Opinion
No. 15–P–432.
09-12-2016
COMMONWEALTH v. Paul F. HARRINGTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Paul F. Harrington, was convicted of operating a motor vehicle while under the influence of alcohol (OUI); in the second phase of a bifurcated trial, he waived his right to a jury on a subsequent offense charge and was convicted of OUI, third offense. He now appeals, arguing that records of the Registry of Motor Vehicles (registry) were improperly admitted, and that, without them, the evidence was insufficient to prove the subsequent offense portion of the charge; he also claims that G.L.c. 90, § 24(4), is unconstitutional as it applies to his case. We affirm.
At the second portion of the bifurcated trial, the Commonwealth offered a certified copy of the defendant's driving record, and his “Historical License/ID and Demographic Information” from the registry. Also admitted was a certified copy of a docket sheet from the Cambridge District Court showing a 1986 conviction of OUI (and related offenses), and a certified copy of a docket sheet from the Orleans District Court showing a 1993 OUI conviction.
The defendant argues that, because the certified copy of the docket sheet from the Cambridge District Court included only his name, with no other identifying biographical information, it was insufficient to prove beyond a reasonable doubt that the defendant was the same person who had committed the 1986 offenses. In addition, while the defendant agrees that registry records kept in the ordinary course of business are admissible, he contends that the records offered here include notations made by a registry employee after being notified by a court of a conviction or other action, and thus were derivative of other records that were not produced. To support his argument, he relies on Commonwealth v. Bigley, 85 Mass.App.Ct. 507 (2014) ; in that case, the source of the information relating to a notification of license suspension was the registry itself, selected and extracted from information it kept in the ordinary course of business. In this case, the defendant argues, the disputed records are those created by the registry, but the source of the information used to generate those records was the District Court, and those records, apart from the docket sheets, were not in evidence. Id. at 516. In his view, this created a confrontation issue, requiring testimony from a registry representative. We are not persuaded.
The defendant objected at trial, on the basis that no one from the registry was testifying, only to the admission of the various notification letters issued by the registry; he agreed to the admission of the driving record. He also did not object to the admission of the registry record of his residence history.
General Laws c. 90, § 24(4), as appearing in St.2005, c. 122, § 6A, provides that “ ‘certified attested cop[ies] of original court papers' shall be ‘prima facie evidence’ that a defendant previously was convicted. In criminal cases, ‘when evidence “A” is prima facie evidence of fact “B,” then, in the absence of competing evidence, the fact finder is permitted but not required to find “B” beyond a reasonable doubt.’ “ Commonwealth v. Dussault, 71 Mass.App.Ct. 542, 546 (2008), quoting from Commonwealth v. Maloney, 447 Mass. 577, 581 (2006). The evolution of § 24(4) shows that the purpose of this statute is neither to restrict evidence nor require witness testimony, but rather “to highlight an easily obtainable minimum to prove a prima facie case.” Commonwealth v. Bowden, 447 Mass. 593, 598 (2006).
The defendant now argues that the statute is unconstitutional because it impermissibly alters the Commonwealth's burden of proof; that argument was not made to the trial judge. Moreover, it was rejected explicitly in Commonwealth v. Maloney, 447 Mass. 577, 581–582 (2006).
In addition, “[t]he certified record contained information maintained by the [registry] in the ordinary course of business and for the administration of the [registry]'s affairs, and not for the purpose of proving some fact at trial. As a result, the admission of the [registry] record did not violate the defendant's confrontation rights.” Commonwealth v. Nutter, 87 Mass.App.Ct. 260, 267 (2015). See Commonwealth v. Parenteau, 460 Mass. 1, 9 (2011), quoting from Melendez–Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) (because registry records were “created for the administration of [the registry]'s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial”).
It is true that the disputed Cambridge District Court docket sheet contains only the defendant's name, with a middle initial, and no other biographical information; the date of disposition and the named offenses, however, are clearly stated. While identity of name only on the court records is insufficient to be considered prima facie evidence, relying on the attested court record is only “one way to meet the burden of proof for penalty enhancement pursuant to § 24.” Commonwealth v. Bowden, 447 Mass. at 598. Another source of proof is “[c]ircumstantial evidence [which] may be sufficient to prove matters in dispute, including the existence of prior offenses.” Id. at 601.
“June 9, 1986—operating under the influence, speeding and ‘vio. R & R wrong dir.’ “ After a guilty finding, a probation sentence was imposed, along with a victim witness fee.
Here, the registry records contained additional identifying information, including the defendant's date of birth, license number, Massachusetts driver's license with a photo, and other demographic information. The records also indicate the defendant was found guilty of OUI, speeding, and a one-way street violation in Cambridge, on June 9, 1986, the same day indicated on the Cambridge District Court docket sheet.
In addition, the driving history also includes a 1993 conviction in the Orleans District Court of operating under the influence and driving to endanger; the certified copy of that conviction, also admitted at trial without objection, includes the defendant's first name, middle initial, home address (matching the registry demographic information), and date of birth. Also contained in the driving history are references to “cert[s],” i.e., notifications sent to the Harwich, Arlington, and Andover police departments alerting them, as statutorily required, to the defendant's driving revocation and/or license surrender; the municipalities to which “certs” were sent correlate to the defendant's demographic information on file with the registry during the specified time period. See G.L.c. 90, § 24(1)(b). Taken together, this information sufficiently links the defendant to the 1986 Cambridge District Court record, and may be considered adequate proof that the defendant is the same individual convicted of the prior OUI offense in Cambridge. Dussault, supra at 546–547.
We are satisfied that the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant had been “previously convicted or assigned to an alcohol ... treatment, or rehabilitation program by a court of the commonwealth ... of a like offense two times preceding the date of the commission” of the offense for which he has been convicted in this case. G.L.c. 90, § 24(1)(a ) (1). Commonwealth v. Jewett, 471 Mass. 624, 637–638 (2015). We see no error, nor an abuse of discretion, in the admission of the registry records.
Judgment affirmed.