Commonwealth v. Steven R. Luciano.

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

23-P-1374

COMMONWEALTH

vs.

STEVEN R. LUCIANO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the defendant was convicted of

operating a motor vehicle while under the influence of marijuana

(OUI-marijuana), G. L. c. 90, § 24 (1) (a) (1).1 The defendant

did not perfect an appeal from that conviction but he

subsequently moved for a new trial, arguing that his trial

counsel was ineffective for failing to present expert testimony

that the defendant's Spanish language background and fear of the

officer impacted his performance on the roadside assessments.

The judge, who also presided at trial, denied the defendant's

1The defendant was acquitted of negligent operation of a
motor vehicle.
motion for a new trial without conducting an evidentiary

hearing. We affirm.

Background. We recite the facts as the judge could have

found them.2 On May 26, 2019, at around 1 A.M., an officer of

the Erving police department was on uniformed patrol in a marked

police cruiser. While parked on the side of the road, the

officer observed the defendant's car traveling at fifty miles

per hour in an area where the speed limit was forty miles per

hour. As the car passed the officer, its driver's side tires

crossed the double yellow line separating the two lanes of

traffic. The officer followed behind the defendant's car as it

continued to exceed the posted speed limit and its driver's side

tires touched the double yellow line. The officer then

initiated a traffic stop, which his body camera and dash camera

recorded.

As the officer approached the passenger side door of the

car, he smelled burnt marijuana and saw smoke wafting out of the

car's window, which was rolled down about an inch. The officer

asked the defendant, the sole occupant, to roll down the window

further, and the defendant rolled down the window about four

2 The parties stipulated that the defendant operated a
vehicle on a public way and that the substance found in the
vehicle was marijuana. See Commonwealth v. Gallagher, 91 Mass.
App. Ct. 385, 388 (2017). The only contested issue was whether
the defendant was impaired by marijuana while driving.

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inches. The defendant denied the existence of the smoke and

having smoked in the car, and he stated that there was no

marijuana in the car. After the officer pointed out the smoke,

the defendant admitted that he had recently smoked marijuana in

the parking lot of a nearby gas station. The defendant's eyes

were bloodshot and "droopy," and the defendant seemed lethargic

when answering questions. The officer asked the defendant to

exit the vehicle. As the defendant exited the vehicle, he

brushed ashes off of his shirt and shorts. The officer

instructed the defendant to perform a nine-step walk-and-turn

assessment. The defendant did not comply with the officer's

instructions. Rather, he repeatedly attempted to start the

assessment before the officer finished giving instructions, and

was unsteady, stumbling and waving his arms for balance while

listening to the instructions. During the one-legged stand

assessment, the defendant also swayed, struggled to maintain his

balance, and did not comply with the officer's instructions.

The officer asked the defendant about his educational

level, and the defendant stated that he had just completed his

second year of college. The officer instructed the defendant to

recite the alphabet. The defendant omitted the letters "I" and

"K" and repeated letters out of order, stating "Z, X, Y, W, X,

and Z." The officer then arrested the defendant. After

securing the defendant in his cruiser, the officer searched the

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defendant's car and found a partially burnt marijuana cigarette

and rolling papers.

The defense called one witness, Dr. Joanne Samson, a

toxicologist and physiologist with expertise on drugs, including

marijuana. Dr. Samson testified to the signs and symptoms of

intoxication by marijuana use and its effect in humans. Dr.

Samson also testified to what physical symptoms would be

observed on a person who was intoxicated by marijuana.

After the defendant was convicted and had served his

probationary period, he moved for new trial on the basis of

ineffective assistance of counsel. The defendant proffered

expert testimony about (1) the impact of his Spanish language

background on his alphabet recitation, and (2) the neurological

impact of fear on roadside assessments. Trial counsel averred

that he was unaware of either defense at the time of trial. The

judge concluded that the language expert's testimony could not

have explained the defendant's errant recitation of the

alphabet, as he had been schooled in the United States since

first grade and had completed two years of college. The judge

also concluded that the expert testimony regarding the

defendant's fear of the officer "would not have changed [his]

view in this case" and thus "would not have changed the result."

Discussion. We review the denial of a motion for new trial

"for a significant error of law or abuse of discretion."

4
Commonwealth v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022).

"Special deference" is given to the motion judge who, as was the

case here, was also the trial judge. Commonwealth v. Nieves,

429 Mass. 763, 771 (1999). To prevail on his motion for new

trial based on ineffective assistance of counsel, the defendant

must show that "there has been serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass.

89, 96 (1974), resulting in a substantial risk of a miscarriage

of justice. See Commonwealth v. Millien, 474 Mass. 417, 432

(2016). Trial counsel's performance also must have "likely

deprived the defendant of an otherwise available, substantial

ground of defence."3 Saferian, supra.

1. Alphabet recitation. In support of his motion for new

trial, the defendant offered expert testimony opining that the

defendant's errors reciting the alphabet could be attributed to

the defendant's Spanish language background rather than to

3 Because trial counsel was unaware of either defense at the
time of trial, he did not make a strategic decision to forego
the defenses, and we do not review for manifest
unreasonableness. See Commonwealth v. Yat Fung Ng, 489 Mass.
242, 250 (2022) ("Where a claim of ineffective assistance of
counsel is based on a tactical or strategic decision, the test
is whether the decision was manifestly unreasonable when made"
[quotation omitted]).

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intoxication. The defendant immigrated from the Dominican

Republic to the United States at the age of six and did not

attend kindergarten in the United States. His family spoke only

Spanish at home. The defendant attended school in the United

States from first grade through his second year of college and

spoke English fluently. The expert witness's affidavit stated

that someone whose first language is not English may not have

been taught to recite the alphabet in order, even if that person

becomes a fluent English speaker and attends college.

We do not discern an abuse of discretion in the denial of

the motion on this ground. The expert's testimony related to

how English language learners are taught English. The expert

stated that English language learners may have difficulty with

recall of the English alphabet even while speaking

"grammatically correct and unaccented English." She opined that

it would be "unsurprising" for an individual who came to the

United States from the Dominican Republic at age six, who missed

American prekindergarten and kindergarten, and who spoke only

Spanish at home to erroneously recite the alphabet. The

defendant's affidavit stated that he did not recall being taught

to memorize the order of the English alphabet, but the "judge

was not required to credit any claims . . . in the defendant's

self-serving affidavit." See Commonwealth v. Gilbert, 94 Mass.

App. Ct. 168, 178 (2018). Moreover, the defendant told the

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officer that he could recite the alphabet before attempting to

do so, and the judge found that credible.

Further, ample other evidence supported the defendant's

OUI-marijuana conviction. See Commonwealth v. Jewett, 471 Mass.

624, 636 (2015) (defendant exhibited "classic indicia of

impairment," including bloodshot eyes and crossing lane

markings). The officer testified that he saw and smelled

marijuana smoke and challenged the defendant's denial that there

was smoke in the car. The defendant admitted to having recently

smoked marijuana, and the officer discovered a partially burnt

marijuana cigarette in the defendant's car. The defendant did

not follow instructions during the roadside assessments. He

nearly fell on the ground while listening to the officer's

instructions.

2. Impact of defendant's fear on field sobriety

assessments. The defendant also offered an expert's affidavit

stating that the defendant's fear that the officer could harm

him "may have contributed to his lack of balance, his need for

repeated directions, his errors following those directions, and

other mistakes as he performed them." The Supreme Judicial

Court has recognized that, during a police stop, justified fear

"might lead an African-American male to be nervous or evasive in

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his dealings with police officers."4 Commonwealth v. Evelyn, 485

Mass. 691, 709 (2020). While being instructed on a roadside

assessment that he declined to undertake, the defendant

expressed his fear of closing his eyes while alone with the

officer late at night.

As the judge noted, expert testimony is not necessary to

support the contention that performance on a roadside assessment

"is often attributable at least in part to nervousness and

fear," and the judge was aware of that. The defendant did not,

as he contends, scrupulously comply with the officer's

directions to avoid an "overreact[ion]." Rather, the defendant

attempted to conceal the smell of marijuana by avoiding rolling

down his window, lying to the officer about the presence of

smoke, and brushing ash from his clothes. Once again,

significant evidence aside from the roadside assessments

supported the defendant's conviction, including driving errors,

the defendant's admission to smoking marijuana, the smoke in the

car and wafting from it, and the partially burnt marijuana

cigarette in the defendant's car. See Commonwealth v. Facella,

478 Mass. 393, 411 (2017) (failure to elicit evidence at trial

not ineffective assistance where there was "overwhelming

4 The defendant identifies as Hispanic but is perceived by
others as Black or African American.

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evidence of the defendant's guilt"). We discern no abuse of

discretion in denying the defendant's motion for a new trial

based on this ground.

3. Evidentiary hearing. Finally, the defendant asserts

that the judge erred by denying his request for an evidentiary

hearing on his motion for a new trial. We conclude that "[i]t

was not error for the judge who denied the motion for a new

trial also to deny the defendant an evidentiary hearing on that

motion; the defendant's submissions raised no substantial

issues." Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003).

Order denying motion for new
trial affirmed.

By the Court (Henry, Grant &
D'Angelo, JJ.5),

Clerk

Entered: October 7, 2024.

5 The panelists are listed in order of seniority.

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