infraction for failing to remain within the lane of travel, G. L. c. 89, § 4A.

3.   The defendant's trial counsel filed a successful motion in limine to exclude this portion of the police report and to preclude the officer from testifying to the ambulance driver's statement at trial. It was considered by the judge in connection with the motion for new trial.

4.   The defendant also argues that a single instance of crossing a white line does not constitute a civil infraction. This argument is foreclosed by Commonwealth v. Larose, 483 Mass. 323, 326-329 (2019). Because Larose interprets the meaning of a statute, see G. L. c. 89, § 4A, it is retroactive. See Commonwealth v. Ashford, 486 Mass. 450, 453 (2020).

5.   Although trial counsel did not provide a signed affidavit, appellate counsel has relied on the unsigned affidavit drafted by trial counsel. The unsigned affidavit states that trial counsel made a strategic or tactical decision not to draw attention to either the hearsay statements of the ambulance driver or the absence of a white line in the road. Trial counsel filed a motion in limine to exclude the ambulance driver's statements on the first day of trial, which was allowed. The photograph was admitted at trial.

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Docket No: 20-P-920

Decided: April 27, 2021

Court: Appeals Court of Massachusetts.

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