Opinion
10-P-2032
01-18-2012
COMMONWEALTH v. HARRY J. NORTON.
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 are the defendant's direct appeal and his appeal from the denial of his motion for a new trial. The defendant was convicted of operating under the influence of intoxicating liquor, fifth offense (count 1); negligent operation of a motor vehicle (count 3); operating a motor vehicle after suspension of license, subsequent offense (count 4); operating an uninsured motor vehicle (count 6); and operating an unregistered motor vehicle (count 7). We affirm in part and reverse in part.
1. Motion for new trial. a. Failure to request mistrial or voir dire. At trial, defense counsel concluded that, although one or more jurors had overheard a sidebar discussion on the defendant's motion for a required finding of not guilty, any error was not prejudicial. On appeal, the defendant argues that trial counsel's failure to request a mistrial or voir dire of the juror(s) amounted to ineffective assistance of counsel.
The test for ineffective assistance is the well known one from Saferian. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Even were we to assume, however, that the failure of trial counsel to request a mistrial or voir dire fell below conduct which might be expected of an ordinary fallible attorney -- and it would be hard to conclude that the contemporaneous judgment of counsel here that any error was not prejudicial, was unreasonable -- this claim would nonetheless fail because the defendant has not met his burden of proving that counsel's failure deprived the defendant of a substantial ground of defense. See ibid. In particular, postconviction counsel failed to file any motion seeking to obtain evidence through postverdict interview with any juror. See Commonwealth v. Fidler, 377 Mass. 192, 202-203 (1979). Without such evidence the defendant cannot show that the failure by trial counsel to request a mistrial or voir dire actually deprived him of a substantial ground of defense.
Nor do we think the defendant has shown that trial counsel's failure to move for a mistrial with respect to testimony about police 'verifi[cation]' of the defendant's personal details amounted to ineffective assistance of counsel. The striking of the testimony and the judge's instruction against speculation suffice to cure any error. Thus, even were we to assume that the failure to move for mistrial met the first prong of Saferian -- something that we do not decide -- no substantial ground of defense was lost.
b. Opinion testimony. Next, we review the claim of error concerning the opinion testimony about the defendant's guilt. This error was not preserved. In light of the fact that the defendant's operation of the motor vehicle was not contested, the defendant has failed to demonstrate error in the judge's determination on the motion for new trial that the failure to object to this testimony did not deprive the defendant of a substantial ground of defense.
2. Direct appeal. a. Negligent operation. There was sufficient evidence to support the defendant's conviction of negligent operation of a motor vehicle in the evidence of the defendant's intoxication and the defendant's hitting another car, and in the Sullivans' testimony about the defendant swerving across the road, driving his car up against the curb, and nearly hitting a pedestrian.
b. Operating without insurance. We agree, however, with the defendant that there was insufficient evidence to support the conviction of operating a motor vehicle without insurance in violation of G. L. c. 90, § 34J. The only evidence in the Commonwealth's case-in-chief concerning insurance is that it had lapsed in December of 2006. There was no evidence that the motor vehicle remained uninsured on the date of the alleged offense, March 17, 2007. To be sure, the defendant's counsel in opening argument conceded that the motor vehicle was uninsured on the date of the alleged offense, and in cross-examination during the defendant's case the defendant himself admitted the point. However, it is well settled that the sufficiency of the evidence to convict a defendant of a crime must be measured, even on appeal, at the close of the Commonwealth's case, see, e.g., Commonwealth v. Kelley, 370 Mass. 147, 149-150 (1976), and that a concession by defense counsel in opening argument, which is not evidence, does not amount to a stipulation and does not relieve the Commonwealth of the burden of producing at trial sufficient evidence to support the conviction. See, e.g., Commonwealth v. Ramsey, 79 Mass. App. Ct. 724, 729-730 (2011).
c. Operating unregistered motor vehicle. There was sufficient evidence to support the defendant's conviction of driving an unregistered motor vehicle. A Registry of Motor Vehicles (RMV or registry) document showed the revocation of the motor vehicle's certificate of registration in December, 2006. The defendant was asked for his registration on the date at issue, and was unable to produce it. And the registrar's certificate that was submitted to authenticate the registry documents stated that the registrar certified 'that there has since been no reinstatement of [the defendant's] certificate of registration in the Commonwealth of Massachusetts.'
The testimony of Officer Sibilio adequately links the RMV records to the defendant's truck, the motor vehicle at issue in this case.
The defendant argues correctly, however, that the admission of this certificate in the absence of a registry witness violated his Sixth Amendment right to confrontation under Commonwealth v. Parenteau, 460 Mass. 1 (2011), the recent decision of the Supreme Judicial Court rendered during the pendency of this appeal. Because the trial here took place between the time of the decision in Commonwealth v. Verde, 444 Mass. 279 (2005), under which the trial judge would have been required to overrule a confrontation clause objection to the certificate, and the time of the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), we must measure this error by the standard we would use had it been expressly preserved at trial. See Commonwealth v. Vasquez, 456 Mass. 350, 352 (2010). We cannot say that this error was 'harmless beyond a reasonable doubt.' Ibid. In assessing that question, we may rely on neither the statements of defense counsel in opening, nor the defendant's own testimony during the defendant's case. See Ramsey, 79 Mass. App. Ct. at 727-730. See also Commonwealth v. Mendes, 78 Mass. App. Ct. 474, 480-481 (2010), further appellate review granted, 459 Mass. 1104 (2011). Even were we to conclude that the evidence of the revocation of the defendant's certificate of registration was properly authenticated and that that evidence, together with his failure to produce a registration on the date of the charged offense, was sufficient to support a finding of guilt beyond a reasonable doubt -- something we need not and do not decide -- we cannot say beyond a reasonable doubt that the express statement contained in the registry certificate that the defendant's registration had not been reinstated 'did not have an effect on the jury and did not contribute to the jury's' decision to convict. Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). Because of this confrontation error under Parenteau, the judgment on the count charging operation of an unregistered motor vehicle will be reversed.
In light of our conclusion we need not decide the defendant's claim that because the registry certificate was unsigned, it was not properly admitted and the RMV documents were not properly authenticated.
The Commonwealth of course will be entitled to determine whether to retry the defendant on that count. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995). In addition to his sentences on the other charges, the defendant was sentenced to four years of probation from and after his OUI sentence based on his convictions of negligent operation of a motor vehicle, driving an unregistered motor vehicle, and operating a motor vehicle without insurance. Because the probation term reflects a general sentence imposed for these three separate charges, including the unregistered and uninsured motor vehicle charges, the defendant is entitled to an opportunity for resentencing on the negligent operation count on remand. See Commonwealth v. Morgan, 30 Mass. App. Ct. 685, 695-696 (1991) (defendant entitled to opportunity for resentencing where single general sentence had been imposed as a punishment for multiple convictions, one of which was determined on appeal to be invalid).
--------
d. Jury deliberations. Finally, we turn to three claims concerning jury deliberations. First we find no violation of G. L. c. 234, § 34, in the judge's order, upon receipt of the jury's second question, that they continue to deliberate. That question was a request for instruction on the law, see Commonwealth v. Valliere, 366 Mass. 479, 496 (1974) ('a return to court to receive answers to questions asked by the jury does not bring the statute into operation'), and, in any event, the judge found that there had not yet been 'due and thorough' deliberations pursuant to § 34. See ibid. See also Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982).
Nor was there any error in the judge's answer to the jury question. It was correct and not misleading.
Nor has the defendant met his burden of showing that the judge's instruction at approximately 3:40 P. M. that the court officer inform the jurors that the day would end at 4 P. M. was coercive. See Commonwealth v. Watkins, 375 Mass. 472, 492 (1978) (finding the defendant's contention that the judge had coerced the jury into a hasty verdict to be based on 'unsubstantiated speculation'). We do not think that such a message, which might permit the jurors to organize their remaining deliberations for the day, is inherently coercive, particularly in a case like this in which the jury is deliberating about a number of different counts. Particularly in the absence of any motion to conduct postverdict juror interviews, or, indeed, to seek or to introduce any evidence of precisely what the court officer said to the jurors, the defendant has not met his burden to demonstrate coercion in this case.
Conclusion. The judgments on count 1 (OUI, fifth offense) and count 4 (operating after suspension) are affirmed. The judgment on count 6 (uninsured motor vehicle) is reversed, the verdict is set aside, and judgment shall enter for the defendant. The judgment on count 7 (unregistered motor vehicle) is reversed, and the verdict is set aside. The conviction on count 3 (negligent operation) is affirmed, the sentence is vacated, and the matter is remanded for resentencing on count 3. The order denying the motion for new trial is affirmed.
So ordered.
By the Court (Cypher, Vuono & Rubin, JJ.),