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15-P-470                                               Appeals Court
16-P-949

                  COMMONWEALTH   vs.   DANIEL LEARY.


                      Nos. 15-P-470 & 16-P-949.

      Hampden.       January 18, 2017. - September 29, 2017.

             Present:    Green, Agnes, & Desmond, JJ.


Motor Vehicle, Homicide, Operating under the
     influence. Intoxication. Evidence, Breathalyzer test,
     Field sobriety test, Intoxication, Unavailable witness,
     Previous testimony of unavailable witness,
     Videotape. Witness, Unavailability. Practice, Criminal,
     Argument by prosecutor, Instructions to jury, Lesser
     included offense, Assistance of counsel, Motion to
     suppress, Execution of sentence.



     Indictment found and returned in the Superior Court
Department on April 27, 2011.

     A pretrial   motion to suppress evidence was heard by C.
Jeffrey Kinder,   J.; the case was tried before Tina S. Page, J.;
and a motion to   reduce the verdict was heard by Edward J.
McDonough, Jr.,   J.

     A renewed motion to stay execution of sentence, which was
filed in the Appeals Court on June 8, 2016, was considered
by Trainor, J.


     Barbara Munro for the defendant.
                                                                        2


     Amal Bala, Assistant District Attorney, for the
Commonwealth.


     AGNES, J.   Following a nine-day jury trial in the Superior

Court, the defendant, Daniel Leary, was convicted of motor

vehicle homicide by reckless or negligent operation while under

the influence of alcohol.      See G. L. c. 90, § 24G(a).   The case

comes before us by two routes:      the defendant's direct appeal,

and his appeal from an order of a single justice of this court

denying his renewed motion to stay execution of his sentence

pending the direct appeal. 1    For the reasons that follow, we

affirm.

     Background.   We recite the facts as the jury could have

found them, reserving several details for later discussion.       On

March 25, 2011, at approximately 3:30 P.M., Peter Desrosiers

came to the defendant's house with a "thirty-pack" of beer.       The

defendant was preparing motorcycles for a "motor cross" race the

next day.   About one hour later, the defendant took his

motorcycle to the racetrack, in Southwick, and Desrosiers

followed in his truck, bringing the beer with him.      At the

racetrack, the defendant continued his preparations for the next

day's race.   At approximately 9:00 P.M., the defendant and

     1
       The defendant's direct appeal and his appeal from the
order of the single justice denying his renewed motion to stay
execution of sentence were heard together by the same panel of
this court.
                                                                   3


Desrosiers left the racetrack together in Desrosiers's truck to

pick up another motorcycle at the defendant's cousin's friend's

home, in West Springfield.   The defendant drove because

Desrosiers felt drunk, having consumed as many as one dozen

beers by this time.   They spent about an hour at the cousin's

friend's home, drinking beers that the defendant had brought

with him, and then left -- without the motorcycle, as it needed

repairs -- to return to the racetrack.   Again, the defendant

drove.

     Their route took them through a residential area, along

Dewey Street, where the victim was at a friend's home,

celebrating another friend's recent engagement.   At

approximately 10:20 P.M., at the same time as the defendant was

driving down Dewey Street, the victim was walking on the side of

the road outside his friend's home.   When the defendant saw the

victim, who was to his right, he swerved to the right, striking

the victim.   The vehicle continued briefly along the lawn,

knocking over a mailbox, before coming to a stop about sixty

feet from the point of impact.   The victim was taken to an area

hospital, where he later died of his injuries.

     Officer Brian Duffy of the West Springfield police

department arrived at the scene within ten minutes of the

accident.   While speaking with the defendant, the officer

detected a strong odor of alcohol on the defendant's breath, and
                                                                       4


he (Duffy) noticed that the defendant's eyes were glassy and

bloodshot.   Duffy asked the defendant if he had been drinking,

and the defendant admitted to having consumed two beers.       After

the officer administered field sobriety tests, he and another

officer who observed the tests, Michael Kennedy, formed the

opinion that the defendant was impaired, and they arrested him.

At the police station, the defendant blew twice into a

breathalyzer machine.   Each sample registered a blood alcohol

concentration (BAC) of .19 percent.

     On April 27, 2011, a grand jury indicted the defendant for

motor vehicle homicide by reckless or negligent operation while

under the influence of alcohol or with a BAC of .08 percent or

greater.   See G. L. c. 90, § 24G(a).    The defendant's first

trial, which began on March 20, 2013, ended in a mistrial.       On

July 25, 2013, following a nine-day retrial, at which the

defendant elected to testify on his own behalf, a jury of the

Superior Court convicted the defendant.     The verdict form

permitted the jury to convict him under either or both of two

theories -- that he was under the influence of alcohol, or that

his BAC was .08 percent or greater.     According to the verdict

form, the jury accepted the former theory, and rejected the

latter.    See note 7, infra.

     Discussion.   1.   Admissibility of breathalyzer test

results.   The defendant contends that the judge (suppression
                                                                    5


judge) erred by denying his pretrial motion to suppress the

results of the breathalyzer test.    Those results, he argues,

were improperly admitted because the breath test operator did

not observe him for fifteen minutes prior to administering the

test, in violation of 501 Code Mass. Regs. § 2.13(3) (2010).

"The purpose of the fifteen-minute waiting period is to ensure

that the defendant has not brought any substance into his mouth,

such as food, drink, or regurgitation by burping or by

hiccoughing, that would have had a contaminating impact on the

accuracy of the results, and to permit a sufficient lapse in

time to allow such possible contaminants to

clear."    Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 231-232

(2008).    This regulation was designed to ensure the accuracy of

the results.    Commonwealth v. Hourican, 85 Mass. App. Ct. 408,

411 (2014).    However, "mere 'deviations from meticulous

compliance'" do not justify the suppression of breathalyzer test

results.    Commonwealth v. Zeininger, 459 Mass. 775, 792 (2011),

quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453

(1995).    "[I]n cases where there is a 'substantial deviation,'

their admission constitutes reversible error."    Ibid., quoting

from Pierre, supra at 235.

     The record, which includes a video recording of the booking

process (booking video) and the breathalyzer test, confirms that

the breathalyzer test operator did not, himself, observe the
                                                                     6


defendant for the requisite fifteen-minute period.   The

suppression judge found, however, that there were multiple

officers at the booking, and that the defendant was in the

presence of one or more of them, continuously, for at least

twenty-eight minutes prior to the breathalyzer test.   The

defendant takes issue with certain details in these findings,

such as the precise times that certain officers left or returned

to the booking room, and whether one officer was in a position

to observe him when he was taken to another area for an

additional field sobriety test.

     When reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings absent clear error, but conduct

an independent review of his ultimate findings and conclusions

of law.   Commonwealth v. Craan, 469 Mass. 24, 26 (2014).    Here,

we need look no further than the booking video, upon which the

suppression judge relied, to confirm that the defendant was in

the presence of one or more of a handful of officers, in a

relatively small booking area, for more than the requisite

fifteen-minute period.   The booking video also confirms the

testimony of one of those officers, who was with the defendant

for most of the twenty-eight minutes, and who testified that he

did not observe the defendant vomit, hiccough, burp, or place

anything in his mouth.   We agree with the suppression judge that

whatever deviation there was from "meticulous compliance" goes
                                                                     7


to the weight, not the admissibility, of the

results.    Zeininger, 459 Mass. at 792. 2

     2.    Admission of prior testimony of an unavailable witness.

Officer Duffy, who responded to the scene of the accident,

testified during the defendant's first trial, which ended in a

mistrial.    Three months before the date of the retrial, the

Commonwealth represented to the trial judge that Officer Duffy

would be unavailable to testify at the retrial for medical

reasons.    The day before jury selection began in the retrial,

the trial judge allowed the Commonwealth's motion to admit the

transcript of Officer Duffy's testimony from the first trial,

over the defendant's objection.     See Mass. G. Evid. § 804(b)(1)

(2017).    After the trial was underway, during a sidebar

conference on the day Officer Duffy's testimony was to be

recited, counsel withdrew his objection, telling the trial judge

that the parties had agreed to the reading of the transcript.

Counsel did not object when the prior recorded testimony was

admitted.    On appeal, the defendant now argues that the

testimony was improperly admitted because the Commonwealth

failed to offer evidence of Officer Duffy's unavailability.     In

the absence of an objection, we review the admission of this

     2
       It is also notable that the accuracy of the test was
thoroughly litigated, including through expert testimony, and
that the jury declined to convict the defendant based on having
a BAC of .08 percent or greater. See note 7, infra.
                                                                     8


evidence, if error, for a substantial risk of a miscarriage of

justice.   Commonwealth v. Randolph, 438 Mass. 290, 294-295

(2002).

     We are satisfied that no such risk is present.    Certainly,

had Officer Duffy's testimony been excluded, the case against

the defendant would have been weaker.   But, on review, the

question is whether "we are left with uncertainty that the

defendant's guilt has been fairly adjudicated."    Ibid., quoting

from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).     In this

case, we are left with no such uncertainty.     First, at the time

of the Commonwealth's motion, the trial judge did not have the

benefit of Commonwealth v. Housewright, 470 Mass. 665, 671

(2015), to guide her analysis of witness

unavailability.    Housewright did not alter existing law, but

merely "amplifie[d]" it, and "established a framework for"

analyzing unavailability "because of illness or infirmity. . . .

Such a framework had not previously existed."     Commonwealth

v. Dorisca, 88 Mass. App. Ct. 776, 777 n.2 (2015).    Second,

because the Commonwealth informed the trial judge of the

witness's anticipated unavailability well in advance of the

trial, this is not a case where "the defendant ha[d] little

opportunity to investigate the witness's medical condition to

challenge the prosecutor's claim of

unavailability."   Housewright, supra at 674.    Third, and most
                                                                      9


importantly, the defendant thoroughly cross-examined the witness

at the first trial, a fact that ameliorates potential concerns

about the defendant's rights under the State and Federal

confrontation clauses.    See Commonwealth v. Sena, 441 Mass. 822,

833-834 (2004).

     3.   Closing argument.   The defendant claims that the

prosecutor's closing argument was improper for three reasons.

We determine whether errors occurred, before determining their

cumulative effect.    See Commonwealth v. Niemic, 472 Mass. 665,

673 (2015).

     a.   Claimed errors.    First, the defendant argues that the

prosecutor improperly injected his personal beliefs into the

case when he said, "[T]he Commonwealth doesn't even have to

prove that [the defendant] drove in an erratic manner, which he

obviously did.    We don't have to prove it."   (Emphasis

supplied.) 3   This was not improper.   The prosecutor "interjected

no extraneous material or belief but [merely] expressed [his]

view of the strength of the evidence."     Commonwealth v. Smith,

387 Mass. 900, 907 (1983).



     3
       It appears that the prosecutor sought to emphasize
evidence of erratic driving, which bears on negligence, but
without misleading the jury into believing that the law requires
outright erratic driving. See Instruction 5.310 of the Criminal
Model Jury Instructions for Use in the District Court (2013)
(proof of erratic driving not required).
                                                                     10


     Second, the defendant argues that the prosecutor improperly

vouched for the credibility of Officer Kennedy, who was at the

accident scene, and who testified to the defendant's performance

on the field sobriety tests.   In his closing argument, the

prosecutor said,

     "[T]here is really nobody saying that this guy was falling
     down drunk. . . . So when Officer Kennedy was saying he
     was moderately impaired, that was him being honest. It
     would be ridiculous if he said, 'Oh, he was heavily
     impaired.' He told you the truth, he was moderately
     impaired."

     "A prosecutor is free to provide the jury with the reasons

why they should find a witness's observations to be accurate,

but she cannot tell the jury that the witness speaks the

truth."   Commonwealth v. Penn, 472 Mass. 610, 627 (2015).     The

defendant lays particular emphasis on the phrase, "that was him

being honest."   However, in context, the prosecutor was not

personally vouching for the witness.   Rather, he was arguing to

the jury that they should find the testimony credible because it

was not exaggerated.

     Third, and lastly, the defendant argues that the prosecutor

improperly appealed to the jury's sympathies when, nearing the

end of his argument, he invited them to "go back in time" and

consider whether, knowing all they had learned during the trial,

they would have intervened to prevent the victim's death.     The

prosecutor told the jury that, if they would not have
                                                                   11


intervened, they must return a not guilty verdict, 4 and shortly

after, he told them that if they would have intervened, they

must convict the defendant. 5

     Although prosecutors may use dramatic descriptions of the

facts, an overt appeal to emotions may cause a jury to decide

the case based on considerations other than the weight of the

evidence.   Commonwealth v. Vuthy Seng, 436 Mass. 537, 555-556

(2002).   We agree that the prosecutor overstepped the bounds of

proper argument because he explicitly invited the jury to make

their determination based, not on the evidence, but on whether

they would have intervened had they been present and known what


     4
       The prosecutor stated, "So as the first group of people to
be able to put this all together and then go back in time, you
put it all, everything, and you go back in time. And you are
standing there and you see [the victim] coming out of the house.
And you see him walking down the driveway and then you see [the
defendant] coming down. Do you not say anything? Well, it's no
problem. The car is just going to go the way it's going. Or,
do you, based on everything you know, do you say, 'Whoa,
[victim], no, no, no, don't, don't go down the driveway.' Given
everything that you know, which are you going to do? If you are
going to let [the victim], from the position that you now stand
knowing everything, walk down to the end of the driveway because
there is a perfectly unimpaired reasonable person coming down
the street that you know will just stay on the road, if you are
comfortable that's what you are going to do, let [the victim]
keep walking down that driveway, then I guess you've got to
return a verdict of not guilty."
     5
       The prosecutor stated, "So you are floating above this
case . . . knowing everything you know now, here comes [the
defendant] down the street, here comes [the victim] down the
driveway, do you say anything? Because if you say, 'Oh, oh, oh,
don't -- let this car go by.' Your verdict must be guilty."
                                                                   12


was soon to transpire.   This form of argument, sometimes

described as a "Golden Rule" argument, is improper as it asks

the jurors to decide the case based on considerations beyond the

evidence.   Commonwealth v. Finstein, 426 Mass. 200, 205 n.1

(1997).   See Commonwealth v. Thomas, 400 Mass. 676, 684

(1987); Commonwealth v. Santiago, 425 Mass. 491, 501 (1997).

See also Mass. G. Evid. § 1113(b)(3)(D) (2017) (impermissible in

closing argument "to ask the jurors to put themselves in the

position of any person involved in the case").

     b.   Analysis.   As the defendant did not object to the

prosecutor's closing argument, we review any error for a

substantial risk of a miscarriage of justice.    Niemic, 472 Mass.

at 673.   We consider a variety of factors to assess the impact

of the error.    Santiago, supra at 500 (identifying factors).

Two favor the defendant.   First, the statement did not refer to

a collateral issue; it went directly to the essential question

of guilt.   Second, the trial judge's instructions to the jury

were inadequate to overcome whatever prejudicial effect the

statement had.   Although there was an instruction regarding

sympathy, it was a generic instruction, bearing no apparent

relationship to the specific error.   Whatever mitigating effect

it thus had was insufficient to fully remedy the error.     See id.

at 501 (jury instruction that neither "specifically mention[ed]
                                                                    13


sympathy" nor "correct[ed] the misstatement" was insufficient to

remedy error).

     The balance of the factors, however, leads us to conclude

that there was no substantial risk of a miscarriage of justice.

The absence of an objection, in and of itself, suggests that

defense counsel did not consider the error to be sufficiently

prejudicial as to warrant an objection.    See Commonwealth

v. Kozec, 399 Mass. 514, 518 n.8 (1987).       The error was confined

to a single remark.    Additionally, jurors are not bereft of some

capacity "to discount hyperbole and other improper

statements."     Santiago, 425 Mass. at 495.    Lastly, and most

importantly, we perceive no substantial risk of a miscarriage of

justice because the Commonwealth presented a very strong case

against the defendant.    See id. at 501 ("[T]he strength of the

Commonwealth's case is particularly crucial where improper

appeals to sympathy are made").

     The defendant did not dispute that he struck the victim.

We therefore focus on the strength of the evidence of his having

been under the influence of alcohol.    That the defendant had

consumed some quantity of alcohol was undisputed.      Officer Duffy

testified that, at the scene, the defendant said that he had had

two beers.   The defendant himself, in his testimony, largely

confirmed this statement, demurring only slightly by saying he

was unsure whether he finished his second beer.      There was
                                                                   14


extensive evidence -- physical, testimonial, and documentary --

from which the jury could have concluded that the defendant had

consumed more than this amount. 6   Furthermore, regardless of the

specific quantity of alcohol consumed by the defendant, the

evidence warranted a finding by the jury that he was under the

influence of alcohol -- that is, that he was left with a reduced

ability to drive safely, such as by having decreased alertness,

mental clarity, self-control, or reflexes.    See Commonwealth

v. Connolly, 394 Mass. 169, 173 (1985); Commonwealth v. Riley,

48 Mass. App. Ct. 463, 465 (2000).    See also Instruction 5.310

of the Criminal Model Jury Instructions for Use in the District

Court (2013). 7

     Upon arriving at the crash site, Officer Duffy saw that the

defendant had glassy, bloodshot eyes and smelled the odor of

alcohol on his breath.   He then asked the defendant if he knew


     6
       The evidence included a photograph of eight empty beer
cans in the bed of the truck the defendant was driving at the
time of the accident.
     7
       The breathalyzer test results, both of which measured a
BAC of .19 percent, merit a brief note. The jury declined to
convict the defendant on the theory that his BAC was 0.08
percent or greater, even though they could have subscribed to
this theory in addition to, rather than in the alternative to,
the theory that he was under the influence. The defendant
presented testimony from two expert witnesses that, taken
together, suggest that the test results may have been
inaccurate, and artificially high, due to the side effects of a
"lap band" surgical procedure the defendant had previously
undergone.
                                                                    15


what time it was -- the defendant said that it was 9:00 P.M.

when, in fact, it was 10:35 P.M.    Officer Duffy then asked the

defendant if he had been drinking, and the defendant admitted to

having two beers.    It was then that Officer Duffy administered

the field sobriety tests, which Officer Kennedy witnessed.

     The jury also heard testimony from both officers as to the

defendant's poor performance on the field sobriety tests.    When

the tests began, and the defendant was asked to stand in the

"instructional position" -- one foot in front of the other, heel

to toe, and arms at his sides -- he was unable to maintain his

balance without raising his arms.    He was then asked to recite

the alphabet, from C to W.    He slurred through several letters

in the middle to the point that neither officer could understand

those letters, he continued past W, and started "all over again"

at A.    Next, when asked to stand on one leg and count to thirty,

he had to place his raised foot down four times, and again he

had to use his arms for balance.    Finally, when he was asked to

walk a straight line, he failed to count his steps aloud as

instructed; he was unable to place one foot directly in front of

the other, heel to toe; and he was yet again unable to maintain

his balance without raising his arms. 8


     8
       There is no dispute as to the adequacy of Officer Duffy's
instructions to the defendant during the tests, and Duffy's
testimony reflects that he explained them thoroughly and
                                                                   16


     The details of the accident itself confirm what the

foregoing already reveals -- impairment.   The defendant claimed

that he was driving down Dewey Street at a speed somewhere

between twenty and twenty-three miles per hour.   Yet, not only

was he unable to avoid striking the victim, but after doing so,

he continued for another sixty feet, partially along a lawn, and

knocked over a mailbox, before coming to a complete stop.    In

contrast, a motorist who happened upon the accident almost

immediately after it occurred, upon seeing the victim's body

lying in the road before him, came to a stop between fifteen and

twenty feet before reaching the victim, even though he was

traveling at about forty miles per hour.   After he stopped, he

made a 911 call, retrieved his flashlight, and went to the

victim to see if he was responsive.   By this point, the

defendant and Desrosiers were only just exiting their vehicle,

sixty feet away.

     c.   Assessment.   While reasonable minds may differ as to

the strength of each piece of evidence individually, when taken

as a whole, the case against the defendant was very strong, and

certainly more than sufficient to permit the conclusion that the

prosecutor's improper argument did not create a substantial risk

of a miscarriage of justice.


properly, including with a demonstration of the line-walking
test.
                                                                    17


     4.   Failure to give lesser included offense instruction.

Motor vehicle homicide by negligent or reckless operation is a

lesser included offense of motor vehicle homicide by negligent

or reckless operation while under the influence of alcohol.

G. L. c. 90, § 24G(a), (b).   See, e.g., Commonwealth v. Roth,

437 Mass. 777, 778-779 & n.1 (2002).    Prior to closing

arguments, the Commonwealth asked the trial judge to include an

instruction on the lesser included offense, but after the

defendant objected, the trial judge decided against doing so.

On appeal, the defendant reverses course -- he and the

Commonwealth both agree that the trial judge erred by acceding

to the objection of defense counsel.    See Commonwealth

v. Woodward, 427 Mass. 659, 663-664 (1998).    In addition to his

argument that the trial judge's error directly entitles him to

relief, the defendant presses two related arguments -- that his

counsel was ineffective by objecting to the instruction without

consulting him, and that a different judge improperly denied the

defendant's postconviction motion to reduce the verdict to one

based on the lesser included offense.

     a.   Relief based on judicial error.   We agree that there

was an error.   "When the evidence permits a finding of a lesser

included offense, a judge must, upon request, instruct the jury

on the possibility of conviction of the lesser crime" (emphasis

supplied).   Commonwealth v. Gould, 413 Mass. 707, 715 (1992).
                                                                    18


See Commonwealth v. Shelley, 477 Mass. 642, 643 (2017).

Although this issue typically arises in cases where the judge

declines a defendant's request for such an instruction, rather

than the Commonwealth's, it matters not which party makes the

request.    See Woodward, supra.   Here, the evidence permitted a

finding on the lesser included offense, and the Commonwealth

requested the instruction; thus, the trial judge had no

discretion to refuse to give the instruction.     Id. at 662-663

     In a criminal matter, an error in the giving of, or failure

to give, a jury instruction, if occasioned by the defendant's

own request, is regarded as an invited error, and is reviewable

only to the extent necessary to prevent a substantial risk of a

miscarriage of justice. 9   Commonwealth v. Grant, 49 Mass. App.

Ct. 169, 171 (2000).    See Commonwealth v. Vinnie, 428 Mass. 161,

180 (1998); Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 196

(1991).    See also Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979)


     9
       Under Federal law, invited errors are generally deemed
unreviewable. See, e.g., United States v. Young, 745 F.2d 733,
752 (2d Cir. 1984); United States v. Console, 13 F.3d 641, 660
(3d Cir. 1993); United States v. Silvestri, 409 F.3d 1311, 1327
(11th Cir. 2005). But see United States v. Wells, 519 U.S. 482,
487-488 (1997) (invited error doctrine does not preclude review
by United States Supreme Court). One court explains that this
result prevails because the right to take exception to the error
is not merely forfeited, but waived, in the strict sense of the
term. See United States v. Perez, 116 F.3d 840, 844-845 (9th
Cir. 1997). See generally United States v. Olano, 507 U.S. 725,
733-734 (1993) (discussing distinction between waiver and
forfeiture).
                                                                     19


("No party may assign as error the giving or the failure to give

an instruction unless he objects thereto before the jury retires

to consider its verdict").    "We review the evidence and the case

as a whole.   We consider the strength of the Commonwealth's

case, the nature of the error, the significance of the error in

the context of the trial, and the possibility that the absence

of an objection was the result of a reasonable tactical

decision."    Azar, 435 Mass. at 687.   We need not repeat what we

have already said about the weight of the evidence, and only

remark that it weighs heavily against the conclusion that the

trial judge's error created a substantial risk of a miscarriage

of justice.

     Counterbalancing this are the nature and significance of

the error, which implicate not only the "propriety of the

verdict returned by the jury," but also "the impropriety of

withdrawing from their consideration another verdict which,

although they might not have reached it, was nevertheless open

to them upon the evidence."    Commonwealth v. Kendrick, 351 Mass.

203, 213 (1966).    However, these factors do not overcome the

weight of the evidence in this case, and the likelihood that the

omission of the instruction was a core component of the over-all

defense strategy.    Because the defendant admitted to striking

and killing the victim, including the instruction on the lesser

included offense would have created a high degree of risk that
                                                                  20


the defendant, if not convicted of the greater offense, would be

convicted of the lesser included offense.   Such circumstances

naturally lend themselves to consideration of an "all or

nothing" strategy -- i.e., one designed primarily to undermine

the evidence of alcohol consumption in order to win an outright

acquittal.   The record suggests, quite strongly, that this was

the primary defense strategy. 10

     Based on the record before us, the defense strategy was a

reasonable one, and we are not "left with uncertainty that the

defendant's guilt has been fairly adjudicated."   Randolph, 438



     10
       We say this not only because counsel affirmatively
opposed the instruction, but also because of the extensive
efforts undertaken to undermine evidence that the defendant had
a BAC of .08 percent or greater, and evidence that he was under
the influence of alcohol. Counsel went to considerable lengths
to call into question the credibility of the .19 percent
breathalyzer test results, including by presenting the
interlocking testimony of two expert witnesses, and was
remarkably successful in overcoming this theory of the case.
See note 7, supra. Although counsel was not successful in
overcoming the other theory of the case -- that the defendant
was under the influence of alcohol -- the record also discloses
intensive, vigorous efforts to do so. These efforts included
presenting expert testimony suggesting that the defendant's
behavior in the booking video did not indicate impairment, as
well as conducting careful, exacting cross-examinations of
police officers and an expert who testified on the subject of
field sobriety tests. The strategy culminated in a closing
argument that focused almost entirely on the alcohol-related
evidence, stressing the reasons why the jury should credit
neither the breathalyzer test results nor the other evidence
that the defendant was under the influence of alcohol. Had the
strategy succeeded on both points, rather than one, the
defendant would have won an outright acquittal.
                                                                        21


Mass. at 294-295.   Accordingly, the defendant is not entitled to

relief by virtue of the trial judge's error.

     b.   Relief based on error by counsel.    Whether the

defendant is entitled to relief by virtue of an error by

counsel, however, is a separate question.     The defendant

maintains that his counsel's objection was harmful to his

position and that he was prejudiced by his counsel's failure to

consult with him about whether to object to (or to request) a

lesser included offense instruction.    Had he been consulted, the

defendant contends, he would have insisted that the trial judge

instruct the jury on the lesser included crime.     The Supreme

Judicial Court has left undecided the question whether the

defendant has final authority over the decision.

See Commonwealth v. Donlan, 436 Mass. 329, 334-335 (2002).        See

also Committee for Public Counsel Services, Assigned Counsel

Manual c. IV, part 1, § VI.G.1 (2012),

https://www.publiccounsel.net

/private_counsel_manual/CURRENT_MANUAL_2012/MANUALChap4Criminal

Standards.pdf [https://perma.cc/3GR2-9GU6] (criminal defense

attorneys should consult with their clients when developing

overall defense strategy).

     On the record before us, we are unable to reach the merits

of the defendant's argument.    "[T]he preferred method for

raising a claim of ineffective assistance of counsel is through
                                                                  22


a motion for a new trial."   Commonwealth v. Zinser, 446 Mass.

807, 810 (2006).   "[A] 'claim of ineffective assistance may be

resolved on direct appeal of the defendant's conviction when the

factual basis of the claim appears indisputably on the trial

record.'"    Id. at 811, quoting from Commonwealth v. Adamides, 37

Mass. App. Ct. 339, 344 (1994).   Here, there is no affidavit

from counsel in the record, and the trial judge has not had an

opportunity to review the defendant's claim. 11

     c.    The rule 25(b)(2) motion.   The defendant's motion under

Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995),

argued, in broad terms, that he was entitled to relief in order

to correct the trial judge's error and to promote substantial

justice.    He specifically sought a reduction in the verdict, and

not a new trial, explaining that this would promote the

interests of judicial economy by obviating the need for him to

bring a motion for a new trial based on ineffective assistance. 12

The motion judge, who was not the trial judge, denied the motion

based on the weight of the evidence.    See Commonwealth v. Rolon,

     11
       Although the defendant submitted his own affidavit, it
was presented in support of a motion to reduce the verdict to
the lesser included offense, pursuant to Mass.R.Crim.P.
25(b)(2), as amended, 420 Mass. 1502 (1995).
     12
       The defendant described his ineffective assistance claim,
but did not assert it, saying that such a claim would be based,
at least in part, on counsel's alleged failure to consult with
him. It was in this context that he cited his affidavit. See
note 11, supra.
                                                                  23


438 Mass. 808, 822 (2003) (reduction to lesser verdict is not

justified if it would be inconsistent with weight of evidence,

or if made based on factors irrelevant to level of offense

proved).

     On appeal, the defendant argues that the motion judge erred

in his disposition of the motion because it challenged the

fairness of the trial, not the weight of the evidence.

See Commonwealth v. Pring-Wilson, 448 Mass. 718, 731 (2007). 13   A

judge's powers under rule 25(b)(2), he correctly notes, include

the power "to ameliorate injustice caused by the Commonwealth,

defense counsel, the jury, the judge's own error, or . . . the

interaction of several causes."    Woodward, 427 Mass. at 667.

     The issue is moot.   The defendant's motion did not seek

relief based on an error by counsel, see note 12, supra, and

inasmuch as it sought relief based on the trial judge's error,

his argument merges into that which we have already addressed in

this appeal.

     5.    Other ineffective assistance claims.   Separate and

apart from the ineffective assistance claim premised on

counsel's objection to the lesser included instruction, the

     13
       See also Kendrick, 351 Mass. at 213 (distinguishing
between concern regarding "the propriety of the verdict returned
by the jury" and concern regarding "the impropriety of
withdrawing from their consideration another verdict which,
although they might not have reached it, was nevertheless open
to them upon the evidence").
                                                                  24


defendant also argues that he received ineffective assistance

for three other reasons.   Two are based on omissions by counsel,

and must be treated separately.

     a.   Arguments based on omission.   First, the defendant

claims that his counsel was ineffective because, during the

hearing on the motion to suppress the breathalyzer test results,

he failed to impeach two witnesses -- officers who were involved

in the booking process -- by pointing out inconsistencies

between their testimony and the booking video.   Second, he

claims that his counsel was ineffective because, at trial, he

did not object to testimony from Officer Duffy, who opined on

the ultimate issue when he stated that, based on the field

sobriety tests and his other observations at the crash site, he

"formed the opinion that [the defendant] had been operating

under the influence of alcohol."

     "Because virtually any omitted objection or argument can,

at least on its face, be attributed to ineffective assistance of

counsel, a wise defendant could in most cases opt for a more

favorable standard of review simply by couching his waived claim

in the language of ineffective assistance."   Randolph, 438 Mass.

at 295.   That is precisely what the defendant does with these

arguments.   As this has the potential to produce awkward

results, in circumstances such as these, we do not evaluate the

ineffective assistance claim separately from the underlying
                                                                    25


waived objection or argument; rather, we determine whether there

was a substantial risk of a miscarriage of justice.    Id. at 295-

296.    "[I]neffectiveness is presumed if the attorney's omission

created a substantial risk, and disregarded if it did not."     Id.

at 296.

       For the reasons we have already discussed, the purpose

underlying the fifteen-minute waiting period rule was satisfied,

and the minor inconsistencies between the officers' testimony

and the booking video were immaterial.    Moreover, counsel

successfully undermined the reliability of the test results --

the jury so distrusted the .19 percent readings that they

rejected the theory that the defendant had a BAC of even .08

percent.    There is no substantial risk of a miscarriage of

justice in these circumstances.

       As to Officer Duffy's opinion testimony, it was, of course,

improper.    "In a prosecution for operating a motor vehicle while

under the influence of alcohol, lay witnesses, including police

officers, may not opine as to the ultimate question whether the

defendant was operating while under the influence, but they may

testify to his apparent intoxication."    Commonwealth v. Canty,

466 Mass. 535, 541 (2013), quoting from Commonwealth v. Jones,

464 Mass. 16, 17 n.1 (2012).    However, the defendant is not

entitled to relief based on this error because, "in the context

of the entire trial," we cannot reasonably conclude "that the
                                                                   26


error materially influenced the verdict."    Randolph, supra at

298.    As we have already discussed in extensive detail, there

was overwhelming evidence that the defendant was under the

influence of alcohol.    The officer's statement -- made

immediately after he described the great number of ways in which

the defendant failed the field sobriety tests, and used as a

prelude to then explain why he arrested the defendant -- cannot

fairly be said to have added anything meaningful to the issue.

While the testimony was objectionable, and should have been

excluded had an objection been made, we are not left with "a

serious doubt whether the result of the trial might have been

different had the error not been made."     Azar, 435 Mass. at 687.

       b.   Argument based on affirmative acts.   Lastly, the

defendant argues that his counsel erred, and was ineffective, by

introducing in evidence a nine-minute video recording (interview

video) of his aborted interview with Officer Duffy and Captain

Daniel Spaulding, which took place a few hours after the

accident, at approximately 1:25 A.M., and after the defendant

had been Mirandized.    At the beginning of the interview video,

Captain Spaulding asks the defendant whether he wishes to waive

his Miranda rights and describe the incident.     Several times,

the defendant says he thinks he may want to speak with an

attorney, but he also vacillates throughout that time and does

not make any clear decision until the very end of the interview
                                                                     27


video.    See Commonwealth v. Peixoto, 430 Mass. 654, 658 (2000)

(defendant's invocation of right to counsel must be sufficiently

unambiguous).   While the defendant comes to his decision, he

also offers a terse, fragmented description of the incident, to

the effect that the victim came into the road as he was driving,

and he swerved instinctually. 14

     It is far from clear, on the record, why counsel wished to

introduce the interview video.     The prosecutor was sufficiently

concerned about it that he informed the trial judge, at a

sidebar conference partway through the recital of Officer

Duffy's testimony, of defense counsel's intent to introduce it.

The prosecutor said it would create "volatile ground" because it

would "open[] the door" for him to pose otherwise improper

questions to police officers, and because the jury would see the

defendant invoke his right to remain silent.    The trial judge

was puzzled by counsel's desire to use the interview video, and

she was rightly concerned about the jury seeing the defendant

invoke his right to remain silent.    "[T]testimony regarding a

defendant's statements about his desire not to speak with police


     14
       In the interview video, Captain Spaulding, without posing
a question to the defendant, described the interview as an
opportunity for the defendant to relate the incident and fill in
any "holes" in the investigation. To this, the defendant
responded, "I just (pause). There's no holes. I mean, going to
the road, and (pause). Coming across the street (pause).
Swerved (pause). First instinct, you know, I mean (pause)."
                                                                  28


may suggest to the jury that the defendant is guilty simply

because he chose to exercise his constitutional right to

silence."   Commonwealth v. Beneche, 458 Mass. 61, 75 (2010).

     Counsel gave the trial judge two explanations for why he

wished to introduce the interview video, neither of which is

particularly illuminating.   First, he said the interview video

would support his contention that the officers failed, during

their investigation, to take into account the defendant's

statements, at the scene of the accident, that the victim

"jumped out" in front of him. 15   The defendant made such a

statement, first, to the motorist who first happened upon the

accident, upon his arrival; and second, to Officer Duffy, prior

to the field sobriety tests.   But, as the trial judge noted,

both the motorist and Officer Duffy had already testified as to

those statements.   Additionally, counsel did not mention the

interview video when, in his closing argument, he discussed the

defendant's statement that the victim "jumped out" in front of

the vehicle.

     Second, counsel said that he wished to use the interview

video to rebut anticipated testimony from Captain Spaulding, who

counsel said was "being called with new information to say the

defendant seemed impaired and act[ed] confused during" the

     15
       Precisely how the interview video would support this
argument remains unclear.
                                                                      29


interview.   However, the prosecutor replied that Captain

Spaulding was "only being called in response to [defense

counsel] putting [the video] in."   And, in counsel's closing

argument, he only refers to the interview video in an attempt to

undermine Captain Spaulding's credibility.

     It is quite possible that the record does not accurately or

completely reflect counsel's stated reasons for introducing the

interview video, and it is also possible that there are

additional, more clearly compelling reasons he did so.       We are

only able to say that there is a significant question of fact

concerning the purpose of the interview video. 16   As the

defendant failed to first assert this ineffective assistance

claim in the trial court, the record before us is bereft of any

factual findings on this critical question, with the result that

we are unable to ultimately reach the argument now pressed by

the defendant.   See Zinser, 446 Mass. at 810-811 (ineffective

assistance argument should first be raised in motion for new


     16
       There also exists an unresolved factual question whether
and to what extent the interview video may have caused the
defendant to suffer prejudice. On the one hand, evidence of a
defendant's desire not to speak with police may be indicative of
consciousness of guilt. See Peixoto, 430 Mass. at 658; Beneche,
458 Mass. at 75. On the other hand, the interview video may
have created sympathy for the defendant -- he is visibly
distraught and overwhelmed; he asks after the condition of the
victim; he says, with apparent earnestness, that he does not
want to hinder the officers' work by not speaking; and when he
finally decides not to answer any questions, he apologizes.
                                                                  30


trial, and may only be raised for first time in appellate

proceeding when its factual basis is clear on record).

     Conclusion.   On the record before us, the defendant has

failed to demonstrate that his conviction should be reversed,

and therefore we affirm the judgment of conviction.   We also

conclude that the single justice did not abuse his discretion in

denying the defendant's renewed motion to stay execution of his

sentence, and we therefore affirm the single justice's order

denying that renewed motion.

                                    So ordered.
