Opinion
13-P-1956
11-07-2014
COMMONWEALTH v. BRIAN S. LANGEVIN
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
The defendant, Brian S.Langevin, pleaded guilty to operating a motor vehicle under the influence (OUI). After a separate bench trial, the judge found this was the defendant's third OUI offense. At the bench trial, the Commonwealth's only witness was the patrolman who arrested the defendant. The patrolman testified that the defendant said he "had been previously convicted of two OUI first offenses" during the booking process. The Commonwealth also moved to admit the defendant's Registry of Motor Vehicles (RMV) record and two criminal dockets concerning the prior OUI offenses. The RMV record and the criminal dockets were admitted over the defendant's objections, which the defendant argues was error.
Discussion. RMV Record. Relying on Commonwealth v. Parenteau, 460 Mass. 1 (2011), the defendant argues that the admission of his RMV record without a witness from the RMV violated his right to confrontation. This argument misconstrues Parenteau. In that case, the Commonwealth had to prove that the defendant had been notified that his license was revoked. See id. at 5. The RMV certificate in Parenteau "did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed -- i.e., notice had been mailed on a specified date." Id. at 8. The defendant's constitutional confrontation clause rights were violated because the Commonwealth was relying on this out-of-court statement made in the certificate, which was created for trial, to prove a necessary fact. See id. at 8-9.
In contrast, here, the RMV records had a certification that the copies were true and accurate but the factual representations that were relevant to the proceeding were contained in the records themselves. The record included two notices concerning suspending/revoking the defendant's license. Each notice stated that the suspension/revocation was due to the two prior OUI offenses. The record also included the defendant's driving history. The notices and the driving history are both nontestimonial business records. See id. at 10 ("We agree with the Commonwealth that the actual notice of the defendant's license revocation, . . . constitutes a business record of the registry, created and kept in the ordinary course of its affairs"); Commonwealth v. Bigley, 85 Mass. App. Ct. 507, 516 (2014), quoting from Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 335 (2011) (admission of an RMV record was not a violation of the defendant's confrontation clause rights because "there is no Melendez-Diaz error in the admission of RMV records 'kept in the ordinary course of business.' . . . The fact that the records were requested in anticipation of trial is irrelevant, as they were 'maintained independent of any prosecutorial purpose'"). As a result, admitting these documents did not violate the defendant's confrontation clause rights and the documents could be used as prima facie evidence that the defendant had previously been convicted of two OUI offenses. See G. L. c. 90, § 24(1)(c)(4), as amended by St. 2005, c. 122, § 6A ("[I]ntroduction into evidence of a prior conviction . . . by . . . certified attested copies of the defendant's biographical and informational data from records of . . . the registry, shall be prima facie evidence that the defendant before the court had been convicted previously").
Copies of defendant's prior convictions. Both parties agree it was error to admit the copies of the two criminal dockets because neither docket was properly attested. See Commonwealth v. Deramo, 436 Mass. 40, 48-49 (2002). "Because the error was preserved, we must determine whether the error was nonprejudicial." Id. at 49, citing Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 522 U.S. 1007 (1998). The docket sheets provided cumulative evidence of the same information contained in the defendant's RMV record and the defendant's admission, which provided uncontradicted evidence that this was the defendant's third offense. This error was not prejudicial.
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 7, 2014.