Commonwealth v. Deramo

• Citation: 436 Mass. 40,762 NE 2d 815
• Parties: COMMONWEALTH v. JASON DERAMO.
• Decision Date: 04 October 2001
• Court: United States State Supreme Judicial Court of Massachusetts

436 Mass. 40

762 NE 2d 815

COMMONWEALTH v. JASON DERAMO.¹

Supreme Judicial Court of Massachusetts, Plymouth.

October 4, 2001.

February 8, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

George W. Skogstrom, Jr., for the defendant.

Christina L. Crowley, Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

Following a jury-waived trial, the defendant was convicted of operating a motor vehicle after his license had been revoked for operating while under the influence of alcohol (G. L. c. 90, § 23, second par.). On appeal, he contended that the motion judge erred in denying his motion to suppress evidence obtained as a result of an allegedly unlawful stop. He also contended that the trial judge erroneously admitted in evidence copies of registry of motor vehicles (registry) records without the authentication required by G. L. c. 233, § 76, and that, without the erroneously admitted records, there was insufficient evidence to support the conviction. The Appeals Court affirmed the conviction in an unpublished memorandum and order pursuant to its rule 1:28. 50 Mass. App. Ct. 1112 (2001). We granted the defendant's application for further appellate review. We now conclude that the motion to suppress was properly denied. While we agree with the defendant that a portion of the registry records was erroneously admitted, the error was not prejudicial, and there was ample evidence, properly admitted, to support the conviction. We therefore affirm.

1. Motion to suppress.² In January, 1998, Officer John Mulready of the Carver police department was dispatched to the defendant's garage in response to a reported break-in. While there, Mulready overheard another officer ask the defendant how he had come to work that day. In response, the defendant pointed to a gray Ford F150 pickup truck with distinctive silver door handles. Later that day, Mulready ran a check on the truck's registration. He learned that the truck was registered to the defendant and that the defendant's license had been revoked. Specifically, he learned that there were two separate license revocations then in effect, a two-year revocation imposed in October, 1996, for operating while under the influence of alcohol, and a four-year revocation imposed in December, 1996, for the defendant's record as a habitual traffic offender (G. L. c. 90, § 22F).

On March 6, 1998, Mulready was on patrol on Route 44 in Carver. He observed a gray Ford F150 pickup truck go by, and recognized the unusual door handles that he had previously seen on the defendant's vehicle. Based on the information he had obtained back in January concerning the defendant's license revocations, Mulready stopped the vehicle to make inquiry concerning the status of the defendant's license. As Mulready went up to the driver's side door, the defendant made an incriminating statement concerning the status of his license.³ Mulready arrested the defendant for operating a motor vehicle after his license had been revoked. At no time prior to the stop did Mulready perform a current check of the status of the defendant's license. A subsequent check confirmed that the defendant's license was still revoked.

The defendant contends that Mulready lacked the requisite reasonable suspicion to effectuate the stop, and that all evidence obtained as a result of that stop should have been suppressed.⁴ In order to effectuate a stop for purposes of a threshold inquiry, the police must have "a reasonable suspicion, based on specific, articulable facts and reasonable inferences, that the defendant had committed, was committing, or was about to commit a crime." Commonwealth v. Willis, 415 Mass. 814, 817 (1993). Here, based on his observation of the defendant's vehicle and his knowledge that the defendant's license had, as of two months earlier, still been subject to two lengthy periods of revocation, Mulready reasonably suspected that the defendant was committing the crime of operating a motor vehicle without a valid license.

The defendant argues that, prior to the stop, Mulready recognized only the vehicle, not the driver, and that mere identification of the vehicle did not give rise to a reasonable suspicion that the defendant was operating the vehicle. At the motion hearing, Mulready testified that he identified the defendant prior to making the stop.⁵ The defendant's argument is premised on the fact that, at trial, Mulready's testimony omitted this particular detail, and the defendant suggests that Mulready's trial testimony somehow eviscerates his testimony at the motion hearing. We disagree. Having successfully established the basis for the stop at the evidentiary hearing on the motion to suppress, the Commonwealth was not required to reestablish the basis for the stop at trial. "Moreover, in reviewing a judge's ruling on a motion to suppress, an appellate court `may not rely on the facts as developed at trial' even where the testimony differed materially from that given at trial." Commonwealth v. Grandison, 433 Mass. 135, 137 (2001), quoting Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 391-392 (1993).

Even if Mulready had recognized only the vehicle without making a specific identification of the defendant prior to the stop, courts have held that the police may, in the absence of any contrary evidence, reasonably conclude that a vehicle is likely being driven by its registered owner. See, e.g., Lake in the Hills v. Lloyd, 227 Ill. App. 3d 351, 352-353 (1992); State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996); State v. Halvorson, 299 Mont. 1, 4-5 (2000); State v. Richter, 145 N.H. 640, 641-642 (2000). We agree. While it is certainly possible that someone other than a vehicle's registered owner may be operating the vehicle on any given occasion, the likelihood that the operator is the owner is strong enough to satisfy the reasonable suspicion standard. See Lake in the Hills v. Lloyd, supra at 353, citing People v. Barnes, 152 Ill. App. 3d 1004, 1006 (1987).

The defendant also contends that Mulready's recollection of the records he had seen two months earlier did not justify any inference that the defendant's license was still revoked, and that Mulready should have performed a current license check prior to making the stop. As of January, 1998, Mulready knew that the defendant was still subject to a two-year revocation that had been imposed back in October, 1996. That revocation was to continue until October, 1998, and thus would still be in effect as of the March 6, 1998, date on which Mulready saw the defendant operating a vehicle. As of January, 1998, Mulready also knew that the defendant had another revocation in effect, a four-year habitual traffic offender revocation that had been imposed in December, 1996. That revocation would not expire until December, 2000, a date long beyond the March 6, 1998, date of this stop.

However, the defendant points out that, during the two months that had elapsed since Mulready checked on the status of his license, his license might have been reinstated for some reason (e.g., on grounds of hardship), and that Mulready's information from two months earlier would not rule out that possibility. The standard of "reasonable suspicion" does not require that an officer exclude all possible innocent explanations of the facts and circumstances. While it was possible that some relief might have been accorded to the defendant between January, 1998, and March, 1998,⁶ it was reasonable for Mulready to suspect that some form of license suspension was still in effect when he observed the defendant operating his motor vehicle in March, 1998. See State v. Leyva, 599 So. 2d 691, 693 (Fla. Dist. Ct. App. 1992) (reasonable for officer to suspect that defendant's license still suspended where officer had checked status of license four to five weeks prior to stop); State v. Harris, 236 Ga. App. 525, 526-527 (1999) (information that license was suspended obtained within "few weeks" of stop); State v. Duesterhoeft, 311 N.W.2d 866 (Minn. 1981) (officer's knowledge of license suspension from check performed one month earlier provided reasonable suspicion for stop); State v. Yeargan, 958 S.W.2d 626, 633 (Tenn. 1997) (officer who had been present when defendant's license was suspended for one year had reasonable suspicion to stop defendant when he saw defendant driving six months later). Cf. Boyd v. State, 758 So. 2d 1032, 1034-1036 (Miss. Ct. App. 2000) (knowledge that defendant's license had been suspended eight years earlier, in absence of any evidence concerning length of that suspension, did not support reasonable suspicion that license was still suspended).

We thus conclude that Mulready had reasonable suspicion to stop the defendant's vehicle, and that the motion judge correctly denied the defendant's motion to suppress.

2. Admission of registry records, G. L. c. 233, § 76. Prior to trial, and again during trial, the defendant objected to the introduction of copies of records from the registry on the ground that the copies did not bear an original attestation from the registry and that those copies differed from the records sent to the court under the proper original attestation. Specifically, the clerk had on file a set of records from the registry that bore an original attestation dated July 16, 1998. However, the prosecutor had, by way of the Carver police, a set of records with a certification date of March 24, 1998, but the attestation on that set was not itself an original. The police had apparently copied a set that they had previously obtained from the registry and sent that copy to the prosecutor, but the police did not produce the copy bearing an original attestation that they had obtained from the registry.⁷ Thus, the set of registry records that the prosecutor wished to introduce bore a copy of the attestation from the Registrar of Motor Vehicles (registrar), but not an original attestation, while the clerk's set, sent to the...