Commonwealth v. McEvoy, 16–P–1681

• Decision Date: 04 June 2018
• Docket Number: No. 16–P–1681,16–P–1681
• Citation: 93 Mass.App.Ct. 308,100 N.E.3d 767
• Parties: COMMONWEALTH v. Bradley MCEVOY.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 308

100 N.E.3d 767

COMMONWEALTH

v.Bradley MCEVOY.

No. 16–P–1681

Appeals Court of Massachusetts, Essex.

Argued November 13, 2017

Decided June 4, 2018

Kevin P. DeMello for the defendant.

Ronald DeRosa, Assistant District Attorney, for the Commonwealth.

Present: Kinder, Desmond, & Sacks, JJ.

SACKS, J.

After a District Court jury trial, the defendant was convicted of leaving the scene of an accident causing both personal injury and property damage and of operating a motor vehicle with a suspended license.¹ On appeal, the defendant claims that (1) admission in evidence of the registry of motor vehicles' (registry) "mailing confirmation" document related to his notice of license suspension violated the confrontation clause and was erroneous on other grounds, (2) the Commonwealth offered insufficient evidence to prove that he had notice of his license suspension, (3) his motion to suppress the victim's pretrial identification of him from a photographic array was erroneously denied, and (4) the judge improperly omitted a portion of the Gomes jury instruction addressing eyewitness identification under high stress. See Commonwealth v. Gomes, 470 Mass. 352, 381–382 & n.9, 22 N.E.3d 897 (2015) (Appendix). We affirm.

Background. The jury could have found that on July 3, 2013, Andres Santana was operating his motorcycle in Lynn, when a sport utility vehicle (SUV) pulled out from a side street to make a turn. Unexpectedly, however, a green sedan pulled out immediately behind the SUV and then stopped in Santana's travel lane, forcing him to brake. Santana saw the driver of the sedan for about a second and observed that he was wearing a white tank top and that his left arm was tattooed. Anticipating that the sedan might proceed forward, Santana tried to steer to the right and rear of the sedan to avoid a collision. The driver, however, stared directly at Santana, "ma[king] perfect eye contact," and momentarily froze.

Santana's motorcycle struck the sedan's driver's side rear quarter panel, propelling him into the air and over the sedan. He hit the road and rolled underneath a stopped vehicle, and by the time he stood up, he could not see the sedan. He received medical treatment and his motorcycle was later declared a total loss.

A Lynn police officer arrived and spoke with Santana. The officer also found a bumper, with the license plate attached, in the intersection. A few hours later, the officer was dispatched to a street less than a mile away where a 1997 green Geo Prism sedan was found parked. The Prism had damage to the rear driver's side and matched the license plate left in the intersection. The defendant was the registered owner of the Prism.

Two days later, on July 5, the defendant reported to the Lynn police that his Prism had been stolen. He stated that the theft occurred sometime between July 3 and 5, from a street corner in Lynn, and that the keys were in the vehicle and the doors locked. Further police investigation showed that, prior to the date of the collision, the defendant's operator license had been suspended and the insurance and registration for the Prism had been revoked.

Lynn police Officer John Meaney attempted to locate the defendant. On July 11, he went to the address in Peabody listed for the defendant in the registry's records. There was no answer at the door, but the Prism was in the driveway.² Officer Meaney noticed damage to the rear quarter panel but saw no damage to the windows, ignition, or steering column.

Several days later, the defendant telephoned Officer Meaney and said that he had brought the sedan to Lynn and parked it there sometime on July 3. The defendant explained that he always left a key under the mat and denied any involvement in the collision.

The police prepared a photographic array that included a picture of the defendant, and on August 15, Officer Meaney showed Santana the array. Santana identified the defendant's photograph as that of the driver. Santana also told Officer Meaney that the driver had tattoos, although they were not visible in the photograph.³ Santana later identified the defendant in court as the driver. The defense theory, advanced through cross-examination and argument, was misidentification.

Discussion. 1. Registry mailing confirmation. The defendant raises three challenges to the Commonwealth's use at trial of a registry mailing confirmation document to prove that he received notice of his license suspension. He argues that use of the document violated the confrontation clause—both because it was created for use at trial and because it was used to prove an element of the crime—and that it was not properly authenticated.

To prove the charge, the Commonwealth was required to show, among other things, that the defendant had been notified that his license was suspended or revoked. See G. L. c. 90, § 23 ; Commonwealth v. Deramo, 436 Mass. 40, 50, 762 N.E.2d 815 (2002) ; Commonwealth v. Parenteau, 460 Mass. 1, 5–6, 948 N.E.2d 883 (2011) "Pursuant to G. L. c. 90, § 22(d ),^{[4 ]} the Commonwealth can satisfy this burden by showing that the registry properly mailed the notice of suspension or revocation, which constitutes ‘prima facie evidence of receipt by the addressee.’ " Id. at 6, 948 N.E.2d 883, quoting from Commonwealth v. Koney, 421 Mass. 295, 303–304, 657 N.E.2d 210 (1995). See Commonwealth v. Royal, 89 Mass. App. Ct. 168, 174 n.9, 46 N.E.3d 583 (2016).

To meet this burden, the Commonwealth introduced a copy of a May 10, 2013, notice addressed to the defendant, informing him that his license would be suspended effective June 9, 2013 (about one month before the July 3 collision). The notice bore the designation: "USPS ID: 370853." The Commonwealth also introduced a registry document entitled "USPS MAILING CONFIRMATION." The mailing confirmation also bore the designation "USPS ID: 370853,"⁵ and included the statements, "CREATED BY RMV ON: 05/10/2013" (the same date as the notice), and "RECEIVED BY USPS: 05/13/2013 20:09, AT POST OFFICE: 02205." The documents were certified by the registrar of motor vehicles (registrar) under G. L. c. 90, § 22.

a. Confrontation clause: purpose for record's creation. The defendant first argues that the mailing confirmation was inadmissible under Parenteau, 460 Mass. 1, 948 N.E.2d 883, because it was created for the purpose of use at trial. In Parenteau, the Commonwealth had introduced a copy of the notice of license revocation together with the registrar's attested statement that the notice had been mailed on the date shown on the notice. See id. at 4, 948 N.E.2d 883. The attestation was dated two months after the related criminal complaint had issued. See id. at 8, 948 N.E.2d 883. The court held that the attestation document was testimonial because the date showed that it had been produced specifically for use at the defendant's trial. See id. at 8–9, 948 N.E.2d 883. The court concluded that the document's "admission at trial in the absence of testimony from a registry witness" violated the defendant's confrontation rights. Id. at 9, 948 N.E.2d 883.

In reaching this conclusion, the Parenteau court relied on Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), as outlining the particular characteristics that render business records, if admitted without live testimony, violative of the confrontation clause. Under Melendez–Diaz, "business records are not admissible at trial ‘if the regularly conducted business activity is the production of evidence for use at trial.’ " Parenteau, 460 Mass. at 9, 948 N.E.2d 883, quoting from Melendez–Diaz, 557 U.S. at 321, 129 S.Ct. 2527. As an illustration, in Melendez–Diaz, the Court quoted from Palmer v. Hoffman, which held that "an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad's operations, it was ‘calculated for use essentially in the court, not in the business.’ " Melendez–Diaz, 557 U.S. at 321, 129 S.Ct. 2527, quoting from Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 87 L.Ed. 645 (1943). "[B]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial." Parenteau, 460 Mass. at 9, 948 N.E.2d 883, quoting from Melendez–Diaz, 557 U.S. at 322–324, 129 S.Ct. 2527.

Applying these principles, the Parenteau court held that the registrar's attestation of mailing, created for use at trial, was inadmissible because it was not "a contemporaneous business record." Id. at 10, 948 N.E.2d 883. Importantly, however, the court explained that, "If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial." Ibid.

In response to Parenteau, the registry implemented a system to create such contemporaneous records, and we upheld their admissibility against a confrontation clause challenge in Royal, 89 Mass. App. Ct. at 174, 46 N.E.3d 583. We concluded:

"The mailing confirmation records introduced in this case appear to be such contemporaneous business records, now maintained by the registry in response to the Parenteau decision. They were properly admitted as evidence that the registry mailed, and prima facie evidence that the defendant received, the notices of intent to suspend his license."

The defendant here nevertheless presses the claim that the mailing confirmations are testimonial because they were not created for any business purpose but instead "were created in the wake of the Parenteau case for the sole purpose of allowing the Commonwealth to prove notice of suspensions and revocations at trial without the use of live testimony." Our decision in Royal...