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March 13, 2026 Get Citation Alerts Download PDF Add Note

Commonwealth v. Greg McCollum.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-1308

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.6K)

• PDF

Combined Opinion

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-1308

COMMONWEALTH

vs.

GREG MCCOLLUM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the District Court, a jury convicted

the defendant of operating a motor vehicle while under the

influence of intoxicating liquor (OUI) pursuant to G. L. c. 90,

§ 24 (1) (a) (1), and negligent operation of a motor vehicle

pursuant to G. L. c. 90, § 24 (2) (a). After waiving his right

to a jury trial on so much of the OUI charge alleging a second

offense, the defendant was convicted on the second or subsequent

portion of the OUI charge. The defendant appeals. We vacate

the judgments and set the verdicts and subsequent offense

finding aside.

Background. We summarize the undisputed facts. At

approximately 4:15 P.M. on August 10, 2018, the defendant was
driving when he rear-ended a car in front of him, causing a

four-car accident. The defendant "appeared to be slurring his

words," his eyes were "a little bloodshot and glassy," and he

had trouble standing. The responding police officer detected an

odor of alcohol coming from the defendant. A cold, unopened can

of beer was found underneath the bumper of the defendant's car.

A plastic bag containing a second cold can of beer and a nip of

whiskey was found underneath a van the defendant was leaning

against. At the scene of the accident, the defendant admitted

to drinking a beer at a restaurant at lunch. When the police

officer drove the defendant to the police station for booking,

the defendant admitted to consuming a twenty-five-ounce can of

beer.

Prior to trial, the Commonwealth filed a motion in limine

to admit the defendant's medical records. Defense counsel told

the judge that she and the prosecutor would discuss redactions

to the records. During the trial, the prosecutor moved to admit

exhibits in evidence. The judge asked, "Have both sides gotten

together on the documents?" Defense counsel confirmed having

gone through the medical records and the prosecutor confirmed

that "there have been proper redactions made" to them. The

medical records were admitted in evidence. After the jury

rendered their guilty verdicts, the judge met with the jury to

thank them and explained that they could stay and observe the

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next phase of the proceeding involving the subsequent offense.

One of the jurors told the judge that the jury were already

aware of the defendant's prior conviction and pointed to the

medical records. The top page of the medical records was the

summons directed to the keeper of the records and contained the

language "OUI/LIQUOR, 2nd OFFENSE."1 One of the jurors told the

judge that the jury "tried to put that out of [their] minds and

exclude that from [their] consideration." The judge then

informed counsel about the issue and, after discussing different

options, scheduled the case to another hearing date to allow

counsel time to brief the issue and allow defense counsel the

opportunity to file a motion for a required finding of not

guilty or a motion for a new trial.

At the hearing on July 6, 2023, the judge heard argument on

the defendant's motion for a new trial pursuant to Mass. R.

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The

defendant argued that he was entitled to a new trial because,

from the inadvertent admission of the reference in his medical

records, the jury knew that he was charged with OUI as a second

offense. The judge denied the motion in a written order,

finding that "the extraneous matter did not prejudice the

1 The judge found that "[t]he failure of the parties to
redact this language [was] unquestionably inadvertent."

3
defendant" in light of the "overwhelming collective strength of

the trial evidence."2

Discussion. The defendant argues that his trial counsel

was ineffective for allowing the defendant's medical records to

go to the jury without redacting the reference to the OUI second

offense charge. In assessing a claim of ineffective assistance

of counsel, we first review "whether 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). We then determine whether

counsel's shortcoming "likely deprived the defendant of an

otherwise available, substantial ground of defence." Id.

When a defendant proceeds to a bifurcated trial on a second

or subsequent OUI offense, during the first portion of the

trial, "no part of the complaint or indictment which alleges

that the crime charged is a second or subsequent offense shall

be read or shown to the jury or referred to in any manner."

G. L. c. 278, § 11A. When a defendant raises a claim of

2 The defendant also filed a motion for a mistrial on the
same grounds as the motion for a new trial. The judge denied
the motion orally, finding that, although the second or
subsequent portion of the OUI trial was pending, a mistrial on
the underlying OUI was not a "possible route" where the jury had
already entered its verdict. No issue is before us concerning
the judge's denial of either motion.

4
ineffective assistance of counsel for the first time on direct

appeal instead of in a motion for new trial, we will reverse the

conviction only if the ineffectiveness appears "indisputably on

the trial record." Commonwealth v. Medeiros, 456 Mass. 52, 61

(2010), quoting Commonwealth v. Zinser, 446 Mass. 807, 811

(2006). As the Commonwealth concedes, the failure of trial

counsel here to make sure the second offense language was

redacted from the medical records was clear error and one that

may be addressed on direct appeal because the error appears

indisputably on the record.

Under the second prong of Saferian, 366 Mass. at 96, we

review whether the defendant has met his burden to show there is

"a serious doubt whether the result of the trial might have been

different had the error not been made" (citation omitted).

Commonwealth v. Millien, 474 Mass. 417, 432 (2016) ("where

counsel was ineffective for failing to present an available

ground of defense, that defense is 'substantial' for Saferian

purposes where we have a serious doubt whether the jury verdict

would have been the same had the defense been presented").

We have previously held that violations of G. L. c. 278,

§ 11A, materially contributed to a substantial risk of a

miscarriage of justice requiring reversal. In Commonwealth v.

Gonsalves, 74 Mass. App. Ct. 910, 910 (2009), the judge learned

of the erroneous admission of the defendant's prior OUI

5
convictions during jury deliberations after the jury sent a note

to the judge asking about the prior offenses. Although the

judge in Gonsalves gave a curative instruction, the jury

returned a verdict of guilty five minutes later. Id. We

reasoned in Gonsalves that "the fact that the jury focused on

the information, and the timing of the verdict, le[ft] us

unconvinced that no harm resulted." Id. See Commonwealth v.

Williams, 19 Mass. App. Ct. 915, 916 (1984) (conviction on OUI

second offense reversed after judge mistakenly advised jury of

second offense allegation). Those concerns apply with at least

as much force here, where the jury told the judge that the prior

OUI was on their minds during the deliberation and there was no

opportunity for a curative instruction.

We disagree with the Commonwealth's contention that the

defendant was not unfairly prejudiced by the admission of the

inadmissible OUI second offense evidence because the case

against the defendant was strong. Although there was evidence

of the defendant's intoxication, it did "not rise to the level

of overwhelming evidence." Commonwealth v. Baez, 106 Mass. App.

Ct. 219, 224 (2025) (running red light and stepping off line

during "walk and turn" test, "[e]ven when combined with the

traditional indices of intoxication -- slurred speech, odor of

alcohol, admission to consuming three drinks earlier that night,

and bloodshot eyes -- . . . left the defendant with a defendable

6
case"). The defendant here admitted to drinking a beer at lunch

and a twenty-five-ounce can of beer at some other point, and the

car accident took place around 4:15 P.M. Furthermore, there was

no evidence of any failed field sobriety tests (FSTs). Contrast

Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 328-329 (2023)

(concerns of unfair prejudice diminished where evidence of

intoxication included defendant's bloodshot and glassy eyes,

unsteady walking, three failed FSTs, and car accident);

Commonwealth v. Gallagher, 91 Mass. App Ct. 385, 390-391 (2017)

(improper evidence not prejudicial where defendant failed to

follow instructions to park in designated parking space,

admitted to consuming three beers shortly before stop, and

failed to complete two out of three FSTs). We conclude the

evidence of the defendant's guilt was not so strong that we are

left "unconvinced that no harm resulted." Gonsalves, 74 Mass.

App. Ct. at 910. Ultimately, as to both the OUI conviction and

the negligent operation conviction, we are left with a "serious

doubt whether the jury verdict[s] would have been the same" had

proper redactions of the medical records been made.3 Millien,

474 Mass. at 432.

3 The defendant also argues that: (1) he was denied the
right to counsel; (2) trial counsel's failure to object to the
Commonwealth's eliciting the defendant's inculpatory statements
amounted to ineffective assistance of counsel; (3) the judge
erred in preventing his expert from explaining medical
terminology contained in the medical records; and (4) the

7
Accordingly, we vacate the judgments, set aside the

verdicts and the subsequent offense finding, and remand the case

to the District Court for further proceedings consistent with

this decision.4

Judgments vacated.

Verdicts and subsequent
offense finding set aside.

By the Court (Singh, Grant &
Tan, JJ.5),

Clerk

Entered: March 13, 2026.

Commonwealth gave an improper closing argument. In light of our
disposition, we need not and do not address these arguments.

4 Given there is no indication that the error here was due
to intentional prosecutorial misconduct, there are no double
jeopardy implications. See Pierre v. Commonwealth, 489 Mass.
28, 33-35 (2022).

5 The panelists are listed in order of seniority.

8