Opinion
11-P-119
04-11-2012
COMMONWEALTH v. LOUIS I. DICK.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Louis I. Dick, seeks to overturn his convictions of operating under the influence of liquor (OUI), second offense, and operating with a suspended license, asserting that the Commonwealth erroneously relied on Registry of Motor Vehicles (RMV) certificates to prove his identity. He further asserts that without the certificates, there was no evidence that he was the person named in the complaint filed against him, and that the certificates were inadmissible. We affirm.
Background facts. On the evening of September 15, 2007, the defendant was arrested after a Wayland police officer observed his erratic operation of a motor vehicle and concluded from field sobriety tests that he was operating under the influence of liquor. Following a District Court jury trial in June, 2010, the defendant was convicted of OUI, and in a subsequent bench trial convicted of the second offense portion of the complaint. The jury also found him guilty of operating with a suspended license. He was found not responsible of a civil marked lanes violation.
1. Identification evidence. The defendant's principal claim on appeal is that his motion for required findings of not guilty was improperly denied because, he asserts, the only evidence of his identity was certificates from the RMV. The claim is based on his discovery on the morning of trial that the arresting officer might not be able to identify him in court. A voir dire was requested and the judge allowed a pretrial 'walk by' procedure in two locations in the courthouse. The officer was unable to identify the defendant.
At trial, the officer testified that at the roadside stop he determined that the defendant did not have a license, but obtained his name, date of birth, and an address in Nashua, New Hampshire. Shown a booking photograph, he stated, '[T]hat would be the defendant; but based on that photograph it's not similar to the subject sitting next to the defense attorney,' and in cross-examination acknowledged he was not sure if the person he arrested in September, 2007, was in the courtroom.
While '[m]ere identity of name is not sufficient to indicate an identity of person,' Commonwealth v. Koney, 421 Mass. 295, 302 (1995), '[t]he cases confirm that very slight evidence in addition to identity of name . . . might be enough to prove identity of a person.' Nugent v. Popular Markets, Inc., 353 Mass. 45, 47 (1967). Here, there is an unbroken chain of evidence that the person stopped by the officer is the same person booked and later charged in the complaint. There was the photograph taken at booking which the jury could compare with the defendant's appearance in the courtroom. Evidence obtained by the officer, such as his name, date of birth, and address, was confirmed by the complaint and the docket sheet. Accordingly, the defendant is mistaken that the RMV certificates were the only evidence of his identity.
'[I]t is basic law and does not require any citation that an essential element to be proved by the Commonwealth is that the individual who appears before the court as the defendant is the same person who is the subject of the indictment or complaint then on trial and the same person referred to in the evidence. Proof of the identity of the person who committed the offense may be established in a number of ways and '[i]t is not necessary that any one witness should distinctly swear that the defendant was the man, if the result of all the testimony, on comparison of all its details and particulars, should identify him as the offender." Commonwealth v. Davila, 17 Mass. App. Ct. 511, 512 (1984), quoting from Commonwealth v. Cavanaugh, 7 Mass. App. Ct. 33, 36 (1979).
The defendant complains there was no evidence connecting him to the certificates such as a description of the car he was driving, or physical characteristics such as weight, hair and eye color, or distinguishing facial features, tattoos, or scars. There was no significance to the defendant's connection with the car. A passenger in the car at the time of the stop stated he was the owner and gave the officer the registration. In view of the officer's estimate of the defendant's height and weight, the lack of description of the other characteristics referred to is not significant here.
Moreover, there is no merit in the defendant's assertion that the certificates were testimonial and violated his confrontation rights under Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Although acknowledging that our cases, Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167 (2010); Commonwealth v. McMullin, 76 Mass. App. Ct. 904 (2010); and Commonwealth v. Weeks, 77 Mass. App Ct. 1 (2010), hold that admission of court and RMV records does not violate confrontation rights, the defendant proposes a different interpretation of Melendez-Diaz, which we decline to consider.
The judge properly denied the defendant's motion for required findings of not guilty.
2. Other arguments. a. The defendant asserts that in closing argument, the prosecutor argued facts not in evidence, and, as there was no objection, the defendant contends a substantial risk of a miscarriage of justice occurred because there was no other evidence that the defendant lived at the same address as shown on the certificates. The prosecutor twice stated that when the officer stopped the defendant he was given the same address as shown in the RMV certificates. However, the defendant only stated he lived in Nashua, New Hampshire, while the certificates show that the defendant had a mailing address of 88 Railroad Square in Nashua. To the extent that this was a misstatement of the evidence, the consequences were of no significance because the jury were instructed 'to rely on [their] memory of the evidence, not that of counsel.' Commonwealth v. Montanez, 439 Mass. 441, 452 (2003). For the further reasons given in the Commonwealth's brief at pages 15 through 18, there was no substantial risk of a miscarriage of justice.
b. The defendant complains the prosecutor's statement in closing argument that a RMV letter indicates 'that [the defendant] is eligible to have a license reinstated; not that he's been reinstated,' suggested that there was no evidence of reinstatement and improperly drew the jury's attention to the 'fact that [the defendant] did not testify or provide evidence of reinstatement.' There was evidence that the defendant's license had been suspended effective June 7, 1997, and no evidence that his license had been reinstated. The lack of a license was not in dispute at trial, there was no objection to the prosecutor's comment, and there is nothing to indicate that the comment can be interpreted as shifting the burden of proof to the defendant. For these reasons and the further reasons given in the Commonwealth's brief at pages 19 to 23, there was no substantial risk of a miscarriage of justice.
c. The defendant again raises an issue of identity in the second offense bench trial, asserting that his identity was proven solely by documentary evidence, and asserts that those documents were inadmissible and his motion for a required finding of not guilty improperly was denied. While more than identity of name is required, 'we have never said that live witness testimony was required.' Commonwealth v. Bowden, 447 Mass. 593, 601-602 (2006). The RMV documents and a District Court docket sheet submitted readily provided the additional identifying information required. Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 546-547 & n.1 (2008). For these reasons and the additional detailed reasons given in the Commonwealth's brief at pages 23 through 26, we conclude that the defendant's motion for a required finding, viewed according to Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), properly was denied.
Judgments affirmed.
By the Court (Cypher, Katzmann & Grainger, JJ.)