Commonwealth v. Weeks

• Decision Date: 10 June 2010
• Docket Number: No. 08-P-1175.,08-P-1175.
• Citation: 927 N.E.2d 1023,77 Mass.App.Ct. 1
• Parties: COMMONWEALTHv.Rupert A. WEEKS.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 1

927 N.E.2d 1023

COMMONWEALTHv.Rupert A. WEEKS.

No. 08-P-1175.

Appeals Court of Massachusetts Plymouth.

Argued Oct. 16, 2009.

Decided June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Kathleen M. O'Connell, for the defendant.

Kristin Freeman, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, KATZMANN, & RUBIN, JJ.

KATZMANN, J.

The defendant, Rupert A. Weeks, was found guilty by a Superior Court jury of unlawful possession of a firearm without a license, in violation of G.L. c. 269, § 10( a ), and not guilty of unlawful possession of ammunition without a firearm identification card (G.L. c. 269, § 10[ h ] ), and assault by means of a dangerous weapon (G.L. c. 265, § 15B[ b ] ). He then waived his right to a jury trial on the charge of carrying a firearm without a license, subsequent offense. A Superior Court judge found the defendant guilty on that charge. The defendant now appeals from his conviction of possession of a firearm under G.L. c. 269, § 10( a ), and possession of a firearm, subsequent offense, under G.L. c. 269, § 10( d ).

The defendant contends that the judge's admission of docket sheets to prove prior convictions during the subsequent offense trial violated his confrontation rights under the Sixth Amendment to the United States Constitution. He also raises various trial issues.

1. Certified docket sheets and confrontation clause. During the jury-waived trial on the subsequent offense charge, the Commonwealth introduced two certified copies of conviction (the certified convictions) to prove that the defendant had been convicted of unlawful possession of a firearm on two prior occasions.¹ The defendant's trial counsel objected on the grounds that introduction of the certified convictions violated his Sixth Amendment confrontation rights as recognized in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ( Crawford ). The judge overruled the objection, holding that the certified convictions complied with the requirements of G.L. c. 233, § 76, and were admissible under that statute.² We review the judge's decision to determine if an error occurred and whether that error was “harmless beyond a reasonable doubt.” Commonwealth v. Rosario, 430 Mass. 505, 511, 721 N.E.2d 903 (1999), quoting from Commonwealth v. Miles, 420 Mass. 67, 73, 648 N.E.2d 719 (1995). See Commonwealth v. Vasquez, 456 Mass. 350, 356, 923 N.E.2d 524 (2010).

In the aftermath of Crawford, this court articulated two reasons in support of our holding that docket sheets did not trigger the right of confrontation. See Commonwealth v. Crapps, 64 Mass.App.Ct. 915, 916, 835 N.E.2d 275 (2005). First Commonwealth v. Verde, 444 Mass. 279, 280, 827 N.E.2d 701 (2005), held that “a drug certificate is akin to a business record and the confrontation clause is not implicated by this type of evidence.” We ruled that a docket sheet, like a drug certificate, is a business record and thus does not trigger the confrontation clause. Commonwealth v. Crapps, supra. Second, we determined that a docket sheet was not testimonial “because authors of prior conviction records are not witnesses against criminal defendants.” Id. at 916 n. 3, 835 N.E.2d 275, citing People v. Shreck, 107 P.3d 1048, 1060-1061 (Colo.Ct.App.2004) (docket sheets are business records that are explicitly exempt from the Crawford standard). See Commonwealth v. Maloney, 447 Mass. 577, 591-592, 855 N.E.2d 765 (2006) (holding that G.L. c. 278, § 11A, allowing record of conviction to serve as prima facie evidence of prior conviction, did not violate confrontation clause).

In June, 2009, the United States Supreme Court overturned Commonwealth v. Verde, supra, and held that the admission of certificates of drug analysis violated a criminal defendant's Sixth Amendment confrontation rights. See Melendez-Diaz v. Massachusetts, --- U.S. ----, ----, 129 S.Ct. 2527, 2542, 174 L.Ed.2d 314 (2009) ( Melendez-Diaz ). The Supreme Court stated that testimonial hearsay includes affidavits 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 2531, quoting from Crawford, 541 U.S. at 52, 124 S.Ct. 1354. The Court focused on the fact that “under Massachusetts law the sole purpose of the [drug certificate] affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance.” Id. at 2532, quoting from G.L. c. 111, § 13.

The Commonwealth here argues that the certified convictions are not testimonial hearsay because they qualify as business records. In Melendez-Diaz, supra at 2538, the Supreme Court stated that “[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status.... But that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” The Court also clarified that “public records are generally admissible absent confrontation ... 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.” Id. at 2539-2540

Therefore, in order to determine whether the certified convictions are testimonial, we must ascertain whether certified records of convictions are created for the “administration of an entity's affairs” or “for the purpose of establishing or proving some fact at trial.” Certified records of convictions are created to establish the fact of adjudication, so as to promote accountability to the public regarding official proceedings and public knowledge of the outcomes of those proceedings. See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 606, 737 N.E.2d 859 (2000) (criminal court records open to public under the First Amendment as a “check” on the courts). See also Roe v. Attorney Gen., 434 Mass. 418, 435 & n. 26, 750 N.E.2d 897 (2001) ( “[R]ecords of conviction are public records that are constitutionally required to be public”), citing Globe Newspaper Co. v. Fenton, 819 F.Supp. 89, 100-101 (D.Mass.1993) (First Amendment right to records of convictions). They are used for a number of administrative purposes, including background checks and parole records. See G.L. c. 6, §§ 172C, 172D, 172E, 172F. Unlike drug certificates, docket sheets are not prepared for an upcoming case and are not testimonial since the authors are not witnesses against the criminal defendant.³ See Commonwealth v. Martinez-Guzman, 76 Mass.App.Ct. 167, 171 n. 3, 920 N.E.2d 322 (2010) (“Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, [Registry of Motor Vehicles] records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G.L. c. 233, § 78, as well as pursuant to G.L. c. 233, § 76”); Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904-905, 923 N.E.2d 1062 (2010) (admission of court records and record of Registry of Motor Vehicles records did not violate the defendant's Sixth Amendment right of confrontation). See also Commonwealth v. Bowden, 447 Mass. 593, 599, 855 N.E.2d 758 (2006) (no difference between Registry of Motor Vehicles records and court records). Contrast Commonwealth v. Nardi, 452 Mass. 379, 393, 893 N.E.2d 1221 (2008), quoting from Commonwealth v. Slavski, 245 Mass. 405, 417, 140 N.E. 465 (1923) (autopsy reports prepared by “public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions” are inadmissible testimonial hearsay). ⁴

Furthermore, the docket sheets are not testimonial under the two-part inquiry set forth in Commonwealth v. Gonsalves, 445 Mass. 1, 3, 833 N.E.2d 549 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2980, 165 L.Ed.2d 990 (2006). First, the docket sheets are not “testimonial per se” because they are not “made in a formal or solemnized form (such as a deposition, affidavit, confession, or prior testimony) or in response to law enforcement interrogation.” See Commonwealth v. Simon, 456 Mass. 280, 297, 923 N.E.2d 58 (2010), citing Commonwealth v. Gonsalves, supra at 13, 833 N.E.2d 549. Second, the docket sheets are not “testimonial in fact” because, as we have discussed above, given the purposes for which they are created, and in light of the fact that they are not created for the purpose of any pending litigation, it would not reasonably be anticipated that they would be used against an accused. Compare Commonwealth v. Avila, 454 Mass. 744, 763 n. 20, 912 N.E.2d 1014 (2009) (hearsay statement in expert report made for purpose of upcoming litigation is testimonial in fact) with Commonwealth v. Simon, 456 Mass. 280, 299, 923 N.E.2d 58 (2010) (hearsay statement by victim to 911 dispatcher for purpose of “resolving the present emergency and not at conducting an investigation” not testimonial in fact), quoting Commonwealth v. Nesbitt, 452 Mass. 236, 248, 892 N.E.2d 299 (2008), and Commonwealth v. Linton, 456 Mass. 534, 550, 924 N.E.2d 722 (2010) (hearsay statement by victim to father “to explain to her father what had happened” not testimonial in fact). In short, certified docket sheets of conviction are distinguishable from drug certificates and do not constitutionally require cross-examination.

Finally, the defendant points to Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), noted in Melendez-Diaz. There the United States Supreme Court discussed the confrontation clause question raised by the use of a record of prior conviction, as presented in Kirby:

“In Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), ... the Court considered Kirby's conviction for receiving stolen property, the evidence for which consisted, in part, of the records of conviction of three individuals who were found guilty of stealing the

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