Commonwealth v. Parenteau

• Decision Date: 10 June 2011
• Docket Number: SJC–10763.
• Citation: 948 N.E.2d 883,460 Mass. 1
• Parties: COMMONWEALTHv.Peter L. PARENTEAU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 1

948 N.E.2d 883

COMMONWEALTH

v.Peter L. PARENTEAU.

SJC–10763.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 8, 2011.Decided June 10, 2011.

Nicholas A. Hurston for the defendant.Kevin J. Curtin, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.SPINA, J.

In the present case, here on direct appellate review, we consider whether a District Court judge erred by admitting in evidence, pursuant to G.L. c. 90, § 22 ( d ),¹ a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant, Peter L. Parenteau, on May 2, 2007.² The Commonwealth did not present any testimony from a witness on behalf of the registry. For the reasons that follow, we conclude that the admission of the certificate violated the defendant's rights of confrontation and cross-examination under the Sixth Amendment to the United States Constitution, and that such admission was not harmless beyond a reasonable doubt. Accordingly, we reverse the defendant's conviction of operating a motor vehicle after his license had been revoked for operating while under the influence of intoxicating liquor and remand the case for further proceedings.

1. Background. On April 19, 2007, the defendant pleaded guilty in the Palmer Division of the District Court Department to operating a motor vehicle while under the influence of intoxicating liquor in violation of G.L. c. 90, § 24(1) ( a ) (1). According to the defendant, a judge informed him that his driver's license would be suspended for two years, but, as later discussed, the registrar of motor vehicles (registrar) actually revoked his license for ten years.³ Around the time of his guilty plea, the defendant was temporarily living at his parents' home on Celebration Circle in Chicopee, and he received his mail at that address.⁴ Approximately two years later, when the defendant was no longer living at his parents' home, he received his driver's license in the mail.⁵

On May 30, 2009, at around 9 p.m., the defendant was driving home from a job site in Boxborough when he briefly stopped at a Gulf gasoline station on Massachusetts Avenue to ask for directions. Officer Nathan Bowolick, who was on patrol in the area, observed a motor vehicle parked in the fire lane of the Gulf station. He pulled into the parking lot, checked the registration plate number of the vehicle, and learned that the driver's license of the vehicle's registered owner, the defendant, had been revoked. Officer Bowolick then saw the defendant get into the driver's side of the vehicle, and leave the parking lot. He followed the defendant in his cruiser, activated his blue lights, and pulled over the defendant's vehicle on Massachusetts Avenue. The defendant informed Officer Bowolick that his address was 12 Cedar Hill Road in Holyoke, and he provided Bowolick with what appeared to be a valid driver's license. The defendant subsequently was placed under arrest for violating G.L. c. 90, § 23,⁶ by operating a motor vehicle after his license had been revoked pursuant to G.L. c. 90, § 24(1) ( a ) (1), for operating under the influence of intoxicating liquor. The case proceeded to a jury trial on October 27, 2009.

The defendant filed a motion in limine to exclude documentary evidence from the registry and the Palmer District Court (in the event that such evidence was not supported by witness testimony at trial) on the ground that admission of the documentary evidence violated the defendant's right to confrontation under the Sixth Amendment. The motion was denied. At trial, the Commonwealth introduced a certificate from the registry, dated July 24, 2009, on which appeared a stamped attestation of the registrar stating, in relevant part: “I hereby certify that the annexed instrument(s) are true copy(s) of the driving history and notice(s) of suspension(s)/revocation(s) that were mailed on the date(s) appearing on the notice to the last address on file as appearing in the registrar's records in accordance with the provisions of [G.L. c. 90, § 22]”. The attached notice of license revocation was dated May 2, 2007, and the address to which it purportedly was mailed was the home of the defendant's parents on Celebration Circle in Chicopee. The notice stated that the defendant's license was being revoked for ten years pursuant to his 2007 guilty plea on a charge of operating a motor vehicle while under the influence of intoxicating liquor. The Commonwealth also introduced criminal docket sheets from the Palmer District Court relating to the defendant's guilty plea. ⁷

At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty. The motion was denied. The defendant then testified that he was never notified that his license had been revoked for ten years. It was his understanding that, pursuant to his earlier guilty plea, his license had been revoked for two years. The defendant further testified that his father always telephoned him when the defendant received mail at his parents' home in Chicopee, but that he did not hear from his parents about receiving any mail from the registry. At the close of all evidence, the defendant renewed his motion for a required finding of not guilty. The motion was denied.

The jury found the defendant guilty of operating a motor vehicle after his license had been revoked for operating while under the influence of intoxicating liquor. After the guilty verdict was returned, the defendant again moved for a required finding of not guilty, or, in the alternative, for a new trial. The motions were denied. The defendant was sentenced to one year in a house of correction, sixty days to be served and the balance suspended for two years with probation.

2. Admission of registry certificate. The thrust of the defendant's argument is that the admission in evidence of the registry certificate, in the absence of testimony from a registry witness, violated his right to confrontation under the Sixth Amendment. The defendant contends that the certificate was created exclusively for trial so the Commonwealth could prove a fact necessary to convict him, namely, that he had been notified of the ten-year revocation of his driver's license. Because he challenged such notice, the defendant continues, any attested document that served as evidence to the contrary was a testimonial statement that was subject to cross-examination. We agree.

The Commonwealth bears the burden of proving every element of a crime beyond a reasonable doubt. See Commonwealth v. Farley, 443 Mass. 740, 745, 824 N.E.2d 797, cert. denied, 546 U.S. 1035, 126 S.Ct. 733, 163 L.Ed.2d 577 (2005). A charge of operation of a motor vehicle with a suspended or revoked license requires the Commonwealth to prove, among other things, that the defendant was notified that his license had been suspended or revoked. See G.L. c. 90, § 23; Commonwealth v. Deramo, 436 Mass. 40, 50, 762 N.E.2d 815 (2002); Commonwealth v. Crosscup, 369 Mass. 228, 231–233, 339 N.E.2d 731 (1975). See also Model Jury Instructions for Use in the District Court § 5.200 (2009). Pursuant to G.L. c. 90, § 22 ( d ), 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.” Commonwealth v. Koney, 421 Mass. 295, 303–304, 657 N.E.2d 210 (1995). See Commonwealth v. Crosscup, supra at 239–240, 242, 339 N.E.2d 731.⁸ “[T]he defendant need not himself have taken physical hold of the notice in order to be found to have received it within the meaning of [ G.L. c. 90, § 23].” Id. at 239, 339 N.E.2d 731. Here, the Commonwealth presented at trial the registry certificate to prove that the defendant was notified of his license revocation.

The Sixth Amendment, applicable to the States through the Fourteenth Amendment to the United States Constitution, see Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ( Crawford ), the United States Supreme Court held that the out-of-court “[t]estimonial” statements of a witness are inadmissible at trial except where the witness is unavailable and the defendant had a prior opportunity for cross-examination. The Court stated that the confrontation clause applies to “witnesses” against the accused, “in other words, those who ‘bear testimony.’ ” Id. at 51, 124 S.Ct. 1354, quoting 2 N. Webster, An American Dictionary of the English Language (1828). “ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford v. Washington, supra, quoting Webster, supra. Although the Supreme Court declined to articulate a “comprehensive definition” of “testimonial” statements, Crawford, supra at 68, 124 S.Ct. 1354, it did describe various formulations of the “core class” of such statements:

“[ (1) ] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[; (2) ] ‘extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; or (3) ] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Id. at 51–52, 124 S.Ct. 1354, quoting White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1...