Commonwealth v. Bradley

• Docket Number: 23-P-24
• Decision Date: 26 December 2023
• Parties: COMMONWEALTH v. GEORGE BRADLEY
• Court: Appeals Court of Massachusetts

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COMMONWEALTH
v.
GEORGE BRADLEY

No. 23-P-24

Appeals Court of Massachusetts

December 26, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), fifth offense.^[1] He filed a motion for a new trial in which he alleged that he had been denied the effective assistance of counsel. The motion was denied without a hearing in a detailed and well-reasoned memorandum of decision and order. The defendant's appeal from the denial of the new trial motion was consolidated with his direct appeal. For the following reasons, we affirm the

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conviction and the order denying the defendant's motion for a new trial.^[2]

Background.^[3]

On April 4, 2019, at approximately 10 A.M., the defendant left Limington, Maine, and headed to Lowell in his pickup truck. Around noon, he was driving on Lowell Street in Peabody when he attempted to pass a vehicle by driving on the opposite side of the road into oncoming traffic. Although the defendant was speeding, he could not complete the pass in time, so he swerved back into his lane and in doing so struck the vehicle in front of him. That car was severely damaged. The defendant kept driving for another seventy-five yards or so before stopping. A number of witnesses reported the accident to the police, who arrived quickly. When the officers approached the truck, they found the defendant leaning against the driver's side door, which was open. The defendant was sitting on the floor with his back against the driver's seat. The defendant told the officers that his left leg was injured, and he had difficulty taking his foot off the gas pedal and putting it on the brake. The officers noted that the defendant's speech was slurred, and his breath smelled of alcohol. He was unsteady on

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his feet, his eyes were red and bloodshot, and he was argumentative and uncooperative. In response to the officers' questions, he denied drinking any alcohol.

After assisting the defendant to the passenger side of the truck, the police conducted two field assessment tests that did not involve walking, both of which the defendant failed to perform satisfactorily. One officer opined that the defendant was "hammered," and another testified that he was "drunk." The defendant was arrested and transported to the police station, where he continued to be combative and belligerent. Eventually, the defendant was taken to the hospital. His antagonistic behavior did not abate, and he was restrained by officers, who handcuffed him to the hospital bed.

There were three passengers in the defendant's truck at the time of the accident, Tina Harmon, the defendant's then girlfriend, Joseph Denehy, the defendant's son, and Denehy's girlfriend. Harmon told officers at the scene that she had been asleep during the entire trip. However, a few days later, Harmon was interviewed by the police in York, Maine, and provided a different version of events. According to Harmon, the defendant bought liquor along the way from Maine and consumed it while driving. He also had stopped at a bar in Peabody, where he consumed more alcohol.

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Although Harmon was on the Commonwealth's witness list, the Commonwealth did not expect her to appear. Harmon had maintained little contact with the Commonwealth, and she had also been criminally charged in Massachusetts with theft based on a report by the defendant's mother that she stole some jewelry and a cell phone from the defendant. As it turned out, however, on the second day of trial, Harmon voluntarily arrived at the courthouse to the surprise of the prosecutor and defense counsel.^[4] Ultimately, Harmon did testify and her testimony was consistent with the statement she had given to the police in Maine.

At trial, the defendant did not contest that he caused the accident. He contended that, while he was responsible, he was not impaired by alcohol. To this end, he presented testimony from his son, who claimed that the defendant did not have any alcohol throughout the trip from Maine, and from his mother, who saw the defendant at the police station shortly after the accident and testified that the defendant was not intoxicated. Defense counsel outlined this theory of the defense, that the defendant was not intoxicated when he caused the accident, in his opening statement. In addition, based on the...