Commonwealth v. Shangkuan

• Decision Date: 28 February 2011
• Docket Number: No. 09–P–339.,09–P–339.
• Citation: 78 Mass.App.Ct. 827,943 N.E.2d 466
• Parties: COMMONWEALTHv.Spencer SHANGKUAN.
• Court: Appeals Court of Massachusetts

78 Mass.App.Ct. 827
943 N.E.2d 466

COMMONWEALTH
v.
Spencer SHANGKUAN.

No. 09–P–339.

Appeals Court of Massachusetts, Hampshire.

Argued Dec. 15, 2009.Decided Feb. 28, 2011.

[943 N.E.2d 468]

Mary H. Patryn & Ryan E. Alekman, Springfield, for the defendant.Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth.Present: GREEN, RUBIN, & WOLOHOJIAN, JJ.WOLOHOJIAN, J.

[78 Mass.App.Ct. 827] A District Court judge, pursuant to Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004), has reported the following question: “Can the commonwealth prove that the defendant was served a G.L. c. 209A [order] by the return of service filed by an out of state law enforcement officer without direct testimonial evidence that the defendant was in fact the person served?” The report subsumes two distinct questions: first, does the completed return of service form fall within an exception to the hearsay rule and, second, if so, is it testimonial for purposes of the confrontation clause of the Sixth Amendment to the United States Constitution. We answer the reported [78 Mass.App.Ct. 828] question, “Yes,” and hold that a c. 209A completed return of service is admissible under the public records exception to the hearsay rule and that it is nontestimonial for purposes of the confrontation clause.

Background. We recite the facts as reported by the judge below, supplemented by the undisputed facts contained in the record. The defendant was the subject of a G.L. c. 209A restraining order issued on December 8, 2006. The defendant's address, as reflected in the order, was in Princeton, New Jersey. In large letters prominently placed towards the top of the first page of the order appears the following: “VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both.” In addition

[943 N.E.2d 469]

to the provisions directed to the defendant, the order contained the following “Notice to Law Enforcement”:

“An appropriate law enforcement officer shall serve upon the Defendant in hand a copy of the Complaint and a certified copy of this Order (and Summons), and make return of service to this Court. If this box is checked [ ]], ¹ service may instead be made by leaving such copies at the Defendant's address shown on Page 1 but only if the officer is unable to deliver such copies in hand to the Defendant.” ²

On the back of the order was a preprinted return of service ³ that was completed and signed on December 10, 2006, by a [78 Mass.App.Ct. 829] New Jersey police officer.^4,5 The officer certified that he had served a copy of the order on the defendant by delivering it to him in hand. The completed return of service was then transmitted to the clerk of the court, as required by the order and by G.L. c. 209A, § 7 (see note 2, supra ).

The defendant is alleged to have violated the order on December 18, 2006, and a criminal complaint issued two days later charging the defendant with violation of G.L. c. 209A, § 7. The question that appears at the beginning of this opinion has been reported to us in the context of the criminal prosecution.

Discussion. “To establish a violation of G.L. c. 209A, § 7, the Commonwealth must [prove beyond a reasonable doubt] that (1) a valid G.L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order.” Commonwealth v. Griffen, 444 Mass. 1004, 1005, 828 N.E.2d 14 (2005), quoting from Commonwealth v. Silva, 431 Mass. 401, 403, 727 N.E.2d 1150 (2000). We are concerned here with the third element, because the Commonwealth seeks to use the return of service as evidence the defendant knew of the order. The defendant argues that the return is inadmissible hearsay and that its introduction, absent an opportunity to cross-examine the New Jersey police officer who signed it, violates his confrontation rights.

1. Hearsay. Although there may be instances where a return of service is

[943 N.E.2d 470]

not being offered for its truth, that is not the case here. Here, the Commonwealth seeks to introduce the certificate to prove that the order was served on the defendant in hand on December 10, 2006. If used in this manner, the return is hearsay, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Mass. G. Evid. § 801(c) (2010).

[78 Mass.App.Ct. 830] Hearsay is “generally inadmissible unless it falls within an exception to the hearsay rule.” Commonwealth v. Rice, 441 Mass. 291, 305, 805 N.E.2d 26 (2004). See Mass. G. Evid. § 802. The Commonwealth, relying on G.L. c. 233, § 76,⁶ and Mass.R.Crim.P. 40, 378 Mass. 917 (1979),⁷ argues that the return of service falls within the official or public records exception to the hearsay rule because the return is maintained by the court. This argument fails because the statute and the rule both pertain to the authenticity of a copy of an otherwise admissible public record. Authenticity is a precondition to, not the equivalent of, admissibility. See Mass. G. Evid. § 901; Brodin & Avery, Massachusetts Evidence § 9.2 (8th ed. 2007). The fact that a document is authentic as an official record does not mean that the document is admissible under the official or public records exception to the hearsay rule. See Jacobs v. Hertz Corp., 358 Mass. 541, 544, 265 N.E.2d 588 (1970) (a statement in an official court record is not admissible simply because it has been authenticated as an official record; the underlying statement must be otherwise admissible).

Instead, we must determine whether the statement contained in the return of service (to wit, that the defendant was served in hand on a particular day) falls within the official or public records exception to the hearsay rule because it is a “record of a primary fact, made by a public officer in the performance of official duty.” ⁸ [78 Mass.App.Ct. 831] Commonwealth v. Slavski, 245 Mass. 405, 417, 140 N.E. 465 (1923). See Mass. G. Evid. § 803(8)(A). “The duty may be imposed by a foreign law, and the official may be a foreign official. The duty need not be imposed directly by statute.” Brodin & Avery, Massachusetts Evidence, supra at § 8.12.1, at 544. Statements of opinion or judgment are not admissible under the exception. See Commonwealth v. Slavski, supra.

Here, the return of service was clearly prepared by an official in the performance of an official duty. The order itself directed the applicable law enforcement officer to serve the defendant in hand and to “make return of service to this Court.” Likewise, G.L. c. 209A, § 7, requires the appropriate law enforcement agency to serve the subject of a c. 209A order and to “promptly make its return of service to the

[943 N.E.2d 471]

court.” Whether these respective authorities are sufficient of their own force to require compliance by a foreign police officer is a question we need not answer because the full faith and credit provision of the Violence Against Women Act, 18 U.S.C. § 2265 (2006), requires that a protective order of one State be accorded full faith and credit by law enforcement officers of the other States “as if it were” an order of their own. 18 U.S.C. § 2265(a). New Jersey's statute governing protective orders provides that police officers “shall” serve such orders when they are issued by the courts of New Jersey.⁹ Taken together, these statutory provisions demonstrate that the return of service is a “record of a primary fact, made by a public officer in the performance of official duty,” Commonwealth v. Slavski, 245 Mass. at 417, 140 N.E. 465, such that it falls within the official or public records exception to the hearsay rule. The certificate simply records the occurrence of an action the officer was required by law to perform.

2. Confrontation. That the return of service is admissible as [78 Mass.App.Ct. 832] an official or public record does not answer the question whether its admission, absent live testimony or a prior opportunity to cross-examine the declarant, violates the confrontation clause. See Crawford v. Washington, 541 U.S. 36, 50–51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ( Crawford ). The confrontation clause applies to witnesses who “bear testimony” against the accused, regardless of whether their statements are admissible under the rules of evidence. Ibid. “ ‘Testimony’ ... is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact’ ” at trial. Id. at 51, 124 S.Ct. 1354, quoting from 2 Webster, An American Dictionary of the English Language (1828). Melendez–Diaz v. Massachusetts, ––– U.S. ––––, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009) ( Melendez–Diaz ) (same).

“Business 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.” ¹⁰ Id. at 2539–2540. However, documents “prepared specifically for use at [the defendant's] trial” are testimonial “[w]hether or not they qualify as business or official records.” Id. at 2540. Thus, the fact that the return of service in this case is a public record does not of itself establish that it is not “testimonial” for purposes of the confrontation clause. Rather, the document, in addition to being a public record, must not have been created for the purpose of

[943 N.E.2d 472]

establishing or proving some fact at the defendant's criminal trial.

With the exception of some ex parte documents, we are unaware of any document filed with, or issued by, our courts that is not required to be served by, or on, the parties. Whether the proceeding is criminal or civil, the fair administration of justice requires that parties and the court be advised of the service of pleadings and filings. Our...