COMMONWEALTH v. SHAWN REGENT (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted, after a jury trial, of one count of operating under the influence of liquor in violation of G. L. c. 90, § 24 (1) (a) (1). In this, his direct appeal, he raises a claim of ineffective assistance of trial counsel. To succeed in such a claim, the defendant must demonstrate both that counsel's performance fell below what might be expected of an ordinary, fallible lawyer and that the lawyer's deficient performance deprived the defendant of a substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

As the defendant acknowledges, this type of claim is, ordinarily, “best left for resolution, in the first instance, by the trial judge on a motion for new trial.” Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). A defendant can succeed in such a claim on direct appeal only “when the factual basis of the claim appears undisputably on the trial record” (citation omitted). Commonwealth v. Williams, 450 Mass. 879, 892 (2008).

The defendant complains first that counsel failed to object at trial to police witnesses’ repeated use of the word “impairment” in describing what they were looking for signs of. Indeed, the defendant complains, trial counsel herself used that word. In support of this argument, the defendant relies on Commonwealth v. Canty, 466 Mass. 535, 544 (2013).

This claim fails because there was no error. Canty does not forbid the use of the word “impaired” to describe a defendant. Indeed, in Canty itself, the court held that there was no error in admitting an officer's “opinion that the defendant was ‘probably impaired.’ ” Canty, 466 Mass. at 544. The court said that an opinion as to sobriety was permissible and specifically, “ ‘[P]robably impaired,’ while not a particularly precise phrase, is no worse than many of the alternatives (e.g., ‘buzzed,’ ‘tipsy’) to describe a modest level of inebriation.” Id.

In contrast, what is forbidden is coming too close to an opinion on the ultimate issue of guilt or innocence. A lay witness, the court said, “may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely.” Canty, 466 Mass. at 544. None of the testimony to which the defendant points discusses operation of a motor vehicle or diminished ability to operate a vehicle.

The defendant next argues that his trial counsel erred in twice failing to object to references to field sobriety tests and once referring to field sobriety testing herself. The first reference was embedded in an officer's testimony about his training in which he testified he was trained to look for “[b]loodshot, glassy eyes, odor of alcohol[ic] beverage coming from a person, if they're able to do the field sobriety testing, that sort of stuff.” This testimony had nothing to do with the defendant.

The second reference referred directly to the defendant but was cut off by the prosecutor, without objection:

THE PROSECUTOR: “What happened next?”

THE WITNESS: “Officer Wedge attempted to walk him through field sobriety testing --”

THE PROSECUTOR: “Oh, I'll stop you there.”

The third reference, involving a different witness, was also cut off by the prosecutor, but successfully objected to by defense counsel and a curative instruction was immediately given:

THE PROSECUTOR: “And what, if anything, did [the defendant] say [after you woke him up]?”

THE WITNESS: “He had slurred speech at the time. I asked him - - he basically said that he drove to the department and, at the time, I asked him if he could p[er]form any field sobriety test[s].”

THE PROSECUTOR: “Oh, I'll stop you there.”

THE DEFENSE COUNSEL: “Objection, Judge.”

THE JUDGE: “Sustained. Please ignore because there's absolutely no evidence at all of any field sobriety test. Ignore the term in its entirety. Any reference to it is impermissible.”

Finally, the fourth reference was by defense counsel herself, on cross-examination of Officer Jason Wedge. Counsel asked, “And you offered to have him show you whether or not he was intoxicated by performing tests?” This time, the prosecutor's objection was sustained.

Even assuming that the original failure to object and counsel's own reference to field sobriety testing fell below what would be expected of a reasonable, fallible lawyer, something we need not decide, in light of the strong curative instruction given by the judge immediately following the second mention of the testing, and the judge's sustaining the objection to defense counsel's own reference to field sobriety testing, we cannot conclude that these failures deprived the defendant of a substantial ground of defense, i.e., “that better work might have accomplished something material for the defence” (quotation and citation omitted). Commonwealth v. Valentin, 470 Mass. 186, 198 (2014).

The defendant next argues that it was “manifestly unreasonable” not to call an expert medical witness on the physical manifestations of the defendant's claimed osteoarthritis and how the use of prescribed medication might have affected his appearance and physical abilities in a way that mimicked drunkenness. The defendant further argues that trial counsel did not even investigate this possibility.

Here, the defendant runs squarely into the admonition described above, that a claim of ineffective assistance of counsel should ordinarily be brought in the first instance in a motion for new trial that permits the presentation of evidence on the issue. Williams, 450 Mass. at 892. There is no information in the record, for example an affidavit of trial counsel, about the basis of trial counsel's actions, or the availability or substance of a medical expert's opinion supporting the defendant's defense.

To give just the most obvious example, the defendant claimed on the stand that if he had taken what he had described as a “toxic” amount of his unnamed prescription medication, it might cause his breath to smell like alcohol, something several witnesses testified his breath did smell like. Without a proffer of any evidence supporting that this is a known side effect of any medication the defendant was taking, we are not in a position to “speculate about what a hearing on a motion for new trial might reveal,” Williams, 450 Mass. at 892, or conclude that it was harmful, let alone manifestly unreasonable, for defense counsel not to have called an expert or investigated retaining one.

Finally, the defendant argues that the cumulative effect of the errors he claims was to deny him a fair trial in violation of due process. In light of our conclusions, this claim also necessarily fails.

Judgment affirmed.