Opinion
No. 11–P–1178.
2012-07-17
COMMONWEALTH v. Elizabeth H. RATHBUN.
Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 905 (2010). The defendant made no such showing in this case, and the judge properly presumed that she was either represented by counsel or waived that right in the prior proceedings.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her conviction in District Court of operating under the influence of intoxicating liquor (OUI), fourth offense. On January 27, 2011, the defendant pleaded guilty to the substantive offense, and was found guilty after a bench trial of having three prior OUI convictions. She was sentenced to a two-year term in a house of correction, one year to be served with the balance suspended for two years, and her driver's license was suspended for ten years.
On appeal, the defendant challenges the admission of several exhibits introduced over objection at trial. She argues that (1) they were not certified or attested to, (2) their admission violated her confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, (3) certain documents contained hearsay, and (4) the documents reflecting her prior convictions did not show that she had waived counsel in the previous cases. We affirm.
Background. Two officers testified at the bench trial. The arresting officer testified that, upon stopping the defendant's vehicle, he learned the defendant's date of birth, her social security number, and that her full name was Elizabeth H. Rathbun. The second officer, who had administered a breathalyzer test, testified that she had ascertained the defendant's social security number and that the defendant's middle initial was “H.”
The Commonwealth introduced six documents in evidence: three certificates of conviction from Chatham, Troy, and Rensselaer, New York (Exhibits 1 through 3); a copy of the New York State penal statute regarding operating under the influence (Exhibit 4); a National Crime Information Center (NCIC) probation report (Exhibit 5); and a Massachusetts probation report (Exhibit 6). The defendant objected to the admission of these documents on the ground that they were not certified, attested copies. The judge admitted Exhibits 1 through 3 de bene.
The defendant filed a motion for a required finding of not guilty at the conclusion of the evidence, claiming that the evidence was insufficient to warrant a finding that she was the same individual named in the certificates of conviction, and that the Commonwealth had not met its burden of proving beyond a reasonable doubt that she was represented by counsel or had waived her right to counsel in the New York cases. The judge denied the motion and admitted Exhibits 1 through 3 in evidence. The judge stated:
“Absent a showing by the defendant that she was not represented in any of these prior proceedings in New York state and quoting [from] Commonwealth v. McMullin, [76 Mass.App.Ct. 904 (2010) ] the Commonwealth need not-due to the fact that the defendant has not made a showing that she was not represented in the cases that resulted in prior convictions, the Commonwealth need not come forward and prove that point.”
Discussion. 1. Admissibility of Exhibits 1, 2, 3, and 5. Contrary to the defendant's claims, Exhibits 1 through 3 were admissible under G.L. c. 90, § 24(4), as prima facie evidence of her prior convictions. Under that provision, “certified attested cop[ies] of original court papers” are admissible to establish “that a defendant has been convicted previously ... of a like offense [.]” G.L. c. 90, § 24(4). Exhibits 1 through 3 contain explicit certifications that the respective court records reflect a judgment of conviction for Elizabeth H. Waters and Elizabeth H. Smith, each with a date of birth identical to that of the defendant. “Under the statute, such documents are self-authenticating and admissible to prove the defendant's prior convictions without corroborating evidence or live testimony.” Commonwealth v. Gonsalves, 74 Mass.App.Ct. 910, 912 (2009). Moreover, “[c]ertified court records of conviction are admissible under a hearsay exception for business records under G.L. c. 233, §§ 76, 78.” Commonwealth v. Ellis, 79 Mass.App.Ct. 330, 332 (2011)(footnote omitted).
While the defendant argues that these records do not establish beyond a reasonable doubt that she was the defendant in those actions, “the conviction records ‘include more identifying information than merely the offender's name [.]’ “ Commonwealth v.. Dussault, 71 Mass.App.Ct. 542, 546 (2008), quoting from Commonwealth v. Maloney, 447 Mass. 577, 588 (2006). They include the defendant's middle initial and date of birth, and Exhibit 5, which also contains the defendant's social security number, and identifies Elizabeth H. Waters and Elizabeth H. Smith as names formerly used by the defendant. The Commonwealth therefore satisfied its burden of “produc[ing] evidence linking the person named in the conviction record to the defendant,” Maloney, supra, and the judge did not abuse his discretion in admitting in evidence, and relying upon, Exhibits 1 through 3 to establish the defendant's guilt as a subsequent offender.
The defendant also challenges the admissibility of Exhibit 5. Exhibit 5 contained the defendant's name, date of birth, social security number, a list of other names the defendant had used in the past, and arrest, arraignment, and disposition information regarding the three New York convictions. Exhibit 5 is a probation report, and “[p]robation records are records of the court system, and are by statute (G.L. c. 276, § 100) available for use by the courts of the Commonwealth.” Adoption of Irwin, 28 Mass.App.Ct. 41, 43 (1989), citing Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., 374 Mass. 640, 648 (1978). Although the information contained in Exhibit 5 originated from New York State courts rather than courts of this Commonwealth, the NCIC report “recorded primary facts rather than judgmental observations,” and was “admissible as [an] official written record[ ].” Id. at 43–44.
2. Whether the defendant was represented by counsel in the prior convictions. The defendant argues that the records of her prior convictions should not have been admitted because there was no evidence that she was represented by counsel or waived her right thereto in those proceedings. In Massachusetts,
“a defendant generally is presumed to have been represented by (or to have waived) counsel in prior proceedings that resulted in a conviction, and the Commonwealth need not come forward with proof on the point unless the defendant first makes a showing that the conviction was obtained without representation by or waiver of counsel.”
Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 905 (2010). The defendant made no such showing in this case, and the judge properly presumed that she was either represented by counsel or waived that right in the prior proceedings.
3. Remaining claims. We need not consider the defendant's further claims that the introduction of Exhibits 1, 2, 3, and 5 violated her confrontation rights or contained hearsay, as these claims were not raised below. See Commonwealth v. Sheehy, 412 Mass. 235, 237 n. 2 (1992). In any event, we have examined the claims and conclude that they do not constitute a substantial risk of a miscarriage of justice. Exhibit 5, introduced to demonstrate that the defendant in the instant action was the same individual convicted three times in New York, states that the identification data was last updated in 1998. It was not prepared for litigation, and it is not testimonial. Contrast Commonwealth v. Parenteau, 460 Mass. 1, 8 (2011) (registry of motor vehicles certificate prepared after criminal complaint issued, thereby making a factual representation that a particular action had been performed, is testimonial); Commonwealth v. Ellis, 79 Mass.App.Ct. at 333–334 (probation record prepared in anticipation of litigation, thus rendering writer's deliberative process testimonial). Similarly, certified records of the defendant's prior convictions are not testimonial, see Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5–7 (2010), and their admission did not violate the defendant's confrontation rights. McMullin, supra at 904.
Judgment affirmed.