MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted after a jury trial in the District Court of operating under the influence of liquor and negligent operation of a motor vehicle, the defendant appeals. He argues that the Commonwealth presented insufficient evidence that he drove negligently so as to endanger the lives or safety of the public. The defendant further contends that the judge erred in denying without an evidentiary hearing his motion for new trial asserting ineffective assistance of counsel. We affirm.
Background. On January 16, 2018, at approximately 10:15 p.m., Beverly police Officer Ryan Hegarty was driving his marked cruiser on Cabot Street when a silver sedan abruptly “jetted” out of a restaurant parking lot about two car lengths ahead of him. As Hegarty followed behind it, the sedan veered across the median into the oncoming lane several times in the span of about forty-five to sixty seconds. At an intersection, someone threw a glass out of the passengers side of the sedan, which shattered. Hegarty activated his cruisers blue lights and pulled the sedan over.
While Hegarty was walking up to the drivers side of the sedan, the driver rolled down the window and held out an item. As soon as Hegarty reached the window, he smelled alcohol coming from the sedan. The defendant stated, “Heres my license,” and handed Hegarty the item, which was a photo identification from the Department of Defense. After Hegarty handed it back to the defendant and asked for his license, the defendant fumbled with his money clip and handed Hegarty his license to carry a firearm. After Hegarty reiterated that he needed the defendants drivers license, the defendant kept looking through the money clip, which was in his left hand, even though his drivers license was in his right hand. Hegarty took the drivers license and identified the driver as the defendant. Hegarty also asked the passenger for identification, and the passenger apologized for having thrown what he said was a pint glass out of the window. At this time, Hegarty asked the defendant to step out of the sedan to perform field sobriety tests. The defendant replied, “Im just going to Danvers, how about a break.” After Hegarty asked a second time, the defendant complied, holding onto the drivers side door as he stood up and got out of the sedan, and touching the sedan for balance as he walked around it. Near the rear tire, the defendant stumbled, almost fell, and used the sedan to stabilize himself.
Before administering the field sobriety tests, Hegarty asked if the defendant had any injuries that would hinder his ability to perform them. The defendant replied that he had “bad knees,” but that they would not prevent him from performing the tests. Hegarty instructed the defendant on how to complete the walk-and-turn test, and also demonstrated how to do it by taking nine heel-to-toe steps in one direction, taking small steps to turn, and walking back. The defendant attempted the test, but his steps were regular steps rather than heel-to-toe, and he turned by spinning rather than using small steps. Hegarty then explained the one-legged stand test, but the defendant replied that he could not do it because of his legs, and so Hegarty did not administer that test.
Hegarty formed an opinion that the defendant was intoxicated, because he had “glassed-over eyes,” was unable to follow instructions, fumbled with his money clip, and performed poorly on the walk-and-turn test. En route to the police station, the defendant was uncooperative. During booking, the defendant complained of chest distress and was taken by ambulance to a hospital.
In his defense, the defendant presented testimony of his passenger and testified himself. The passenger testified that the defendant had a glass of wine but was not intoxicated, and also had problems with his knees. The defendant testified that he is “a hundred percent disabled,” and described ailments including a glioma cyst on his right foot, bad knees, a torn meniscus in his right knee, bilateral flat feet, and no core strength due to a stomach surgery when “[his] internal organs exploded.” Over the Commonwealths objection, the defendant introduced hospital records from the night of his arrest that contained the notation: “Patient is requesting that I document[ ] that he has requested a blood alcohol level. Myself as well as [another doctor] ․ have discussed with him at length that he is here for chest pain and that a blood alcohol level is not medically indicated and will not be drawn. Patient is not clinically intoxicated.”
After trial, the defendant moved for a new trial, arguing that his trial lawyer was ineffective for not having presented more evidence of his disabilities or the testimony of the emergency room doctor who treated him to explain what was meant by the notation “not clinically intoxicated.” In support of his motion, the defendant submitted his own affidavit, and affidavits from appellate counsel, the emergency room doctor, and a nurse who reviewed his medical records. After a nonevidentiary hearing, the trial judge denied the motion for new trial without a hearing, deeming the defendants affidavit “self-serving,” and drawing “a negative inference” from the absence of an affidavit of trial counsel. The judge concluded that trial counsels strategy of pursuing the defense that the defendant was not intoxicated by cross-examining Hegarty and presenting testimony of the passenger and the defendant was not ineffective.
Discussion. 1. Negligent operation. The defendant argues that the evidence was legally insufficient to convict him of negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a).
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“The test for sufficiency of the evidence is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Santana, 95 Mass. App. Ct. 265, 267 (2019), quoting Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
The defendant acknowledges that the evidence at trial established that he operated a motor vehicle on a public way, but argues that the Commonwealth did not prove that he did so negligently so that the lives or safety of the public might be endangered. Negligent operation “only requires proof that the lives or safety of the public might be endangered, not that they were endangered.” Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006). “A defendants driving need not have been erratic to support a conviction of negligent operation, so long as the conduct, taken as a whole, might have endangered the lives and safety of the public.” Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 370 (2019). “The question is whether the defendants driving had the potential to cause danger to the public, not whether it actually did.” Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015).
The jury heard evidence that, while intoxicated, the defendant abruptly pulled out of a parking lot onto the road two car lengths in front of a marked police cruiser, and then veered across the median into the oncoming lane several times in the span of less than one minute. From that evidence, a reasonable jury could conclude that the defendant was operating negligently so as to endanger the lives or safety of the public. See Teixeira, 95 Mass. App. Ct. at 370-371 (even without evidence of erratic driving, jury could conclude defendant put lives of public in danger when he consumed alcohol and then drove substantially below speed limit while holding phone in front of face); Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 33-35 (2007) (driver fishtailed out of parking spot in parking lot with no pedestrians or other erratic driving).
The defendant argues that the evidence was insufficient because he was driving on an “otherwise empty road” and there were no oncoming vehicles when he veered across the center line. However, there was at least one other vehicle on the road -- Officer Hegartys marked police cruiser -- in front of which the defendant pulled out abruptly. Further, “[o]ne may operate a vehicle ‘in such a way that would endanger the public although no other person is on the street.’ ” Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 543 (2020), quoting Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005). The fact that no vehicles were in the oncoming lane at the time did not preclude the jury from finding that the defendant operated negligently.
The defendant also argues that the reason Hegarty stopped the sedan was not because of the defendants driving, but because the passenger threw the pint glass out the window. The fact that Hegarty did not activate his blue lights immediately after the defendant pulled abruptly out of the parking lot, or when he first veered across the center line, also did not preclude the jury from finding that the defendants operation of his vehicle was negligent based on the evidence of his own conduct, and not his passengers.
2. Motion for new trial. The defendant argues that the trial judge erred in denying without an evidentiary hearing his motion for new trial which contended that trial counsel was ineffective for not having investigated the defendants medical conditions, obtained an expert to explain those conditions, or called to testify the doctor who treated him to explain the meaning of the phrase “not clinically intoxicated” in his hospital records. We review the denial of a motion for new trial “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We extend “special deference” to the decision of a motion judge who was also the trial judge. Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 84-85 (2011), quoting Commonwealth v. Espada, 450 Mass. 687, 697 (2008).
We review the defendants claim of ineffective assistance of counsel under the Saferian standard: whether trial counsels performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and, if so, the deficiency deprived the defendant of an “otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Strategic decisions do not amount to ineffective assistance unless they are “manifestly unreasonable.” Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
“In determining whether a motion for a new trial warrants an evidentiary hearing, both the seriousness of the issue itself and the adequacy of the defendants showing on that issue must be considered.” Commonwealth v. Denis, 442 Mass. 617, 628 (2004). The judge may rule on the motion for new trial on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits. Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). “If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence (and be subject to the prosecutors cross-examination further highlighting the weaknesses in that evidence) will accomplish nothing.” Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004). A motion judge who also presided at trial is entitled to considerable deference in deciding whether to credit affidavits in support of a motion for new trial. Contrast Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015) (motion judge who was not trial judge should “provide some reasons” for accepting or rejecting affidavits in support of motion for new trial).
In her affidavit submitted in support of the motion for new trial, the doctor who treated the defendant averred that she had “no independent memory” of treating him, and that she “did not personally write the notes” in his records, but she did “sign[ ] off as the attending physician” on those notes. The doctor further averred that the notation that the defendant was “not clinically intoxicated” meant that he did “not appear to be drunk.” That opinion would have been cumulative of the testimony of the passenger and the defendant himself, and of the hospital record admitted in evidence.
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See Commonwealth v. Britt, 465 Mass. 87, 93-94 (2013) (ineffective assistance claim had no merit where trial counsel “was aware of the factual issue ․ and effectively presented it to the jury”). Having seen counsels performance at trial, including his persistence in introducing the hospital record over the Commonwealths objection, the judge could infer that counsel made a strategic decision that the hospital record would be more helpful to the defense than would the testimony of a doctor who would be subject to cross-examination and did not remember treating the defendant.
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We agree with the judge that counsels strategy was not manifestly unreasonable when made. See Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995) (trial judges favorable evaluation of trial counsels performance accorded substantial deference). At best, the evidence would have been cumulative. “The decision not to raise cumulative evidence merely for quantitys sake does not constitute ineffective assistance of counsel.” Britt, 465 Mass. at 94. The judge did not err or abuse her discretion in denying the motion for new trial without an evidentiary hearing on the basis of the submitted affidavits and her familiarity with the evidence at trial and trial counsels performance. There was no error.
Judgments affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. The defendant does not raise any issue on appeal with respect to his conviction for operating under the influence of liquor.
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. Similarly, the defendants affidavit was cumulative of his own trial testimony about his disabilities, as was the affidavit of a nurse who did not treat the defendant but who reviewed his medical records.
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. Given the judges finding that trial counsels performance did not fall below the Saferian standard, the averments in appellate counsels affidavit that she had been unable to obtain an affidavit from trial counsel are beside the point.