Commonwealth v. George Bradley. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-24
COMMONWEALTH
vs.
GEORGE BRADLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of operating a motor vehicle while under the
influence of intoxicating liquor (OUI), fifth offense. 1 He filed
a motion for a new trial in which he alleged that he had been
denied the effective assistance of counsel. The motion was
denied without a hearing in a detailed and well-reasoned
memorandum of decision and order. The defendant's appeal from
the denial of the new trial motion was consolidated with his
direct appeal. For the following reasons, we affirm the
1 The judge found the defendant guilty of the fifth offense
portion of the OUI charge in a subsequent jury-waived trial.
The defendant was also charged with reckless operation of a
motor vehicle and unlawful possession of ammunition. Those
charges were nolle prossed prior to trial.
conviction and the order denying the defendant's motion for a
new trial. 2
Background. 3 On April 4, 2019, at approximately 10 A.M.,
the defendant left Limington, Maine, and headed to Lowell in his
pickup truck. Around noon, he was driving on Lowell Street in
Peabody when he attempted to pass a vehicle by driving on the
opposite side of the road into oncoming traffic. Although the
defendant was speeding, he could not complete the pass in time,
so he swerved back into his lane and in doing so struck the
vehicle in front of him. That car was severely damaged. The
defendant kept driving for another seventy-five yards or so
before stopping. A number of witnesses reported the accident to
the police, who arrived quickly. When the officers approached
the truck, they found the defendant leaning against the driver's
side door, which was open. The defendant was sitting on the
floor with his back against the driver's seat. The defendant
told the officers that his left leg was injured, and he had
difficulty taking his foot off the gas pedal and putting it on
the brake. The officers noted that the defendant's speech was
slurred, and his breath smelled of alcohol. He was unsteady on
2 The defendant's arguments on appeal only concern the denial of
his new trial motion.
3 We summarize the facts as set forth by the judge in her
memorandum of decision and order, supplemented where necessary
with references to the transcript.
2
his feet, his eyes were red and bloodshot, and he was
argumentative and uncooperative. In response to the officers'
questions, he denied drinking any alcohol.
After assisting the defendant to the passenger side of the
truck, the police conducted two field assessment tests that did
not involve walking, both of which the defendant failed to
perform satisfactorily. One officer opined that the defendant
was "hammered," and another testified that he was "drunk." The
defendant was arrested and transported to the police station,
where he continued to be combative and belligerent. Eventually,
the defendant was taken to the hospital. His antagonistic
behavior did not abate, and he was restrained by officers, who
handcuffed him to the hospital bed.
There were three passengers in the defendant's truck at the
time of the accident, Tina Harmon, the defendant's then
girlfriend, Joseph Denehy, the defendant's son, and Denehy's
girlfriend. Harmon told officers at the scene that she had been
asleep during the entire trip. However, a few days later,
Harmon was interviewed by the police in York, Maine, and
provided a different version of events. According to Harmon,
the defendant bought liquor along the way from Maine and
consumed it while driving. He also had stopped at a bar in
Peabody, where he consumed more alcohol.
3
Although Harmon was on the Commonwealth's witness list, the
Commonwealth did not expect her to appear. Harmon had
maintained little contact with the Commonwealth, and she had
also been criminally charged in Massachusetts with theft based
on a report by the defendant's mother that she stole some
jewelry and a cell phone from the defendant. As it turned out,
however, on the second day of trial, Harmon voluntarily arrived
at the courthouse to the surprise of the prosecutor and defense
counsel. 4 Ultimately, Harmon did testify and her testimony was
consistent with the statement she had given to the police in
Maine.
At trial, the defendant did not contest that he caused the
accident. He contended that, while he was responsible, he was
not impaired by alcohol. To this end, he presented testimony
from his son, who claimed that the defendant did not have any
alcohol throughout the trip from Maine, and from his mother, who
saw the defendant at the police station shortly after the
accident and testified that the defendant was not intoxicated.
Defense counsel outlined this theory of the defense, that the
defendant was not intoxicated when he caused the accident, in
his opening statement. In addition, based on the assumption
that Harmon would not testify, he informed the jury, "There's no
4 The record reflects that the Commonwealth did not expect Harmon
to appear and did not mislead defense counsel in this respect.
4
witness that's going to come in here and say, I saw this person
drinking, I saw him having this drink, I saw him at this
particular bar."
Discussion. A judge may grant a new trial "if it appears
that justice may not have been done." Mass. R. Crim. P. 30 (b),
as appearing in 435 Mass. 1501 (2001). "[T]he decision to allow
or deny [a motion for a new trial] rests within the sound
discretion of the motion judge." Commonwealth v. Rhodes, 482
Mass. 823, 826 (2019). 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
[him] of an otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[A]rguably
reasoned tactical or strategic judgments" do not amount to
ineffective assistance of counsel unless they were "manifestly
unreasonable" when made. Commonwealth v. Rondeau, 378 Mass.
408, 413 (1979), quoting Commonwealth v. Adams, 374 Mass. 722,
728 (1978).
The defendant first argues that his counsel was ineffective
when he told the jury in his opening statement that no witness
would testify that they had seen him drinking prior to the
accident, when, in fact, counsel knew about the statement Harmon
5
had given to the police in Maine. 5 To begin with, as the judge
correctly observed, defense counsel's decision in this regard
was a tactical one and, as such, the defendant bore the burden
of showing that the decision was "manifestly unreasonable" when
it was made. See Commonwealth v. Martin, 484 Mass. 634, 641
(2020). We agree with the judge's conclusion that the defendant
did not meet this burden.
Although we recognize that predictions made in opening
statements can have "drastic ramifications," the fact that
counsel's expectations turned out to be incorrect does not
retroactively make his decision manifestly unreasonable.
Commonwealth v. McMahon, 443 Mass. 409, 425 (2005). Here, the
record is clear that, at the time defense counsel gave his
opening, neither party expected Harmon to appear. She was
living in Maine at the time the trial commenced and was no
longer dating the defendant. There was a case pending against
her in Peabody District Court for which she was subject to
arrest, and the Commonwealth had had little contact with her.
Given these circumstances, the judge did not abuse her
discretion in concluding that the promise made in counsel's
5 We need not address the defendant's argument that the judge
erred by considering his failure to provide an affidavit from
defense counsel as detrimental to his claims because we reach
our conclusion that he is not entitled to a new trial without
drawing a negative inference from the absence of an affidavit
from trial counsel.
6
opening statement was not manifestly unreasonable at the time it
was made. See Commonwealth v. Sin, 100 Mass. App. Ct. 172, 179-
180 (2021), quoting Commonwealth v. Morales, 453 Mass. 40, 45
(2009) ("the judge was in the best position to evaluate
counsel's decision and . . . performance," and we "defer to her
assessment that trial counsel's strategic choice was not
manifestly unreasonable").
Furthermore, even if we were to assume that defense
counsel's performance fell measurably below that which might be
expected from an ordinary fallible lawyer, we cannot say that
the failure to fulfill the promise deprived the defendant of an
otherwise available, substantial ground of defense. In light of
the overwhelming evidence that the defendant was intoxicated and
that his ability to operate a motor vehicle was impaired, we
have little difficulty concluding that counsel's unkept promise
could not have influenced the jury in reaching their verdict.
See Martin, 484 Mass. at 642 (counsel's statements in opening
that certain witness would testify was manifestly unreasonable,
however, such ineffective assistance requires new trial only if
it created substantial likelihood of miscarriage of justice,
that is, only if it was reasonably likely to have influenced
jury's conclusion). Moreover, the jury was properly instructed
that openings are not evidence. We further note that counsel
did not abandon the primary theory of the defense. Throughout
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the trial and in closing argument, he asserted that what
occurred was an accident and not a crime. See Commonwealth v.
Duran, 435 Mass. 97, 111 (2001) (despite unkept promise that
defendant would testify, "[d]efense counsel did not abandon the
defendant's alibi defense"). Lastly, the Commonwealth did not
exploit the issue in its closing. Id.Next, the defendant contends that his counsel was
ineffective because he was not prepared for Harmon to testify
and consequently his cross-examination was ineffective. The
judge properly rejected this claim as well. While it is true
that defense counsel had failed to obtain certified copies of
Harmon's prior convictions, as the Commonwealth notes in its
brief, there is no evidence that Harmon had been convicted of a
crime for which she could be properly impeached under G. L.
c. 233, § 21. Counsel sought to introduce two prior convictions
from the State of Maine, one for "theft by unauthorized
transfer," and one for criminal trespass. Neither met the
criteria for admissibility. Accordingly, counsel's failure to
obtain certified copies was inconsequential. Furthermore, and
more importantly, defense counsel did impeach Harmon with her
prior conviction for criminal trespass and he also questioned
Harmon about her pending case in Peabody. Counsel then used
this testimony to the defendant's advantage in his closing
argument and suggested that Harmon was biased. Counsel stated,
8
"She [Harmon] has an open case here in Massachusetts that's
being prosecuted by this office. Might tell you something about
why she's here." Thus, even if we assume, as the defendant
asserts, that counsel was not prepared to cross-examine Harmon,
ultimately, he impeached her credibility and used that testimony
to argue in closing that Harmon had a motive to testify falsely.
Accordingly, the judge did not abuse her discretion in denying
the defendant's motion for a new trial on this ground.
Judgment affirmed.
Order denying motion for new
trial affirmed.
By the Court (Vuono, Singh &
Englander, JJ. 6),
Clerk
Entered: December 26, 2023.
6 The panelists are listed in order of seniority.
9