Commonwealth v. Osinski

94 Mass.App.Ct. 1117

122 N.E.3d 1100 (Table)

COMMONWEALTH

v.Jane E. OSINSKI.

17-P-1582

Appeals Court of Massachusetts.

Entered: January 17, 2019.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A District Court jury found the defendant, Jane E. Osinski, guilty of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24 (1) (a ) (1), and the defendant thereafter pleaded guilty to the portion of the complaint alleging a second offense. The jury also found the defendant guilty of failing to stop for a police officer, G. L. c. 90, § 25. On appeal, the defendant argues that the trial judge erred in denying her motion for a required finding of not guilty on the charge of failure to stop, and in denying her motion for a new trial based on her claim of ineffective assistance of counsel.² We affirm.

Background. The jury could have found the following facts. On April 27, 2014, the defendant, a real estate agent, was showing a home on the grounds of the Andover Country Club, at 5 Trevino Circle. The defendant's coworker was showing a condominium on the same grounds and observed that the defendant had difficulty keeping her balance, staggered side to side, and had a dazed expression on her face. The defendant went to her car, retrieved a bag that she had borrowed from the coworker, and returned it to her, and the coworker noticed that the bag had an odor of alcohol, which it did not have when she loaned it to the defendant.

When the defendant left 5 Trevino Circle in her car, the coworker called the Andover police department because she was worried about the defendant's condition and that she was driving a car, and believed the defendant was intoxicated. The coworker described the defendant's vehicle as a brownish 2014 Toyota Rav4.

Following the coworker's call, a police officer was dispatched to the area. The officer identified the defendant's vehicle on Route 133, turned his cruiser around, and followed the defendant onto Route 28 north, where he activated his cruiser's blue lights. The officer testified that when he turned the lights on just behind the defendant, the defendant continued driving. After following the defendant's vehicle for a few hundred feet, the officer turned on the cruiser's siren. The defendant proceeded at a "normal" rate of speed for approximately another three-tenths of a mile before coming to a stop. When the officer approached the driver's side window of the defendant's vehicle, he noticed an odor of alcohol and that the defendant's eyes were glassy. The defendant failed a number of field sobriety tests. The officer then formed the opinion that the defendant was impaired and placed her under arrest. An inventory search of the vehicle pursuant to police department policy revealed a "basically empty" vodka bottle. The defendant's former boy friend testified that the defendant was bringing the bottle to his home at the time of the incident. The defendant testified that it was not her bottle and that she did not drink vodka.

Prior to trial, the parties stipulated that the defendant was participating in alcohol testing twice weekly arising from an unrelated civil matter. Dr. Harvey Cohen testified as an expert in the biomarker ethyl glucuronide (EtG), a chemical that can be detected in a person's urine and can be used to detect the presence or absence of alcohol in a person's system in the past twenty-four hours. Dr. Cohen testified that based on a test the defendant took on April 28, 2014 -- the day after her arrest -- he did not believe that there was alcohol present in her system.

Discussion. 1. Motion for required finding of not guilty. The defendant claims that the trial judge erred in denying her motion for a required finding of not guilty, because there was insufficient evidence that she had failed to stop for the police officer. In reviewing the denial of a motion for a required finding of not guilty, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

General Laws c. 90, § 25, provides that a failure to stop occurs when "[a]ny person who, while operating or in charge of a motor vehicle, ... refuse[s] or neglect[s] to stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment." Here, there was sufficient evidence that the defendant failed to stop for the officer. The defendant continued driving for "a few hundred feet" after the officer turned on his cruiser's lights, and then continued to drive at a "normal" speed for approximately three-tenths of a mile after the officer turned on the siren. Based on those facts, the jury reasonably could have found that the defendant failed to stop for the officer. Latimore, 378 Mass. at 677. Consequently, the judge did not err in denying the defendant's motion for a required finding of not guilty.

2. Motion for new trial. The defendant argues that the judge erred in denying her motion for a new trial. The defendant asserts that her trial counsel was ineffective because he undermined the defendant's credibility by offering Dr. Cohen's scientific and expert testimony despite its weaknesses, and because counsel stipulated to evidence that created the impression that the defendant was an alcoholic.

We review an ineffective assistance of counsel claim to determine whether there has been "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Trial tactics which may appear questionable from the vantage point of hindsight, do not amount to ineffective assistance unless ‘manifestly unreasonable’ when undertaken." Commonwealth v. Haley, 413 Mass. 770, 777-778 (1992), quoting Commonwealth v. Sielicki, 391 Mass. 377, 379 (1984). Where a defendant raises ineffective assistance of counsel in the context of a motion for new trial, appellate courts accord substantial deference to the judge's favorable evaluation of trial counsel's performance, particularly where, as here, the motion judge was also the trial judge. Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 493 (1998). We will not reverse the decision to deny a motion for a new trial "unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error." Commonwealth v. Nieves, 429 Mass. 763, 770 (1999).

a. EtG test expert testimony. The defendant argues that trial counsel undermined her credibility by offering unreliable expert testimony related to the EtG testing. The defendant posited in her posttrial affidavit that she "did not want Dr. Cohen to testify at trial because of the way he had been cross-examined" at the Daubert-Lanigan hearing. Specifically, the defendant now argues that counsel should have known that the testimony would hurt the defendant's credibility because validity testing had not been done on the defendant's urine sample.³ Similarly, the defendant argues that trial counsel knew from the Daubert-Lanigan hearing that the Commonwealth would attack Dr. Cohen's...