COMMONWEALTH vs. TALBERT W. SWAN.

GREENBERG, J. Convicted by a jury of six in the District Court of larceny of property over $250 (G. L. c. 266, Section 30), [Note 1] the defendant's appeal is based on the ground that he was denied effective assistance of counsel. We agree with the defendant and reverse.

While most of the facts as to the events leading up to the issuance of the complaint against the defendant are not in

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dispute, a few crucial ones are. The defendant's case included his own testimony that on September 27, 1989, he called the Spartan Brake and Muffler Shop (Spartan) to check the price for a brake repair. He told an unidentified employee of Spartan that another shop had given him an estimate of $828, which was too high. Then, according to the defendant, the Spartan employee told him in the same conversation that they could perform the repair for half the price. As a result, that day the defendant had his car towed to Spartan from the other repair shop. The defendant also testified that, in a second telephone conversation later the same day, another employee, Daniel Sheehan, told him that the repair would cost over $800. In response, the defendant testified he refused permission to make the repair and said he would pick the car up after work.

No written estimate was offered in evidence. In his testimony, the owner of Spartan, Thomas Counos, admitted he never obtained a written authorization to perform the repairs. Sheehan, the employee of Spartan who performed the repairs, testified, however, that he had explained the work that had to be done when the defendant brought the car in, and he gave a written estimate of $810, which the defendant orally approved. On that point, the defendant's testimony sharply differed: he told the jury that when he left his car at the shop he was given no estimate of any kind.

When the defendant arrived back at Spartan in the late afternoon to pick up his car, the repair had been done, and Counos demanded $810 to release the car. The defendant gave him a check for the full amount, but Cuonos refused to release the car at that time. The next day, after telephoning the defendant's bank to confirm that there were sufficient funds to cover the check, Counos surrendered the car to him. Later, after discussing the situation with his wife, the defendant put a stop payment order on the check. After a failed attempt to collect the money, Counos sought and ultimately obtained a criminal complaint from the District Court.

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For the defendant to prevail on his claim of ineffective assistance of counsel, we must find that "there was an error in the course of the trial (by defense counsel . . .) and . . . that [the] error was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682 (1992). Put another way, the question is whether counsel's conduct in the case "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See also Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (requiring "showing that better work might have accomplished something material for the defense"). In cases where tactical or strategic decisions of defense counsel are at issue, we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).

Automobile repair shops are subject to regulations adopted by the Attorney General under authority of G. L. c. 93A. Those regulations are reproduced in the margin. [Note 2] It appears

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from the regulatory scheme that failure to secure a customer's written authorization before undertaking automobile repair work may amount to an unfair or deceptive practice. If, under the third paragraph of the regulation, the repair shop is unable to obtain written permission, it must notify the customer prior to starting the work of the nature and cost of the needed repairs, and the fifth paragraph of the regulation requires the repair shop to maintain written records containing specific information about any verbal authorization received from a customer.

Counsel decided at the outset to use Spartan's alleged violation of the regulations as an essential part of the defense. In his opening speech to the jury, he stated that "[t]here is a question about whether that work [on his car] was authorized or not. The evidence will show, as is mandated by the Attorney General's regulations, that [the defendant] never authorized that work to be done. That, in essence, is what you're going to be deciding today." It is also clear from the questions posed by the defense counsel during his cross-examination of Counos and Sheehan that he was trying to establish that various provisions of the regulations were violated. For example, in the course of questioning Counos, defense counsel began to ask him about his knowledge of the regulations. The prosecutor objected, and the judge sustained the objection. Defense counsel made no attempt to explain their relevance. Nor did he make an offer of proof in the form of a certified copy of the regulations.

Rebuffed at this early stage of the trial, defense counsel abandoned the matter altogether. He failed to develop this defense at any later stage; nor did he request that the judge, who under G. L. c. 30A, Section 6, could take judicial notice of State regulations (see Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 772 n.12 [1980]; Flanagan, Trial Practice

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Section 205 [1993]), to instruct the jury as to automobile shop regulations.

We cannot explain away defense counsel's lapse as a tactical decision. Contrast Commonwealth v. Sielicki, 391 Mass. 377, 379 (1984); Breese v. Commonwealth, 415 Mass. 249, 251 (1993). Defense counsel should have introduced the regulations in evidence. If the jury found that Spartan failed to comply with the regulations, it would have seriously weakened the government's contention that the defendant was obligated to pay for the repairs. This applies to both possible theories of larceny in the case. The defendant could not be convicted of larceny of the money owed to Spartan if Spartan had no legal right to charge for the repairs. Nor could the defendant be convicted of larceny of the vehicle in violation of Spartan's garage keeper's lien, G. L. c. 255, Section 25. See Doody v. Collins, 223 Mass. 332 (1916). That statute only permits a lien for "proper charges due . . . [for the] storage and care" of the automobile. Id. at 334. Because the regulations provide that it is an unfair or deceptive act or practice to "charge a customer for any [unauthorized] repairs," the jury could have found that there were no "proper charges" triggering the lien. [Note 3] In the circumstances of this case, defense counsel's error was "so flagrant that [we] can conclude that it resulted from neglect or ignorance rather than from informed, professional deliberation." Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir. 1977). [Note 4]

So long as the jury were kept in the dark concerning the requirements contained in the regulations, it increased the likelihood of an erroneous result in the trial. "In general,

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failure to act is not a basis for finding ineffective assistance of counsel," Commonwealth v. Frisano, 21 Mass. App. Ct. 551, 555 (1986), but in this case defense counsel presented a defense of justification for the defendant's actions in his opening statement. That defense was never developed, a gaffe that amounted to ineffective assistance of counsel. [Note 5]

Judgment reversed.

Verdict set aside.