Opinion
21-P-449
06-23-2022
COMMONWEALTH v. MATTHEW J. LEAL.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was found guilty of operating under the influence (OUI) 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 a subsequent jury-waived trial, the same judge who presided over the jury trial found the defendant guilty of the subsequent offense portion of the complaint charging OUI, third offense. On appeal, the defendant claims: (1) there was insufficient evidence to support the defendant's conviction of negligent operation of a motor vehicle; (2) the denial of the defendant's motion in limine was an abuse of discretion where the Registry of Motor Vehicles (RMV) records were neither timely disclosed, nor properly certified and attested to; and (3) the Commonwealth failed to introduce any evidence of the defendant's OUI conviction from the previous day's jury trial, to support the subsequent offense portion of the OUI, third offense, charge. We affirm.
The defendant was also charged with, but found not responsible for, two civil infractions: (1) a marked lane violation pursuant to G. L. c. 89, § 4A, and (2) possession of an open alcoholic beverage in a motor vehicle in violation of G. L. c. 90, § 241 (b).
Discussion.
1. Sufficiency of the evidence.
The defendant argues that the judge erred in denying his motion for a required finding of not guilty where there was insufficient evidence to support his conviction for negligent operation of a motor vehicle. We disagree.
"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether It believes that the evidence at the trial established guilt beyond a reasonable doubt.' .... Rather, the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979)."Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009).
When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass. at 677-678. In order to prove a defendant guilty of negligent operation, the Commonwealth must demonstrate that he: (1) operated a motor vehicle, (2) on a public way, and (3) operated "negligently so that the lives or safety of the public might be endangered." G. L. c. 90, § 24 (2) (a.) . See Commonwealth v. Duffy, 62 Mass.App.Ct. 921, 921 (2004).
The defendant does not challenge the evidence supporting the first two elements, but claims only that it was insufficient as to the third. In particular, the defendant argues that the Commonwealth failed to introduce any direct evidence of his negligent operation of the vehicle. However, "[p]roof of [the defendant's negligent] operation of a motor vehicle may 'rest entirely on circumstantial evidence.'" Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), quoting Commonwealth v. Cromwell, 56 Mass.App.Ct. 436, 438 (2002).
Here, on the arrival of police officers to the scene of the accident, the defendant was found sitting in the driver's seat of his vehicle, smoking a cigarette. When asked to step out of the vehicle, the defendant was unsteady on his feet; he was slow-moving; he had slurred speech; and he maintained poor eye contact with the officers. The defendant performed poorly on the assessments conducted at the scene of the crash, and when asked by officers if he had been drinking that evening, the defendant responded that he had consumed only two beers, but pronounced the word "beers" as "beerj." Furthermore, following his arrest, the officers inventoried the contents of the defendant's vehicle, and found bags containing beers, as well as six or seven small bottles of liquor, behind the passenger front seat. According to the testimony of the officer, some of the containers were empty, while others were full and cold to the touch. See Commonwealth v. Ross, 92 Mass.App.Ct. 377, 380 (2017) (evidence of defendant's consumption of alcohol was relevant to whether defendant exercised reasonable care while driving).
Furthermore, contrary to the defendant's claim, where the defendant was involved in a serious head-on collision, in which both his vehicle and the other driver's vehicle each suffered substantial damage to their respective front ends, this is not a case in which mere evidence of operation under the influence alone was used to support the defendant's conviction of negligent operation of a motor vehicle. See Commonwealth v. Woods, 414 Mass. 343, 344-345, cert, denied, 510 U.S. 815 (1993). Contrast Commonwealth v. Zagwyn, 482 Mass. 1020, 1022 (2019) ("evidence of a broken headlight and a broken license plate light, even when coupled with proof of intoxication is insufficient" by itself to support conviction of negligent operation). Instead, the defendant admitted that the crash, which occurred while it was still daylight, on a day where there were dry, clear driving conditions, was caused by his "losing control" of his truck, due to what the defendant claimed was an issue with the truck's rear end. When viewed in the light most favorable to the Commonwealth, the defendant's admission to "losing control" of his vehicle, causing a serious head-on collision, coupled with the substantial evidence of intoxication, was sufficient to support the defendant's conviction for negligent operation of a motor vehicle. See Commonwealth v. Teixeira, 95 Mass.App.Ct. 367, 369 (2019) (inferences that support conviction "need only be reasonable and possible; [they] need not be necessary or inescapable" [citation omitted]). The motion for a required finding of not guilty was properly denied.
2. RMV records.
"We review the judge's ruling on the defendant's motion in limine for an abuse of discretion." Commonwealth v. Whitson, 97 Mass.App.Ct. 798, 805 (2020). The defendant claims that the judge abused her discretion in denying his motion in limine where the RMV records, which were used as proof of the defendant's prior OUI convictions, were neither timely disclosed, nor possessed the proper certification and attestation. We disagree.
Where the defendant was not provided with copies of the RMV records until the morning of the first day of trial, the records were not timely disclosed. See Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005). "Where the Commonwealth has delayed in disclosing evidence prior to trial, our principal concern is whether the defendant has been prejudiced by the delay," absent any showing of bad faith. See Commonwealth v. Stote, 433 Mass. 19, 22 (2000).
The defendant focuses only on the issue of prejudice, and has not demonstrated that the failure to disclose the RMV records was the result of the Commonwealth's bad faith.
Here, the Commonwealth introduced the RMV records to demonstrate that the defendant had changed his name from "Matthew Hodges" to "Matthew Leal." The defendant, in overly conclusory fashion, claims he was prejudicially surprised by the introduction of such documents, where without the delay, he could have done further research on the prior convictions to determine if there was any name change on file to suggest the defendant previously changed his name from "Matthew Hodges" to "Matthew Leal." The defendant made no claim, however, that he intended to rely on a defense of mistaken identity at trial. Cf. Commonwealth v. Eneh, 76 Mass.App.Ct. 672, 677, 682 (2010) (defendant prejudiced by late delay where unexpected evidence materially hurt sole theory of defense). The defendant knew he was being charged with OUI, third offense, as a subsequent offender in violation of G. L. c. 90, § 24 (1) (a) (1). Thus, it should not have surprised the defendant that the Commonwealth would seek to introduce evidence of his two prior convictions for OUI, even where such convictions were under a different surname. See Stote, 433 Mass. at 23 (defendant failed to demonstrate how trial tactics would have changed had chemical report been disclosed earlier by Commonwealth). Contrast Eneh, 76 Mass.App.Ct. at 677 (defendant suffered "trial by ambush" where Commonwealth did not timely disclose bank records that showed defendant, who previously claimed to be homeless in opening statements, actually possessed large sum of money, essentially eviscerating intended entrapment defense against drug trafficking charges). Moreover, the defendant did not, in the alternative, seek a continuance with the court on the denial of his motion in limine, which further suggests a lack of prejudice. See Commonwealth v. Emerson, 430 Mass. 378, 382 (1999), cert, denied, 529 U.S. 1030 (2000). At bottom, where much of the defendant's argument takes issue not with the effect of the Commonwealth's late disclosure of the RMV records, but rather with the impact of the records themselves, we discern no prejudice and no abuse of discretion. See Stote, supra ("it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence" [citation omitted]).
The defendant also claims that his counsel could have done further research on whether there were any booking photos from those earlier convictions that could be compared to the booking photo of the defendant from the present case. Where the defendant himself would almost certainly be aware of both any previous OUI convictions that he may have had, as well as any name change, he may have previously executed with the RMV, we doubt that the defendant was truly "surprised" by the Commonwealth's ultimate disclosure of the RMV records. Nonetheless, we emphasize the considerable discretion awarded to the judge when confronted with the Commonwealth's failure to comply with discovery obligations. See Commonwealth v. Lavin, 94 Mass.App.Ct. 353, 361 (2018).
The defendant also did not seek a continuance later when the motion in limine for lack of proper certification and attestation was denied.
The defendant also claims that the judge abused her discretion in denying the motion in limine to exclude the RMV records for lack of proper attestation. We disagree.
"Under G. L. c. 233, § 76, as under G. L. c. 90, § 30, . . . authentication of a copy of an official record requires that the officer in charge of keeping the original record 'attest' to the authenticity of the copy." Commonwealth v. Deramo, 436 Mass. 40, 47 (2002). Thus, to qualify for admissibility, copies of RMV records must "attest" to their authenticity, such that there is a written and signed certification that the document is a correct copy. See Id. In Deramo, the Supreme Judicial Court held that where RMV records bore a copy of an attestation, rather than an original mark, the attestation was insufficient and the records were inadmissible. See id. at 45-46, 48-49.
Here, the RMV records did bear an original attestation. However, the defendant's driving history contained an attestation only on the first page, and the defendant's demographic information bore a certification on only the back of each page. Contrary to the defendant's argument, such attestation is sufficient to meet the requirements of G. L. c. 90, § 30, and G. L. c. 233, § 76. See Deramo, 436 Mass. at 48 ("The cover page of a stack of copied records may bear an original attestation"). Nothing in Deramo states that every page of the RMV records must be attested to and stamped by the registrar, nor does it stand for the proposition that an attestation on the back of the records renders the attestation insufficient. See Commonwealth v. Martinez-Guzman, 76 Mass.App.Ct. 167, 171 (2010) ("the court in Deramo did not elaborate on the requirements of the actual mark of attestation, other than to note that it must be a 'written and signed certification that it is a correct copy'" [citation omitted]). Rather, Deramo stands only for the proposition that an attestation as to the authenticity of RMV records must be an original attestation, not a copy. See 436 Mass. at 45-46, 48-49. See also Martinez-Guzman, supra (analysis of whether record's attestation is sufficient focuses on whether purpose and substantive component of attestation requirement are met, rather than any particulars of signature itself). Thus, where the RMV records possessed a sufficient original attestation and certification as to their authenticity, we find no error in the denial of the defendant's motion in limine.
The defendant's driving history contained an original attestation on only the first page. However, we note that the records are clearly a single stack of copied records, as the pages are labelled as "Page 1 of 6," "Page 2 of 6," "Page 3 of 6," and "Page 4 of 6."
3. Judicial notice of subsequent offense.
Finally, the defendant argues that the Commonwealth failed to introduce any evidence of the defendant's OUI conviction from the jury trial that took place the previous day, rendering the evidence insufficient as to the subsequent offense portion of the OUI, third offense, conviction. We disagree.
Pursuant to G. L. c. 278, § 11A, the defendant was entitled to a separate trial for the subsequent offense portion of the OUI, third offense, charge. The defendant waived his right to a jury in the second trial, and thus the judge, who presided over the jury trial on the previous day, assumed the role of fact finder. See Commonwealth v. Garvey, 99 Mass.App.Ct. 139, 143 (2021). The defendant argues that where the judge relied solely on the jury's guilty verdict from the trial on the previous day, she took improper "judicial notice" of the defendant's most recent OUI conviction. See Commonwealth v. 0'Brien, 423 Mass. 841, 848-849 (1996) ("A judge may not take judicial notice of facts or evidence brought out at a prior hearing that are not also admitted in evidence at the current hearing").
However, the defendant's argument mischaracterizes the very use of separate trials, pursuant to G. L. c. 278, § 11A, for charges involving more serious punishments for subsequent offenses. During the second trial, the jury, or in this case the judge, is instructed to treat the most recent underlying offense as "undisputed and proved." Instruction 2.540 of the Criminal Model Jury Instructions for Use in the District Court (2009). The fact finder's only inquiry in the subsequent trial is "whether the Commonwealth has proved the charge that this was a subsequent offense." Id. See G. L. c. 278, § 11A. Accordingly, the judge committed no error in treating the underlying OUI conviction as being undisputed and proven, when finding the defendant guilty of the subsequent offense portion of the OUI, third offense, charge.
We presume the judge correctly instructed herself on the manner in which she was to consider the evidence in her role as fact finder. See Garvey, 99 Mass.App.Ct. at 143.
Judgments affirmed.
The panelists are listed in order of seniority.