Commonwealth v. Jolivet

Full title: COMMONWEALTH v. PAUL M. JOLIVET.

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Nov 23, 2011

10-P-1309 (Mass. Nov. 23, 2011)

Opinion

10-P-1309

11-23-2011

COMMONWEALTH v. PAUL M. JOLIVET.

Green

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

At a one-day jury trial in District Court on September 30, 2009, the defendant was convicted of operating a motor vehicle under the influence of intoxicating liquors in violation of G. L. c. 90, § 24(1)(a)(1), and negligent operation of a motor vehicle in violation of G. L. c. 90, § 24(2)(a). In an effort to provide an alternative explanation for the defendant's inability to properly perform the field sobriety tests, the defendant attempted to introduce two letters from his treating physician that described his multiple sclerosis (MS) symptoms. One letter was dated November 11, 2008, and the other was dated September 28, 2009. The judge excluded these letters but admitted thirty pages of medical records documenting the defendant's treatment for MS and his symptoms. On appeal, the defendant argues that the trial judge erred by excluding the doctor's letters, prejudicing the defense.

Discussion. The Commonwealth correctly acknowledges that these letters could have been admitted under a hearsay exception codified in G. L. c. 233, § 79G, if the defense had complied with the following procedural requirements:

'[I]n order for such a medical report to be admissible in evidence at trial, § 79G mandates that certain requirements be met, namely that (1) written notice of the intention to offer the report in evidence, along with a copy of the report, must be served on the opposing party or his attorney by certified mail, return receipt requested, not less than ten days before the introduction of the report; (2) an affidavit of such notice and the return receipt must be filed with the

forthwith after the return receipt is received; and (3) the report must be subscribed and sworn to under the penalties of perjury by the physician.'

Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 799 n.2 (2001), quoting from Knight v. Maersk Container Serv. Co., 49 Mass. App. Ct. 254, 255 (2000). In short, failure to comply with any of the statutory procedural requirements will bar introduction of the report.

Here the defendant was not entitled to the admission of the letters. First, neither letter was signed under the penalties and pains of perjury as specified in the third requirement. Furthermore, no attestation was later obtained and affixed to the report. See Knight v. Maersk Container Serv. Co., supra at 256. The failure to comply with the third requirement set forth in Schutte alone supports the judge's decision to exclude the letters. Second, because the September 28, 2009, letter was dated only two days before trial, the defendant could not have complied with the ten-day notice requirement with respect to that letter. Although the November 11, 2008, letter was written more than ten days before its attempted introduction, there is no evidence that written notice, along with a copy of the report, was served to the opposing party not less than ten days before trial.

Finally, we note that counsel did not object to the judge's exclusion of the letters, and there was no substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 296 (2002). The Commonwealth introduced strong proof that the defendant had been under the influence of alcohol. Moreover, the evidence showed that the defendant was unable to obey the police officer's instructions (including an inability to successfully recite the alphabet), which would not have been affected by MS. In the end, the jury, which had an opportunity to consider the defendant's testimony and medical records, determined that his defense was not credible.

Judgments affirmed.

By the Court (Green, Katzmann & Hanlon, JJ.), Clerk