Commonwealth v. George E. Maney.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-989

COMMONWEALTH

vs.

GEORGE E. MANEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction of operating a

motor vehicle while under the influence of liquor, third

offense, and from the denial of his motion for a new trial on

grounds of ineffective assistance of counsel. He raises two

issues: (1) that the Commonwealth's closing argument, which

referenced the defendant's right not to testify, created a

substantial risk of a miscarriage of justice; and (2) that the

court erred in denying the motion for new trial without first

holding an evidentiary hearing, where the defendant raised

issues regarding counsel's failure to present an expert witness

on the effects of sleep deprivation. We affirm both the
2

defendant's conviction and the denial of the motion for a new

trial.

Background. At approximately 3:20 A.M. on February 24,

2019, an Ipswich police officer encountered a plow truck, still

running and parked on the side of the road. The officer

observed the defendant, George Maney, reclined and sleeping in

the driver's seat. The officer tapped on the truck's window

"approximately a dozen times" to get the defendant's attention,

to which the defendant woke briefly several times and then fell

back asleep. When the defendant eventually woke and opened his

window, the officer testified that he was "hit with a wave of

the smell of intoxicating liquor." The officer further

testified that the defendant, upon awakening, had "bloodshot and

glassy" eyes, and that the defendant's speech was "thick-

tongued" and "slurred." The officer also observed an opened

Four Loko can in the car's cupholder, which was half full.

The officer instructed the defendant to exit the car,

whereupon the defendant appeared unsteady on his feet and

smelled of alcohol. The officer formed the opinion that the

defendant was "heavily intoxicated," and placed the defendant

under arrest.

At trial, the defense called one witness, the defendant's

girlfriend, who testified that she was with the defendant the
3

night before he was arrested. The girlfriend testified that

when the defendant arrived at her house at around 12:30 A.M.,

they decided to have a drink in the parking lot, and that she

was the person who drank half of the Four Loko that was found in

the defendant's car when he was arrested over twenty-four hours

later. The girlfriend also testified that she had spilled some

of the drink in the car. Lastly, she testified that the

defendant had slept only a "few" hours in the thirty-six to

forty-eight hours before the arrest.

The defendant's closing argument primarily focused on how

quickly the police officer formed his opinion that the defendant

was heavily intoxicated. Defense counsel argued that, had the

police officer spent "more than a minute" with the defendant, he

would have discovered that the drink, and the odor in the car,

were caused by the defendant's girlfriend, and that the

defendant's appearance and actions were the product of

exhaustion and not intoxication.

In turn, the Commonwealth's closing argument focused, in

part, on challenging the credibility of the defendant's

girlfriend. To this point, the prosecutor made the following

comments to which there was no objection:

Now, you did hear from the defendant's girlfriend, and I
want to be very clear: the defendant -- and you'll hear
from the judge -- has an absolute right not to testify; he
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doesn't have to put on a case; he doesn't have to present
any evidence. The burden rests entirely on the
Commonwealth. But ladies and gentlemen, when someone
decides to put on evidence, it's still subject to scrutiny.

The jury found the defendant guilty of operating a motor

vehicle while under the influence of alcohol. The defendant was

sentenced to two and one-half years in the house of correction,

eighteen months to be served, with the balance suspended for

five years of probation.

In 2024, over four years after the trial, the defendant

filed a motion for a new trial based on trial counsel's alleged

failure "to properly investigate [the defendant]'s medical

issues," which allegedly could have provided an alternative

explanation for the defendant's symptoms and behavior that

morning. In support of his motion the defendant relied

primarily on an affidavit he submitted from Dr. Christopher

Rosenbaum, an emergency medicine physician and medical

toxicologist at Mass General Brigham Newton-Wellesley Hospital.

Dr. Rosenbaum's affidavit stated that the defendant's

"documented medical history of sleep apnea, asthma, and sleep

deprivation would have combined to impair his level of alertness

and consciousness." The defendant also submitted affidavits

from both of his trial attorneys, in which they averred that the

defendant had inquired about hiring a "sleep expert" before
5

trial. One of the attorneys also stated that Dr. Rosenbaum's

evidence "would have been helpful."

The motion judge denied the motion without holding an

evidentiary hearing. The judge gave "limited credit" to Dr.

Rosenbaum's affidavit, noting that it did "not address critical

evidence . . . such as the open container of alcohol in the car

and the overwhelming odor of alcohol" (footnote omitted). The

defendant appeals.

Discussion. 1. Closing argument. The defendant argues

that the prosecutor impermissibly shifted the burden of proof by

commenting in her closing argument that "the defendant . . . has

an absolute right not to testify; he doesn't have to put on a

case; he doesn't have to present any evidence." Because the

defendant did not object to the prosecutor's statement at trial,

we review the argument for error and, if established, to

determine whether the error created a substantial risk of a

miscarriage of justice such that "we have a serious doubt

whether the result of the trial might have been different had

the error not been made." Commonwealth v. Dirgo, 474 Mass.

1012, 1016 (2016), quoting Commonwealth v. Azar, 435 Mass. 675,

687 (2002), S.C., 444 Mass. 72 (2005).

As a general rule, prosecutors "cannot make comments that

shift the burden of proof from the Commonwealth to the
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defendant." Commonwealth v. Johnson, 463 Mass. 95, 112 (2012),

quoting Commonwealth v. Amirault, 404 Mass. 221, 240 (1989).

Such burden shifting arises when "a prosecutor offers direct

comment on the defendant's decision not to testify," as this

erroneously signals to the jury that the defendant has a duty to

present evidence of their innocence, "thereby lessening the

Commonwealth's burden to prove every element of a crime"

(quotation and citation omitted). Johnson, supra.

Prosecutors are permitted, however, to emphasize weaknesses

in the defense's case even if, in doing so, they "prompt some

collateral or passing reflection on the fact that the defendant

declined to testify." Commonwealth v. Feroli, 407 Mass. 405,

409 (1990). "The question is whether the challenged remark,

when viewed 'in the context of the entire argument,' is

'directed more at the general weakness of [the defendant's]

defense than toward the defendant's own failure to testify.'"

Id., quoting Commonwealth v. Storey, 378 Mass. 312, 324 (1979),

cert. denied, 446 U.S. 955 (1980). "[U]nless a prosecutor's

comments are of such a nature that a jury would naturally and

necessarily construe them to be directed to the failure of the

defendant to testify, they are not prejudicially unfair."

Commonwealth v. Smallwood, 379 Mass. 878, 892 (1980), quoting
7

United States v. Armedo-Sarmiento, 545 F.2d 785, 793 (2d Cir.

1976), cert. denied, 430 U.S. 917 (1977).

Here, viewed in the context of the entire argument, we are

satisfied that the jury would not have understood the

prosecutor's remarks as directed at the defendant's failure to

testify. First, the context for the prosecutor's statement was

her discussion of the girlfriend's testimony, which defense

counsel had just highlighted. The comment that the defendant

did not have to testify thus arose in the context of challenging

(appropriately) the evidence that the defendant did adduce.1

Second, the prosecutor's statement of the law was entirely

accurate, and even more to the point, defense counsel had

already requested that the judge instruct the jury that the

defendant had a right not to testify, even though that

instruction would necessarily draw the jury's attention to the

fact that the defendant did not testify. Cf. Commonwealth v.

Elliot, 87 Mass. App. Ct. 520, 525 (2015) (closing argument

permissible where prosecutor "followed up the challenged remark

1 The prosecutor's closing argument specifically called
attention to the discrepancies between the girlfriend's
testimony and the evidence found at the scene of the arrest.
These discrepancies included the girlfriend's statement on
cross-examination that she left a green can of Four Loko in the
passenger's side cupholder of the truck. The officer testified
that the can was, in fact, found in the driver's side cupholder,
and the exhibit entered into evidence was an orange can.
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by confirming that the defendant had no duty to produce evidence

at trial"). Under those circumstances the prosecutor's comment

added little, if anything, to what the jury in any event would

hear at the defendant's request.

The defendant contends, however, that the "timing and

context" of the prosecutor's comments -- that is, before the

judge instructed the jury that they may not consider the

defendant's silence in any way -- reveal their "true purpose" of

inviting the jury to draw an adverse inference from the

defendant's silence. We do not agree. To begin, we find it

relevant that, despite the allegedly "gratuitous nature" of the

comments, there was no objection to the prosecutor's statement

at trial. See Commonwealth v. Whitman, 453 Mass. 331, 348

(2009) ("The absence of objection, while not dispositive, may

suggest that the manner and tone of the argument were not

unfairly prejudicial"). Moreover, the defendant's argument

relies primarily on Justice Stevens's dissenting opinion in

Lakeside v. Oregon, 435 U.S. 333, 345 (1978) (Stevens, J.,

dissenting), in which Justice Stevens suggested that juries

should not be reflexively instructed about the defendant's right

not to testify, as the instruction might have the opposite

effect of causing the jury to consider the failure. The

defendant's new-found concern about references to the
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defendant's right not to testify rings hollow, however, in light

of the fact that at trial, defense counsel specifically asked

that the jury be instructed on the defendant's right not to

testify.

Finally, the defendant argues that, by referencing the

defendant's right not to testify, the prosecutor also violated a

particular Massachusetts statute, G. L. c. 278, § 23. We do not

agree that G. L. c. 278, § 23, provides additional or different

protections with respect to comments on the defendant's failure

to testify. General Laws c. 278, § 23, provides, in pertinent

part, that "[a]t the trial of a criminal case . . . the fact

that the defendant did not testify at any preliminary hearing in

the first court . . . shall not be used as evidence against him,

nor be referred to or commented upon by the prosecuting officer"

(emphasis added). The defendant argues that the statute creates

a bright-line rule that a prosecutor may not refer to or comment

on the defendant's failure to testify. We disagree. Under the

statute's plain language, G. L. c. 278 § 23, applies to a

prosecutor's references to a failure to testify at a

"preliminary hearing in the first court." Here, the

prosecutor's closing argument did not refer to or comment on the

defendant's failure to testify at a preliminary hearing of any

sort. Moreover, and in any event, we would not construe G. L.
10

c. 278, § 23, as adding materially to the existing law discussed

above, which the prosecutor's comment did not violate. See

Feroli, 407 Mass. at 409; Commonwealth v. Sherick, 23 Mass. App.

Ct. 388, 342 n.5 (1987).2

While it is generally best for prosecutors to steer clear

of any reference to the defendant's right not to testify, we

discern no error here, where the prosecutor made an accurate

statement of law that was also mirrored in the judge's

instructions. See Smallwood, 379 Mass. at 892-893 (no error

where, after alleged allusion to defendant's failure to testify,

judge gave "complete and emphatic instructions to the jury" that

defendant need not present any evidence). Because the

prosecutor's argument did not constitute error, we need not

determine whether the argument created a substantial risk of a

miscarriage of justice. Accordingly, we affirm the conviction.

2. Motion for new trial. A motion for a new trial may be

denied without an evidentiary 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). "In

2 In Sherick, 23 Mass. App. Ct. at 342 n.5, we explained
that G. L. c. 278, § 23 -- having been enacted before
"constitutional guarantees [were] extended by interpretation to
protect a defendant's 'silence' in the early stages of the
criminal process" -- had been "largely if not altogether
overtaken by those guarantees."
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determining whether a substantial issue exists, 'a judge

considers the seriousness of the issues raised and the adequacy

of the defendant's showing on those issues'" (citation omitted).

Commonwealth v. Upton, 484 Mass. 155, 162 (2020). The question

here is whether the defendant presented sufficient credible

information that his counsel's performance "fell 'measurably

below that which might be expected from an ordinary fallible

lawyer,' and that this 'likely deprived the defendant of an

otherwise available, substantial ground of defence.'"

Commonwealth v. Licata, 412 Mass. 654, 661 (1992), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We review a

judge's decision for an error of law or other abuse of

discretion. See Commonwealth v. Tavares, 491 Mass. 362, 365

(2023).

The defendant argued that his trial counsel rendered

ineffective assistance by deciding not to obtain or to bring

forth evidence related to the defendant's medical history,

"including [the defendant's] history of asthma and sleep

deprivation, which later led to a diagnosis of sleep apnea."

The thrust of the defendant's argument was that expert testimony

as to the defendant's underlying medical conditions could have

better explained the defendant's appearance and behavior at the

time of the arrest.
12

Here, the motion judge did not abuse his discretion in

concluding that Dr. Rosenbaum's affidavit did not raise a

substantial question as to counsel's ineffectiveness. Dr.

Rosenbaum's affidavit states that the defendant had a

"documented medical history" of sleep apnea, asthma, and sleep

deprivation that "could have explained" how the defendant

appeared and behaved the night he was arrested. Dr. Rosenbaum

does not opine that these conditions were the cause of the

defendant's behavior, so the affidavit provides weak evidence,

at best. Moreover, Dr. Rosenbaum's affidavit does not address

other highly pertinent evidence that "could have explained" the

defendant's behavior -- the evidence suggesting the defendant's

alcohol consumption, from the time of the arrest. The affidavit

does not contain any reference to the open container of alcohol

in the defendant's truck, or to the "overwhelming" odor of

alcohol when police encountered the defendant. The affidavit

also fails to address the officer's testimony that the

defendant, after exiting the truck, appeared "unsteady" on his

feet.

Dr. Rosenbaum's affidavit contained other substantial

deficiencies as well. For example, there is no indication that

Dr. Rosenbaum reviewed the entirety of the defendant's medical

records, or that Dr. Rosenbaum personally examined the
13

defendant. The affidavit relies on a review of only those

medical records that the defendant's posttrial counsel provided.

Moreover, although Dr. Rosenbaum's affidavit avers that he

worked as an attending physician and medical toxicologist, it

references no particular expertise related to issues of sleep

deprivation or sleep disorders. See Commonwealth v. Goodreau,

442 Mass. 341, 348-349 (2004) ("If the theory of the motion, as

presented by the papers, is not credible or not persuasive,

holding an evidentiary hearing . . . will accomplish nothing").

Finally, we agree with the motion judge that the suggested

expert testimony would have posed serious concerns for the

defense, where such testimony could well have exposed the

weaknesses in the defendant's case through the cross-examination

of his own expert. The expert likely would have been cross-

examined regarding the evidence of alcohol consumption at the

scene, including the very strong odor of alcohol coming from the

defendant. The expert also could have been subject to cross-

examination on how alcohol consumption intensifies the effects

of sleep deprivation. In cases that involve strategic or

tactical decisions, the defendant must show that these decisions

were "manifestly unreasonable," and not merely unsuccessful

(citation omitted). Commonwealth v. White, 409 Mass. 266, 273
14

(1991). Here, the motion judge committed no error in denying

the motion for a new trial.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Neyman,
Ditkoff & Englander, JJ.3),

Clerk

Entered: November 4, 2025.

3 The panelists are listed in order of seniority.