Commonwealth v. Norton

COMMONWEALTH

v. HARRY J. NORTON.

10-P-2032

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: January 18, 2012

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Before us are the defendant's direct appeal and his appeal from the denial of his motion for a new trial. The defendant was convicted of operating under the influence of intoxicating liquor, fifth offense (count 1); negligent operation of a motor vehicle (count 3); operating a motor vehicle after suspension of license, subsequent offense (count 4); operating an uninsured motor vehicle (count 6); and operating an unregistered motor vehicle (count 7). We affirm in part and reverse in part.

1. Motion for new trial. a. Failure to request mistrial or voir dire. At trial, defense counsel concluded that, although one or more jurors had overheard a sidebar discussion on the defendant's motion for a required finding of not guilty, any error was not prejudicial. On appeal, the defendant argues that trial counsel's failure to request a mistrial or voir dire of the juror(s) amounted to ineffective assistance of counsel.

The test for ineffective assistance is the well known one from Saferian. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Even were we to assume, however, that the failure of trial counsel to request a mistrial or voir dire fell below conduct which might be expected of an ordinary fallible attorney -- and it would be hard to conclude that the contemporaneous judgment of counsel here that any error was not prejudicial, was unreasonable -- this claim would nonetheless fail because the defendant has not met his burden of proving that counsel's failure deprived the defendant of a substantial ground of defense. See ibid. In particular, postconviction counsel failed to file any motion seeking to obtain evidence through postverdict interview with any juror. See Commonwealth v. Fidler, 377 Mass. 192, 202-203 (1979). Without such evidence the defendant cannot show that the failure by trial counsel to request a mistrial or voir dire actually deprived him of a substantial ground of defense.

Nor do we think the defendant has shown that trial counsel's failure to move for a mistrial with respect to testimony about police 'verifi[cation]' of the defendant's personal details amounted to ineffective assistance of counsel. The striking of the testimony and the judge's instruction against speculation suffice to cure any error. Thus, even were we to assume that the failure to move for mistrial met the first prong of Saferian -- something that we do not decide -- no substantial ground of defense was lost.

b. Opinion testimony. Next, we review the claim of error concerning the opinion testimony about the defendant's guilt. This error was not preserved. In light of the fact that the defendant's operation of the motor vehicle was not contested, the defendant has failed to demonstrate error in the judge's determination on the motion for new trial that the failure to object to this testimony did not deprive the defendant of a substantial ground of defense.

2. Direct appeal. a. Negligent operation. There was sufficient evidence to support the defendant's conviction of negligent operation of a motor vehicle in the evidence of the defendant's intoxication and the defendant's hitting another car, and in the Sullivans' testimony about the defendant swerving across the road, driving his car up against the curb, and nearly hitting a pedestrian.

b. Operating without insurance. We agree, however, with the defendant that there was insufficient evidence to support the conviction of operating a motor vehicle without insurance in violation of G. L. c. 90, § 34J. The only evidence in the Commonwealth's case-in-chief concerning insurance is that it had lapsed in December of 2006. There was no evidence that the motor vehicle remained uninsured on the date of the alleged offense, March 17, 2007. To be sure, the defendant's counsel in opening argument conceded that the motor vehicle was uninsured on the date of the alleged offense, and in cross-examination during the defendant's case the defendant himself admitted the point. However, it is well settled that the sufficiency of the evidence to convict a defendant of a crime must be measured, even on appeal, at the close of the Commonwealth's case, see, e.g., Commonwealth v. Kelley, 370 Mass. 147, 149-150 (1976), and that a concession by defense counsel in opening argument, which is not evidence, does not amount to a stipulation and does not relieve the Commonwealth of the burden of producing at trial sufficient evidence to support the conviction. See, e.g., Commonwealth v. Ramsey, 79 Mass. App. Ct. 724, 729-730 (2011).

c. Operating unregistered motor vehicle. There was sufficient evidence to support the defendant's conviction of driving an unregistered motor vehicle. A Registry of Motor Vehicles (RMV or registry) document showed the revocation of the motor vehicle's certificate of registration in December, 2006. ¹ The defendant was asked for his registration on the date at issue, and was unable to produce it. And the registrar's certificate that was submitted to authenticate the registry documents stated that the registrar certified 'that there has since been no reinstatement of [the defendant's] certificate of registration in the Commonwealth of Massachusetts.'

The defendant argues correctly, however, that the admission of this certificate in the absence of a registry witness violated his Sixth Amendment right to confrontation under Commonwealth v. Parenteau, 460 Mass. 1 (2011), the recent decision of the Supreme Judicial Court rendered during the pendency of this appeal. Because the trial here took place between the time of the decision in Commonwealth v. Verde, 444 Mass. 279 (2005), under which the trial judge would have been required to overrule a confrontation clause objection to the certificate, and the time of the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), we must measure this error by the standard we would use had it been expressly preserved at trial. See Commonwealth v. Vasquez, 456 Mass. 350, 352 (2010). We cannot say that this error was 'harmless beyond a reasonable doubt.' Ibid. In assessing that question, we may rely on neither the statements of defense counsel in opening, nor the defendant's own testimony during the defendant's case. See Ramsey, 79 Mass. App. Ct. at 727-730. See also Commonwealth v. Mendes, 78 Mass. App. Ct. 474, 480-481 (2010), further appellate review granted, 459 Mass. 1104 (2011). Even...