Opinion
13-P-1846
02-25-2016
COMMONWEALTH v. KAREN S. LAFLAMME.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in the District Court, the defendant, Karen S. LaFlamme, was found guilty of operating a motor vehicle while under the influence of alcohol (OUI) and leaving the scene of an accident involving property damage. The defendant filed a timely notice of appeal. She subsequently filed a motion for a new trial, claiming that her trial counsel provided ineffective assistance by failing to file a motion to suppress observations made by a police officer. The motion judge, who was also the trial judge, held a preliminary hearing, followed by an evidentiary hearing, and subsequently denied the motion. We consolidated the defendant's appeal from the denial of that motion with her direct appeal. We affirm.
The judge set forth her findings in a written "Ruling on Defendant's Motion for a New Trial."
1. Ineffective assistance. The defendant first contends that the judge abused her discretion in denying the motion for a new trial, which was based on ineffective assistance of counsel, because the police violated her rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights by (a) walking onto the curtilage of her property and knocking on the glass sliding door to the front of the house, and (b) entering her home and arresting her. She claims that had trial counsel filed a motion to suppress, rather than proceeded to an expedited bench trial, the officer's observations of her intoxication would have been suppressed, and a motion for a required finding of not guilty would have been allowed.
"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 the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). "[A]rguably reasoned tactical or strategic judgments" do not amount to ineffective assistance of counsel unless they are "manifestly unreasonable" when made. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
Here, the judge found that trial counsel correctly assessed that the element of operation was the key issue in the case; that the defendant was concerned about the loss of license associated with the charges and wished to resolve the matter as quickly as possible; that the grounds for a motion to suppress "were not persuasive based on the trial testimony of the officer during the bench trial"; and that the decision to proceed by way of a bench trial was a tactical decision that was not manifestly unreasonable. The judge further concluded as follows:
The trial record corroborates the motion judge's finding, as the defendant was arraigned on November 21, 2011; the case was advanced to December 27, 2011, on which date the defendant signed a jury waiver and the case was scheduled for trial the week of January 27, 2012; and trial was held on January 27, 2012.
"I do not find credible the defendant's testimony that she was not concerned with her license loss and that she would have chosen to delay the trial had she been aware of the option to litigate a motion to suppress. . . . I further find that it was not manifestly unreasonable not to file and argue a motion to suppress rather than proceed directly to a bench trial in order to afford the defendant an earlier opportunity to resolve the case."In view of these findings, we cannot conclude that the behavior of trial counsel fell below that of an ordinary, fallible lawyer, particularly where he implemented a reasoned tactical approach to address the defendant's immediate priorities. Deferring to the judge's findings, as we must, the defendant's argument fails. See Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995); Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 493 (1998).
While we need not reach the second prong of the Saferian test, we nonetheless conclude that the judge did not abuse her discretion in finding that the proffered motion to suppress lacked merit. See Comita, 441 Mass. at 87 (defendant bears burden to show that "had [the] motion been timely filed, the Commonwealth would not have been able to prove that a warrantless [search or seizure] was constitutional").
In rejecting the claim that failing to file a motion to suppress deprived the defendant of a substantial ground of defense, the judge credited the investigating officer's trial testimony. At trial, Officer Laganas testified that he responded to an accident involving a motor vehicle that had broken through a chain link fence and landed in a grassy ditch. He performed his investigation, learned that the defendant "came from her car and went home," and immediately went to the defendant's residence. As the judge found:
"[W]hen [the officer] arrived at the house, he could see through the glass on the front of the house, and saw feet laying on a bed. He began knocking and banging on the door and had difficulty getting the attention of the person. When the person finally did stand up, she was identified as the defendant and she needed to use the walls and chairs to steady herself in order to make her way to the door -- she was swaying and stumbling and had grass, twigs and dirt on her body. Her speech was slurred and there was a distinct odor of an alcoholic beverage coming from her person."
Contrary to the defendant's claim, Laganas and another officer did not conduct an unlawful search by walking up the driveway, stepping onto the porch, and knocking on the glass sliding door at the front of the defendant's house. The driveway was the normal means of access to the defendant's home, along which visitors on the property would pass on the way to the front door. Commonwealth v. Pietrass, 392 Mass. 892, 901 (1984) ("If the porch were one that a visitor would naturally expect to pass through to gain access to the front door, then it would not be part of the 'curtilage' entitled to Fourth Amendment protection"). "Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is 'no more than any private citizen might do.'" Florida v. Jardines, 133 S. Ct. 1409, 1416 (2013), quoting from Kentucky v. King, 563 U.S. 452, 469 (2011). Accordingly, the observations made by the officer at the sliding glass front door would not have been suppressed because the police were rightfully on the porch. For the same reasons, the observations made by the officers after the defendant opened the sliding door were constitutionally sound.
The defendant submitted photographs as exhibits in support of her motion for new trial, one of which depicts the front of the house from the vantage point of Shore Drive, including the driveway leading to the porch immediately in front of house. The photograph, viewed in conjunction with Officer Laganas's description of the sliding glass door at the front of the house and his other trial testimony, further supported the judge's finding that the grounds for a motion to suppress "were not persuasive."
Officer Laganas testified at trial that the defendant opened the sliding glass door. The judge had the opportunity to observe and evaluate Officer Laganas at trial and credited his testimony, and the judge rejected the defendant's argument that a motion to suppress would have been allowed if timely filed. Where the motion judge was also the trial judge, we accord her decision special deference. See Barnette, 45 Mass. App. Ct. at 493. See also DeVincent, 421 Mass. at 69 (judge, who had been fact finder at defendant's trial, was entitled to use his knowledge and evaluation of evidence at trial in denying motion for new trial).
The defendant claims that the officers nonetheless violated the Fourth Amendment and art. 14 of the Declaration of Rights by entering her home. We disagree. Here, the judge credited the testimony of Officer Laganas. According to that testimony, the defendant opened the sliding glass door and agreed to speak with the officers. "[A]t that time," the officers made "immediate observations" of the defendant's impairment. Next, "[w]hile the officers spoke with [the defendant], they "sat her down . . . because she was swaying. She said she had some pain so [they] sat her down." Additionally, the defendant's boy friend testified at the evidentiary hearing on the motion for new trial that the officers said that the defendant "let [them] in" the house. Although the boy friend did not believe the officers, credibility determinations at a motion for a new trial lie with the judge. See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Where the judge explicitly found that the grounds for a motion to suppress were not persuasive based on the officer's trial testimony; where the officer testified that the defendant opened the front sliding glass door and initially agreed to speak with him; where the officer testified that the defendant was swaying and in pain so they sat her down; and where the defendant's boy friend averred that the officer stated that the defendant consented to the officers' entry into the home, the record supports the judge's implied finding that the defendant consented to the entry into the home. To find otherwise would require us to reject the judge's conclusion that the grounds for a motion to suppress lacked merit based on the trial testimony of the officer. We cannot do so. See Barnette, 45 Mass. App. Ct. at 493.
The boy friend also stated in his affidavit, which "was admitted into evidence for all purposes" at the evidentiary hearing on the motion for a new trial, that the officers told him that the defendant "let [them] in" the house.
Even assuming arguendo that the officers' subsequent entry into the home was improper, suppression of the officers' observations that preceded the alleged illegal entry into the home is not warranted. See Commonwealth v. Marquez, 434 Mass. 370, 376-377 (2001) (suppression of defendant's statements made at his apartment before unlawful arrest, and officer's observation of stolen goods, not required because statements and observation preceded illegal police conduct). Prior to any entry into the defendant's home, the officers had made the myriad observations of intoxication detailed in the judge's findings, supra, which supported the convictions of OUI and leaving the scene of an accident involving property damage. See Commonwealth v. Jewett, 471 Mass. 624, 636 (2015) (describing "classic indicia of impairment"). The observations that followed the entry into the house were merely cumulative of the officers' observations made from the porch and the front door, and of limited probative value. Commonwealth v. Hall, 45 Mass. App. Ct. 146, 158 (1998). On this record, the judge did not abuse her discretion in denying the motion for a new trial.
2. Operating a motor vehicle. The defendant's second contention, that the Commonwealth failed to prove beyond a reasonable doubt that she operated a motor vehicle, likewise fails. A rational fact finder could have found that the defendant's motor vehicle had crashed through a chain link fence and driven into a ditch; that a civilian witness observed a woman standing "about an arm's length" from the driver's side door of the motor vehicle, looking "disoriented," and "stumbling away from the car"; that there was no one else in the area at that time; that the woman walked away from the motor vehicle and headed down Shore Drive; that the motor vehicle was registered to the defendant; that the civilian telephoned 911 and police officers arrived at the accident scene; that the defendant's boy friend arrived at the scene with a rope to tow the motor vehicle from the ditch; that the officers investigated the accident scene and immediately went to the defendant's residence; and that the officers observed the defendant, at her home on Shore Drive, appearing unsteady on her feet and with grass, twigs, and dirt on her clothing and hair, which stemmed from the motor vehicle accident. Viewed in the light most favorable to the Commonwealth, a rational fact finder could have found beyond a reasonable doubt that the defendant operated the motor vehicle. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). See also Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438-439 (2002) (proof of operation "may rest entirely on circumstantial evidence").
The distance from the accident scene to the defendant's house was "one minute away by foot."
Officer Laganas also testified at trial that the defendant's boy friend stated at the accident scene that the defendant "was at home, came from her car and went home." There was no objection to this testimony.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 25, 2016.