A man lost his OUI trial in district court and blamed it on ineffective assistance of counsel.
Instead of filing a motion in district court seeking a new trial, he submitted a “direct appeal” to the Appeals Court.
To succeed on a claim of ineffective assistance of counsel, a defendant must show two things:
- that counsel’s performance fell below what might be expected of an ordinary, fallible lawyer, and
- that the lawyer’s deficient performance deprived the defendant of a substantial ground of defense.
Massachusetts case law makes clear that such claims are “best left for resolution, in the first instance, by the trial judge on a motion for new trial.” See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
In this case the defendant opted for a direct appeal for appellate review.
Consequently, he could win on his ineffective assistance of counsel claim only if “the factual basis of the claim appears undisputedly on the trial record.” See Commonwealth v. Williams, 450 Mass. 879, 892 (2008).
According to the defendant, his attorney failed to use an expert witness who could testify to the defendant’s osteoarthritis and prescribed medication–two things that might explain his performance on the field sobriety test.
The Appeals Court panel rejected this argument.
According to the justices,
the defendant runs squarely into the admonition described above, that a claim of ineffective assistance of counsel should ordinarily be brought in the first instance in a motion for new trial that permits the presentation of evidence on the issue. There is no information in the record, for example an affidavit of trial counsel, about the basis of trial counsel’s actions, or the availability or substance of a medical expert’s opinion supporting the defendant’s defense. To give just the most obvious example, the defendant claimed on the stand that if he had taken what he had described as a “toxic” amount of his unnamed prescription medication, it might cause his breath to smell like alcohol, something several witnesses testified his breath did smell like. Without a proffer of any evidence supporting that this is a known side effect of any medication the defendant was taking, we are not in a position to “speculate about what a hearing on a motion for new trial might reveal,” Williams, 450 Mass. at 892, or conclude that it was harmful, let alone manifestly unreasonable, for defense counsel not to have called an expert or investigated retaining one.
The full text of the slip opinion is attached below.