Opinion
14-P-19
09-04-2015
COMMONWEALTH v. PIPPIN N. ROSS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Pippin N. Ross, appeals from her convictions of operating a motor vehicle under the influence of intoxicating liquor (OUI), fifth offense, pursuant to G. L. c. 90, § 24(1)(a)(1), and of operating a motor vehicle while under the influence of intoxicating liquor while her license was suspended or revoked for operating a motor vehicle while under the influence of intoxicating liquor pursuant, to G. L. c. 90, § 23 (hereinafter the OAS for OUI charge). She asserts on appeal that there were various evidentiary errors in the first phase of her bifurcated trial and procedural errors in the second phase of that trial.
Background. During the first phase of the defendant's bifurcated trial, the judge, sitting as fact finder, could have found the following. In the afternoon of February 28, 2012, the defendant was driving in Barnstable on a portion of a road under construction. A man working at the construction site testified that he saw the defendant crash into a parked construction vehicle. He called the police, who arrived at the scene approximately ten to fifteen minutes later. When a police officer arrived, he asked the defendant for her license, to which she replied, "I don't have one, it's no good." The officer then continued his interview and investigation and ultimately placed the defendant under arrest for OUI. A subsequent search of the defendant's vehicle uncovered various wine bottles, some empty, others full. At trial, the defendant testified that she suffered from seizures, which accounted for her appearance and actions during the time leading to her arrest.
The judge bifurcated the trial as to both of the charges against the defendant. During the first phase of the trial, the judge heard testimony about the events leading up to the defendant's arrest and received records of the Registry of Motor Vehicles (RMV) documents in evidence. He thereafter found the defendant guilty of both OUI and operating with a suspended or revoked license. During the second trial, the defendant stipulated to all of the evidence, and the judge found the defendant guilty of OUI, fifth offense, and found that the defendant's license was revoked for a previous OUI conviction.
Discussion. OAS for OUI charge. The defendant asserts that defense counsel's stipulation to the Commonwealth's documentary evidence of her prior convictions and license suspension or revocation for OUI during the second phase of the trial amounted to a guilty plea and required waiver. "In examining the validity of the defendant's claim that this proceeding was nothing more than a de facto guilty plea, we must determine 'whether the defendant effectively stipulated to the truth of facts which constituted all the elements of the offense charged and were conclusive of guilt or whether he simply stipulated that the Commonwealth's witnesses would testify in the manner asserted by the prosecutor. If [he] did nothing more than stipulate as to evidence which warranted, but did not require, [a] finding[] of guilty, he is not to be taken as having pleaded guilty.'" Commonwealth v. Abrams, 44 Mass. App. Ct. 584, 587 (1998), quoting from Commonwealth v. Garcia, 23 Mass. App. Ct. 259, 265 (1986). See Commonwealth v. Lewis, 399 Mass. 761 (1987).
Here, defense counsel stipulated to the truth of the documents both during a pretrial bench conference and during the trial. The judge then found the defendant guilty and sentenced her on both offenses. Based on this record, defense counsel stipulated "to the truth of facts which constituted all the elements of the offense charged." Abrams, supra. The stipulation amounted to a de facto guilty plea, as the Commonwealth never presented any evidence, documentary or otherwise, for the judge to consider. Cf. Commonwealth v. Babcock, 25 Mass. App. Ct. 688, 690 (1988). By pleading guilty, a defendant waives important Constitutional rights and such a waiver must be knowing and voluntary. Commonwealth v. Robbins, 431 Mass. 442, 444 (2000). On this record, we cannot say that the plea was knowing and voluntary.
The judge and the parties engaged in the following colloquy:
Defense counsel: "Your Honor, at this point, I have had a chance to review them. I am satisfied, your Honor, that the Commonwealth can show that there were at least four prior convictions for OUI, your Honor. And we -- therefore, we would or I would on behalf of my client waive and stipulate -- "
The court: "All right. There is a further phase as to the reason for the suspension on the other charge?"
Defense counsel: "The suspension was a lifetime suspension. And it indicates in the documents that, in fact, that suspension was for multiple OUIs, your Honor.
The court: "All right. Mr. Clerk, please set her to the bar."
". . ."
The court: "Commonwealth, you provided [defense counsel] with the appropriate documents?"
Commonwealth: "Yes, your Honor."
The court: "[Defense Counsel], is it your position that you are stipulating to the facts?"
Defense counsel: "Yes, your Honor."
Further, the Commonwealth was required to prove the reason for the defendant's license suspension or revocation to support her conviction on the OAS for OUI charge. See Commonwealth v. Lopes, 85 Mass. App. Ct. 341, 348 (2014). As the Commonwealth only addressed that portion of the case during the second phase of the trial, the Commonwealth cannot support its burden of proof as to that element of the charge.
Accordingly, we vacate that portion of the judgment on the OUI indictment finding the defendant guilty of a subsequent offense, and her conviction of OAS for OUI.
Based on this result, we decline to address the defendant's asserted errors as to her counsel's closing argument during the first phase of the trial and as to the jury waiver for the second phase of the trial.
OUI trial. Admission of RMV records. The defendant first asserts error in the admission of the RMV records in the first phase of the trial. She challenges the admissibility of the RMV records as violating of her Sixth Amendment to the United States Constitution confrontation rights under Commonwealth v. Parenteau, 460 Mass. 1 (2011). Because defense counsel did not object to the admission of the records, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Reeder, 73 Mass. App. Ct. 750, 757 (2009). The RMV records were admitted at trial as an RMV business record, and indicate that the defendant's license was suspended or revoked in 2005. To be admissible as a business record at trial to prove that the defendant received notice of the license revocation, the RMV records must also contain "a contemporaneous business record showing that the notice was mailed on that date." Parenteau, 460 Mass. at 10. Here, that requirement was not met, as such a contemporaneous record was required at the time of the defendant's license revocation. However, the judge also heard testimony from the arresting officer that the defendant admitted to him during the stop that her license was "no good." Given this independent evidence that the defendant was on notice of her license suspension, we cannot say that admission of the RMV records created a substantial risk of a miscarriage of justice.
Field sobriety tests. The defendant contends that evidence of her refusal to submit to field sobriety tests was improperly admitted in evidence in violation of her right against self-incrimination. Testimony of the defendant's refusal violated her right against self-incrimination if improperly elicited by the Commonwealth. Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995). The testimony in question was elicited by defense counsel on cross-examination. To the extent that the defendant challenges the testimony elicited during the Commonwealth's redirect examination, the testimony was nearly identical to that elicited on cross-examination and was proper given that the defendant opened the door to the questioning. Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2011). There was no error.
To the extent that the defendant asserts ineffective assistance of counsel, the record on appeal is insufficient to evaluate the claim and we therefore decline to address it. In any event, such an argument is more properly addressed in a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810-813 (2006).
On the indictment charging the defendant with operating under the influence of intoxicating liquor, fifth offense, so much of the judgment as finds the defendant guilty of the subsequent offense portion of the charge is vacated and the finding is set aside. On the indictment charging the defendant with operating a motor vehicle under the influence of intoxicating liquor following the revocation of her license for operating under the influence, the judgment is vacated and the finding is set aside. The matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 4, 2015.