Motor vehicles – OUI – Effectiveness of counsel

Where a defendant was convicted of operating a motor vehicle while under the influence of liquor and negligent operation of a motor vehicle, the judgments must be vacated given that the commonwealth has conceded that the defendant was denied the effective assistance of counsel and that it was error not to admit third-party culprit evidence.

“The defendant claims that there was insufficient evidence that he operated the motor vehicle in question, requiring his conviction to be reversed. We disagree. …

“The defendant also claims that the judge should have allowed the defendant’s motion to admit third-party culprit evidence. The Commonwealth concedes the issue, and we accept the concession.

“The evidence the defendant sought to admit were statements made in the video footage of the defendant’s companion’s booking process (booking video) which the defendant claims showed that his companion drove the car. However, the judge excluded it as hearsay and found that its admission would ‘unnecessarily confuse the jury, and that its probative value [was] outweighed by the undue prejudice.’ However, hearsay may permissibly form the basis of third-party culprit evidence as long as ‘the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other “substantial connecting links” to the crime.’ Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009), quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004). To the extent the judge excluded the booking video merely because it was hearsay, it was error. Also, given the defense was that the defendant was not the operator, the evidence was relevant, had substantial probative value, and was not likely to confuse the jury. …

“Finally, the defendant claims he was denied the effective assistance of counsel where counsel failed to object to the officer’s opinion testimony, and introduced the police report which stated that the defendant was the operator. Again, the Commonwealth concedes error, and we accept the concession.

“The opinion testimony was admitted without a proper foundation at least as to how the officer’s opinion was based on his perception, given that he did not see the defendant driving the car. … Moreover, it included embedded hearsay statements of other officers. Finally, the police report, even if properly admitted, was offered by defense counsel to show that the defendant’s companion was the operator, but plainly states that the defendant was the operator. …

“The judgments are vacated, the verdicts are set aside, as is the finding that the defendant had committed a third OUI offense, and the case is remanded to the District Court to allow for a new trial if the Commonwealth wishes to seek one.”

Commonwealth v. Drake (Lawyers Weekly No. 81-056-26) (6 pages) (Docket No. 25-P-401) (June 2, 2026).

Click here to read the full text of the opinion.