Commonwealth v. Butler

75 N.E.3d 1149 (Table)

COMMONWEALTH

v.Bruce A. BUTLER.

15-P-1730

Appeals Court of Massachusetts.

Entered: January 18, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from convictions of operating a motor vehicle while under the influence of intoxicating liquor (third offense) and negligent operation of a motor vehicle. See G. L. c. 90, § 24(1)(a )(1), and G. L. c. 90, § 24(2)(a ). The defendant asserts that counsel was ineffective because he introduced unredacted and highly prejudicial medical records at trial, which the prosecutor then emphasized in his closing, exacerbating the prejudice. We agree, and reverse.

Ineffective assistance claim . A police officer stopped the defendant, who was driving at an excessive rate of speed and failed to stop at a stop sign.² The officer detected a strong odor of alcohol coming from the defendant, as well as slurred speech and glassy, bloodshot eyes. The defendant told the officer he had neurological issues and declined to perform the nine-step walk and turn sobriety exercise; he held on to the car when he and the officer walked to the back of the car. The defendant agreed to perform the one-legged stand, but put his foot down after six seconds. He recited the alphabet, pausing after the letter R. Based on his observations, the officer concluded that the defendant was intoxicated and placed him under arrest.³

At trial, counsel for the defendant introduced medical records supporting his defense that a previous injury, as opposed to intoxication, accounted for the defendant's inability to perform the field sobriety tests. These records revealed that the defendant had previously been involved in a car accident involving a guard rail which resulted in a spinal fracture and seizures. The records also contained the following statement. "Drinks alcohol, history of smoking and cocaine." In another portion of the record, the medical providers noted "substance abuse withdrawal with delirium and agitation throughout hospitalization managed with Haldol and Ativan."

The prosecutor made the defendant's previous accident and the alcohol and cocaine use the centerpiece of his closing argument. He focused on the medical records and emphasized that they were offered by the defendant.

"And I would ask you, when you look at page 2, to consider an explanation of what happened on these records. It says that Mr. Butler's a 57-year-old male, he was an unrestrained driver involved in a motor vehicle accident versus a guardrail. So he was in a motor vehicle accident and he smashed in a guardrail in 2011. As part of his history, he agrees or offers, based on your common sense and your life experience, reading this what you know as a person, he says he drinks alcohol and has a history of cocaine . Then reviewing this record further, August 3, 2011, while he is hospitalized it says, Patient's hoarse [sic ], substance abuse withdrawal with delirium and agitation throughout hospitalization, managed with Haldol and Ativan. So the defense has admitted records that refer to Mr. Butler's alcohol use, cocaine use, substance withdrawals. I ask you to use your common sense, your life experience when forming conclusions on that issue. He was in a motor vehicle accident. He was hospitalized following that. And he's now using as an excuse a neurological issue for not being able to perform those tests ."

(Emphasis added.)

Discussion . "To prevail on a ... claim[ ] [of] ineffective assistance of counsel, a defendant must show that there has been a ‘serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably 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.’ " Commonwealth v. Millien , 474 Mass. 417, 429-430 (2016), quoting from Commonwealth v. Saferian , 366 Mass. 89, 96 (1974). In the aftermath of Saferian , "we have said that the defendant is entitled to a new trial if there is a substantial risk of a miscarriage of justice arising from counsel's failure. See Commonwealth v. Azar , 435 Mass. 675 (2002), S.C., 444 Mass. 72 (2005) ; Commonwealth v. LeFave , 430 Mass. 169 (1999)." Millien , supra at 432.⁴

"Where, as here, the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was ‘manifestly unreasonable when made.’ " Commonwealth v. Kolenovic , 471 Mass. 664, 674 (2015), quoting from Commonwealth v. Acevedo , 446 Mass. 435, 442 (2006). The decision to place the defendant's medical condition in evidence was a strategic decision designed to provide an alternative explanation for the defendant's behavior, and the defendant does not argue that the medical defense was in any way improper. Rather, the defendant contends that counsel should have sought redaction of the portions of the medical record that were prejudicial, most notably the reference to an earlier accident, alcohol and cocaine use, and treatment for withdrawal.

We agree that the inclusion of references to a car accident, coupled with alcohol and cocaine use, addiction,...