Com. v. Maloney

Decision Date24 October 2006
Docket NumberSJC-09676
Citation855 N.E.2d 765,447 Mass. 577
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

William J. O'Hare for the defendant.

William J. Meade, Boston, for Massachusetts District Attorneys Association, amicus curiae, submitted a brief.



This case requires us to examine St.2005, c. 122, known as "Melanie's Law," which changed the law governing the prosecution of operating under the influence (OUI) offenses in Massachusetts. At issue are the amendments made by Melanie's Law to the procedure by which the Commonwealth may prove prior OUI convictions to enhance a defendant's sentence. We conclude that the amended OUI statute, as applied to the defendant in this case, does not violate the ex post facto, due process, or confrontation clauses of the Federal or State Constitutions.1

1. Facts. On October 11, 2005, a complaint issued in the Peabody Division of the District Court Department charging the defendant, Matthew J. Maloney, with OUI as a fourth offense in violation of G.L. c. 90, § 24(1)(a)(1).2 On October 28, 2005, the Governor signed into law an emergency act3 entitled "An Act increasing penalties for drunk drivers in the Commonwealth," St.2005, c. 122. On November 9, 2005, after a three-day jury trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol. Following this conviction, the defendant was entitled to a separate proceeding, pursuant to G.L. c. 278, § 11A, to determine whether he had been convicted of the three prior OUI offenses alleged in the complaint. The Commonwealth, seeking clarity as to whether the amendments of Melanie's Law would apply to this proceeding moved to report the question to the Appeals Court pursuant to Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004).4 The trial judge allowed the motion and reported the following two questions to the Appeals Court:

(1) Would application to cases now pending in the trial court of St.2005, c. 122, § 6A, amending G.L. c. 90, § 24,5 violate State or Federal constitutional prohibitions of ex post facto laws, specifically, the fourth category of such laws as set forth in Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)?6

(2) Would the introduction of documentary evidence of the types listed in St.2005, c. 122, § 6A, be sufficient to sustain a finding of a prior conviction when it demonstrates, through corroborating identifying information such as date of birth, address, social security number, or distinguishing physical characteristics, that the defendant is the same person as that named in the prior conviction, or must the Commonwealth in all cases present live witnesses to establish that fact?

We allowed the parties' joint application for direct appellate review.

2. Legal framework. General Laws c. 90, § 24, is the Massachusetts OUI statute. Section 24(1) (a) (1) makes it a crime to operate a motor vehicle on a public way while under the influence of an intoxicant, and sets forth more severe penalties for those convicted of second or subsequent offenses. In order to subject a repeat OUI offender to these greater penalties, the Commonwealth must prove the prior convictions in a separate proceeding pursuant to G.L. c. 278, § 11A. This statute governs the proof of repeat offender enhancements generally, and provides, in part:

"If a defendant is charged with a crime for which more severe punishment is provided for second and subsequent offenses, and the complaint or indictment alleges that the offense charged is a second or subsequent offense, the defendant on arraignment shall be inquired of only for a plea of guilty or not guilty to the crime charged. . . . If a defendant pleads guilty or if there is a verdict or finding of guilty after trial, then before sentence is imposed, the defendant shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense. If he pleads guilty thereto, sentence shall be imposed; if he pleads not guilty thereto, he shall be entitled to a trial by jury of the issue of conviction of a prior offense, subject to all of the provisions of law governing criminal trials. . . . Upon the return of a verdict, after the separate trial of the issue of conviction of one or more prior offenses, the court shall impose the sentence appropriate to said verdict."

Id. Proceedings under this section are "subject to all of the provisions of law governing criminal trials," id., and the Commonwealth must prove prior convictions beyond a reasonable doubt. Commonwealth v. Pagan, 445 Mass. 161, 174, 834 N.E.2d 240 (2005).

a. Proof of prior OUI convictions before enactment of Melanie's Law. Before the enactment of Melanie's Law, G.L. c. 90, § 24(4), inserted in 1986, governed proof of prior OUI convictions. See St.1986, c. 620, § 13. After several amendments not relevant here, this section provided:

"In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted."

G.L. c. 90, § 24(4), as amended through St.2003, c. 28, §§ 1-7; St.2003, c. 26, §§ 228, 229. Although § 24(4) did not require introduction of live testimony to authenticate conviction records, it apparently became a common practice in some courts to require such live testimony—a practice the Commonwealth considered burdensome.7

b. Prima facie evidence. Section 24(4) provided that a court record of a prior conviction, accompanied by other documentation, would be "prima facie evidence" that a defendant had been convicted previously. 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. See Commonwealth v. Lykus, 406 Mass. 135, 144, 546 N.E.2d 159 (1989); Commonwealth v. Pauley, 368 Mass. 286, 291-292, 331 N.E.2d 901, appeal dismissed, 423 U.S. 887, 96 S.Ct. 181, 46 L.Ed.2d 119 (1975). A number of Massachusetts criminal statutes designate certain evidence as "prima facie." See, e.g., G.L. c. 22C, § 39 (certificate of chemical analysis of narcotics is prima facie evidence of composition, quality, and weight); G.L. c. 269, § 11C (defendant's possession of firearm with obliterated serial number is prima facie evidence that defendant obliterated it).

Such provisions serve to identify evidence that the Commonwealth may introduce to meet its burden and which, while just as probative as other evidence, is less burdensome to produce. See, e.g., Commonwealth v. Verde, 444 Mass. 279, 280 n. 1, 827 N.E.2d 701 (2005) (use of narcotics analysis certificates "reduce[s] court delays and the inconvenience of having the analyst called as a witness"). They do not, however, alter the Commonwealth's substantive burden of proof, render admissible any evidence that previously was inadmissible, or render sufficient any evidence that necessarily was insufficient beforehand. Rather, when properly employed by the Legislature, such provisions are merely a matter of administrative convenience that eliminate uncertainty as to what will constitute sufficient proof. Accordingly, we have held that the Legislature's decision that "A" is prima facie evidence of "B" does not impermissibly lower the Commonwealth's burden of proof, at least where "A" is enough to establish "B" beyond a reasonable doubt. See Commonwealth v. Pauley, supra at 296-298, 331 N.E.2d 901.

In Commonwealth v. Koney, 421 Mass. 295, 657 N.E.2d 210 (1995), we added a gloss to the "prima facie" aspect of § 24(4). In that case, the Commonwealth sought to prove the defendant's prior OUI offenses through several "packets" of court documents indicating that a Roger A. Koney had been convicted previously of OUI. Id. at 301, 657 N.E.2d 210. However, there was no evidence other than identity of name connecting these documents to the defendant. Id. In finding the evidence insufficient, we stated:

"It was incumbent on the Commonwealth to prove . . . that the defendant, Roger A. Koney, who was in the courtroom was the same Roger A. Koney named in the three prior convictions. . . . This the Commonwealth did not do. Mere identity of name is not sufficient to indicate an identity of person." (Citation omitted.)

Id. at 301-302, 657 N.E.2d 210. In effect, we read into § 24(4) a requirement that documentation reflecting a conviction be linked to the defendant before such documentation can be prima facie evidence of a conviction.

c. Changes effected by Melanie's Law to proof of prior OUI convictions. Statute 2005, c. 122, § 6A, replaced G.L. c. 90, § 24(4),8 with the following:

"In any prosecution commenced pursuant to this section introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant's biographical and informational data from records of the department of probation, any jail or house of correction[], the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or...

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