Opinion
19-P-917
07-30-2020
COMMONWEALTH v. MICHAEL DANCEWICZ.
NOTICE: 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
The defendant, Michael Dancewicz, was convicted of leaving the scene of property damage and operating a motor vehicle with a suspended license (subsequent offense) in 2019. On appeal, he argues that (1) there was insufficient evidence showing that he was operating the motor vehicle and (2) the admission of a Registry of Motor Vehicles (RMV) certificate and suspension letter violated his constitutional rights. We affirm.
The defendant was initially charged with (1) operating under the influence of intoxicating liquor, second offense; (2) leaving the scene of property damage; (3) operating a motor vehicle with a suspended license, subsequent offense; and (4) possession of a class B substance. The second offense operation charge was dismissed and replaced with operating under the influence of intoxicating liquor, third offense. The Commonwealth filed a nolle prosequi on the class B possession charge. The jury found the defendant not guilty on the charge of operating under the influence of liquor.
Background. A jury could have found the following facts. In January 2018, at 4:00 A.M., after being dispatched for a reported car accident, two State troopers, Daniel Purtell and Patrick O'Keefe, located a gray Hyundai Sonata on Route 2 east with significant damage on its front side. Vehicle debris was located near the car, and a snow mound roughly one hundred feet away appeared to have been struck by the vehicle. Trooper O'Keefe queried the license plate and learned that the car was registered to Susan Dancewicz at 24 Courtney Terrace in Lynn. The radio was still on in the car. The troopers employed a K-9 named Neko to attempt to track the driver. Neko acquired a scent from the interior of the vehicle and tracked it to a set of fresh footprints in the snow. Neko continued the track, starting down an off-ramp to Interstate Highway 95 south, and then took a left back onto Route 2 east. The K-9 tracking was ultimately terminated for safety reasons. O'Keefe was then notified by a fellow trooper, Christopher Lopilato, that Lopilato had a man in custody identified as Michael Dancewicz with an address of 24 Courtney Terrace in Lynn. Dancewicz, the defendant, had been found in Lexington approximately one-quarter of a mile away from the abandoned car and in the same direction that the K9 had been tracking. Lopilato had been dispatched to respond to a report of an intoxicated white male wearing a red jacket. Upon arrival, Lopilato had noticed that the defendant's clothes were wet and dirty and the defendant had a strong odor of alcohol emanating from his person. The defendant informed Lopilato that he had not been driving and was out for a walk after having left his girlfriend's house in North Andover. He denied the existence of any vehicle registered to someone with his last name being discovered down the road.
The two officers arrived ten minutes apart in separate cars.
The officers ended the search because there was no street lighting in the portion of Route 2 that Neko was tracking. Additionally, there was no breakdown lane and the officers only had their flashlights as a way to signal their presence.
Trooper O'Keefe left the scene of the car accident and drove to where the defendant was located. When he arrived, he noticed that the defendant was swaying from side to side and had bloodshot, red, and glassy eyes. He also noticed an odor of alcohol emanating from the defendant. O'Keefe arrested the defendant. While in O'Keefe's cruiser, after being read his Miranda rights, the defendant "thanked [Trooper O'Keefe] for the ride." O'Keefe asked the defendant where he thought he was and he responded somewhere between North Andover and Middleton. When the defendant was told he was in Lexington, he responded that he could not believe he had walked that far. O'Keefe, unconvinced, responded that he had not walked that far and that North Andover is probably twenty miles from Lexington. When O'Keefe asked the defendant what he had been doing that evening, the defendant stated that he was driving with his ex-girlfriend. When asked where he was driving, he stated that he was not driving but was with his ex-girlfriend when they got into an argument. When asked where his ex-girlfriend had gone and what her name was, he stated that he did not know her name and he was not sure how he got to where he was found.
Trooper O'Keefe testified that he formed the opinion that the defendant was inebriated, and we infer that he also formed the opinion that the defendant was the driver of the crashed vehicle.
Back at the police station, Trooper O'Keefe discovered the defendant had a suspended license. Dancewicz was charged with operating under the influence (second offense); leaving the scene of property damage; operating a motor vehicle with a suspended license (subsequent offense); and possession of a class B substance. The jury found him not guilty of operating under the influence of alcohol and he was convicted of leaving the scene of property damage and operating with a suspended license. As part of the Commonwealth's proof at trial, a three-page document sent to the defendant from the RMV notifying him of his license suspension was entered in evidence. Dancewicz timely appealed from his convictions.
The defendant was in possession of Concerta at the time of his arrest.
Discussion. 1. Sufficiency of the evidence. A person operates a motor vehicle when "he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle." Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 646 (2011), quoting Commonwealth v. Uski, 263 Mass. 22, 24 (1928). "Proof of 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). In evaluating whether a required finding of not guilty was properly denied, the reviewing court "must consider whether, viewing the evidence in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable.'" Commonwealth v. Grandison, 433 Mass. 135, 141 (2001), quoting Commonwealth v. Lodge, 431 Mass. 461, 465 (2000).
The defendant filed a motion for required finding of not guilty for operating with a suspended license.
In the light most favorable to the Commonwealth, the evidence was sufficient to support the element of operation. There was evidence that the car had been only recently abandoned, in that the car had snow on its front end and a nearby snow mound appeared to have been struck. There was vehicle debris in the vicinity of both the car and the snow mound. Moreover, the radio was still on and a K9 unit was able to obtain a scent from the car and track it to a single set of fresh footprints in the snow. Those tracks suggested that there was only one person in the vehicle and that that individual began walking in the direction the defendant was found.
The defendant was the only individual found within any proximity to the crash location, and his clothes were observed to be wet and dirty, consistent with someone walking from a car crash down a highway and through the snow. At around 4 A.M. the defendant was first discovered after someone called the police regarding an intoxicated white male at a large office complex in Lexington. The office complex was located off of the next accessible exit on Route 2 east, which was in line with the direction Neko the K9 had been tracking. Additionally, the defendant's last name and address matched that of the registered owner of the vehicle. His statements to police, inconsistent and far-fetched, belied credulity and reasonably could be viewed as evidence of guilt. See Commonwealth v. Doyle, 12 Mass. App. Ct. 786, 789 (1981). Additionally, notwithstanding other statements to the contrary, portions of his statements included an admission that he had been driving the vehicle. See Petersen, 67 Mass. App. Ct. at 52. On these facts there was sufficient evidence for a jury to reasonably conclude that the defendant was operating the vehicle.
2. Admission of exhibits. Next, the defendant argues that the admission of a registry mailing confirmation document issued from the RMV and an attached nonreinstatement certificate violated the confrontation clause. He asserts their admission was error because the documents were created for trial purposes and were used to prove a necessary element of the crime. Because the defendant raised the issue below, we review for prejudicial error. See Commonwealth v. Brule, 98 Mass. App. Ct. 89, 91 (2020). The defendant's argument has no merit. See Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 312-316 (2018). In McEvoy, we held that a nearly identical mailing confirmation was deemed to be nontestimonial because the RMV has a statutory duty to notify persons of their suspension. See id. at 313. Here, like in McEvoy, the defendant's notice was "created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs." Id., quoting Commonwealth v. Parenteau, 460 Mass. 1, 10 (2011). Contrary to the defendant's assertion, "the act of printing out or copying an electronic record verbatim into a separate document does not constitute the creation of a new record, even where a party requested the printout or copy for litigation." Commonwealth v. Andre, 484 Mass. 403, 410 (2020).
The RMV suspension notice in McEvoy was stamped as created by the RMV on May 10, 2013, and was received by the United States Postal Service on May 13, 2013. Here, the notice was stamped as created on April 25, 2017, and received by the United States Postal Service on April 26, 2017.
"The registry has a statutory duty to notify persons that their operators' licenses have been suspended or revoked. See, e.g., G. L. c. 90, § 22 (d); G. L. c. 90C, § 3 (A) (6) (a). The registry must preserve records of such notices, as well as other documents 'maintained in the normal course of business.' G. L. c. 90, § 30, as amended by St. 2010, c. 409, § 14. The primary purpose of registry mailing confirmations is to 'guarantee, internally, as a matter of course, and when necessary, in court,' that the registry has performed its statutory duty of giving notice of license suspensions and revocations.' Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011)." McEvoy, 93 Mass. App. Ct. at 315.
The admittance of the first paragraph of the coversheet was also not testimonial and did not violate the defendant's rights under the confrontation clause. "[A] clerk's affidavit authenticating an official record is not testimonial for purposes of the confrontation clause." Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904 (2010).
Assuming without deciding that the registrar's nonreinstatement certification in the second paragraph of the cover sheet was testimonial hearsay -- a claim that the defendant did not raise in his motion in limine or at trial -- we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Grady, 474 Mass. 715, 720-721 (2016). The issue of nonreinstatement was not addressed at trial, and the prosecutor made no reference to it. Indeed, the defendant did not contest the fact that his license was suspended at the relevant time.
Judgments affirmed.
By the Court (Meade, Massing & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 30, 2020.