Opinion
13-P-1759
05-08-2015
COMMONWEALTH v. ROBERT ALDRICH.
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, Robert Aldrich, was indicted and tried on a charge of unarmed burglary. The defendant moved pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), to "vacate and set aside" his conviction, averring that he was unlawfully convicted of an uncharged offense because, he claims, according to the transcript of the proceedings, the jury returned a verdict of guilty of "armed burglary" rather than "unarmed burglary." The Commonwealth filed a motion to correct the record pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 934 (1979). The trial judge held a hearing, allowed the Commonwealth's motion to correct the record, and denied the defendant's motion to vacate the conviction. The defendant contends that the judge erred in correcting the record and, further, that the ruling violates his right to due process because he was convicted of an uncharged offense. We affirm.
The defendant was also convicted of two counts of larceny over $250, attempt to commit larceny, and of being a habitual offender in relation to the unarmed burglary, larceny, and attempt charges. The verdict of guilty as a habitual offender on the attempt charge was vacated by the judge. The defendant was acquitted of possession of burglarious tools. A required finding of not guilty was entered on an indictment for resisting arrest, and charges of malicious destruction of property and furnishing a false name were dismissed.
Discussion. "Under Mass.R.A.P. 8(e), if the record does not 'truly disclose[] what occurred in the lower court,' a party may move to correct the record 'to conform to the truth.'" Commonwealth v. Denehy, 466 Mass. 723, 726 (2014) (Denehy), quoting from Mass.R.A.P. 8(e). A trial judge's correction of the record "is essentially conclusive." Commonwealth v. Robles, 423 Mass. 62, 72-73 (1996) (Robles).
The rule provides that any differences as to whether the record truly discloses what occurred shall be "settled by that court." Mass.R.A.P. 8(e).
Relying on (1) the indictment charging unarmed burglary; (2) the verdict slip for unarmed burglary; (3) the docket entry reflecting a verdict of guilty on the indictment for unarmed burglary; (4) the judge's memory of the verdict and the conduct of the trial; and (5) a recording of the delivery of the verdict, the trial judge allowed the motion to correct the record. While the transcript reflects that the clerk asked the jury foreperson to render the verdict with regard to the charge of "armed burglary," the clerk's followup question verified that the jury found the defendant guilty of the offense "as charged." No one present in the courtroom noted a discrepancy or objected. The judge found, based on his own recollection and practice, that the clerk said "unarmed." See Denehy, supra. The indictment and the verdict slip both recited the offense of unarmed burglary, as did the docket. See Denehy, 466 Mass. at 727, quoting from Savage v. Welch, 246 Mass. 170, 176 (1923) ("Docket entries 'import incontrovertible verity'" unless corrected by the court). Cf. Barry v. Commonwealth, 390 Mass. 285, 289 (1983) ("the docket and minutes of the clerk are prima facie evidence of the facts recorded therein"). The judge's factual finding that the transcript contained an error is "essentially conclusive." Robles, 423 Mass. at 73.
At the motion hearing, the defendant argued that the transcript was conclusive as to what the jury heard.
The defendant argues that the Commonwealth's showing was deficient because there was no affidavit from the court reporter and that the prosecutor's cellular telephone recording of the court reporter's backup recording should not have been considered. The judge was presented with a conflict between the indictment, the docket, and the verdict slip on the one hand and the transcript on the other. In resolving the discrepancy, the judge was not limited to the transcript or the court reporter's representations; he was entitled to consult his own memory, the usual practice of the judge and courtroom clerk, the official court documents, and any uncontroverted evidence. See Robles, supra; Denehy, supra.
The defendant did not object to the recording, and expressly waived any claim that the prosecutor's copy of the tape was fabricated, doctored, or in error. While it certainly would have been preferable for the Commonwealth to produce the reporter's affidavit, and/or a copy of the backup tape from the court reporter, the defendant did not dispute the authenticity or accuracy of the CD (see note 4, supra) at the hearing. The Commonwealth had produced prima facie evidence, based on the court's records, that the transcript was in error. Contrary to the defendant's argument on appeal, the judge did not shift the burden of proof to the defendant when he asked if the defendant disputed the recording. Moreover, the judge considered the cellular telephone recording in context, that is, as confirmation of his memory and the court's records.
The Commonwealth stated that the prosecutor and the reporter had listened to the tape of the proceeding that was transcribed when the verdict was returned, and that the word "unarmed" was heard on the tape. The prosecutor recorded the tape on his cellular telephone and provided the judge with a CD of the telephone recording. Recognizing the unorthodox nature of the tape, the trial judge repeatedly inquired of defense counsel at the motion hearing whether the tape was in any way inaccurate. Although he had listened to the tape, defense counsel declined to respond to the judge's questions, claiming a conflict of interest. The court reporter's backup tape was not admitted at the hearing. No copy of the CD of the cellular telephone recording has been included in the appellate record.
The docket, indictment, and verdict slip, coupled with the clerk's practice and the judge's recollection of the trial proceedings, formed a proper and sufficient basis for the judge's findings. Robles, supra. Given that the motion judge acted within his authority pursuant to Mass.R.A.P. 8(e) in correcting the record, it follows that the judge did not abuse his discretion in denying the motion to vacate the conviction.
Order denying motion to Mass.R.Crim.P. vacate conviction pursuant 30(a) to affirmed
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 8, 2015.