Opinion
10-P-1563
10-04-2011
COMMONWEALTH v. OSCAR GUZMAN.
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
Before us is the defendant's appeal from a conviction of operating a motor vehicle after his license was suspended or revoked for operating under the influence of alcohol. We reverse the defendant's conviction. See Commonwealth v. Parenteau, 460 Mass. 1, 8-9 (2011).
The defendant was also convicted of operating under the influence (fourth offense) and furnishing a false name. Those convictions are not before us.
At trial, the sole evidence that the defendant had received notice that his license was revoked or suspended for operating under the influence of alcohol was a certificate from the Registry of Motor Vehicles (registry). In Parenteau, supra, the Supreme Judicial Court concluded that when offered for the purpose of establishing that a notice of license revocation was mailed to the defendant, and by inference was received by him, the registry certificate falls within the core class of testimonial statements covered by the confrontation clause of the Sixth Amendment to the United States Constitution:
Unlike in Commonwealth v. Deramo, 436 Mass. 40, 51 (2002), apart from the registry certificate, there was no evidence in this case of the defendant's actual knowledge that his license was revoked on account of his convictions of operating under the influence.
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'[T]he registry certificate, like a certificate of drug analysis, is testimonial in nature. It is a solemn declaration made by the registrar for the purpose of establishing the fact that a notice of license revocation was mailed to the defendant . . . and, by inference, was received by him. . . . The certificate did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed -- i.e., notice had been mailed on a specified date. . . . Because the certificate is a testimonial statement, its admission at trial in the absence of testimony from a registry witness violated the defendant's Sixth Amendment right to confrontation.'Ibid. (citation omitted.)
On the count of operating after suspension, the judgment is reversed, the finding is set aside, and the case is remanded to the District Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Grasso, Katzmann & Rubin, JJ.),