100 N.E.3d 767
Mass. App. Ct.2018Background
- On July 3, 2013, Andres Santana struck a green sedan while riding a motorcycle in Lynn; he briefly saw the driver (white tank top, tattooed left arm) and later identified the defendant as the driver from a photographic array and in court.
- Police found a bumper with a license plate at the scene; a green 1997 Geo Prism with matching rear-side damage and that plate (registered to defendant) was found nearby days later.
- Defendant reported the Prism stolen two days after the crash; he later told police he had parked it in Lynn on July 3 and denied involvement.
- Registry records showed the defendant’s operator’s license had been suspended effective June 9, 2013; Commonwealth introduced a May 10, 2013 suspension notice and a contemporaneous RMV “USPS MAILING CONFIRMATION” bearing the same USPS ID.
- Defendant was tried in District Court and convicted of leaving the scene causing injury and of operating with a suspended license; he appealed, raising four principal claims (mailing confirmation admissibility/confrontation/authentication, sufficiency of notice evidence, suppression of photographic-array ID, and omission of Gomes high‑stress jury language).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of RMV mailing confirmation (Confrontation Clause — purpose of creation) | RMV: contemporaneous mailing confirmation is a non‑testimonial business/public record created in regular course and admissible. | McEvoy: mailing confirmation was created after Parenteau for trial use and thus testimonial; admission violated confrontation. | Court: mailing confirmations are contemporaneous administrative records, not testimonial; Parenteau distinguished; admission did not violate confrontation. |
| Use of mailing confirmation to prove element (notice) | Commonwealth: certified mailing confirmation is prima facie evidence of mailing and receipt — admissible to prove notice element. | McEvoy: confrontation prohibits using such records to prove an element of the offense. | Court: using attested RMV records to prove notice is permissible; precedent (Weeks/Kirby) allows using certified public records to prove elements like prior convictions/notice. |
| Authentication of RMV records | Commonwealth: registrar’s attestation attached to the notice and mailing confirmation sufficiently authenticates them under G.L. c.233/90 schemes. | McEvoy: attestation did not explicitly reference the mailing confirmation; insufficient authentication. | Court: attestation and physical attachment suffice; form need not be exact; authentication proper. |
| Photographic-array identification (suppression) | Commonwealth: array was not unnecessarily suggestive; flaws went to weight not admissibility; judge properly denied suppression; jury instructed to treat departures with caution. | McEvoy: array was unduly suggestive (non‑double blind, procedural departures, fillers, simultaneous display, confirmatory feedback, poor preservation) and unreliable. | Court: no due‑process violation and no abuse of discretion; asserted defects affected weight, not admissibility; in‑court ID admissible. |
| Jury instruction (Gomes high‑stress language omitted) | Commonwealth: remaining instructions covered observational factors; omission was not prejudicial. | McEvoy: omission of Gomes proviso on high stress undermined jury assessment of ID reliability. | Court: assuming error, omission did not create substantial risk of miscarriage of justice; defense emphasized stress in closing; other instruction covered observation factors. |
Key Cases Cited
- Parenteau v. Commonwealth, 460 Mass. 1 (Mass. 2011) (attestation made after complaints issued was testimonial; explained limits on registrar attestations).
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (business records produced for use at trial may be testimonial).
- Commonwealth v. Zeininger, 459 Mass. 775 (Mass. 2011) (official certification records prepared as part of regulatory administration are nontestimonial).
- Commonwealth v. Royal, 89 Mass. App. Ct. 168 (Mass. App. Ct. 2016) (upheld admissibility of RMV mailing confirmations created post-Parenteau).
- Commonwealth v. Deramo, 436 Mass. 40 (Mass. 2002) (statutory requirement that notice be mailed and registrar’s certificate is prima facie evidence of mailing/receipt).
- Commonwealth v. Weeks, 77 Mass. App. Ct. 1 (Mass. App. Ct. 2010) (certified public records may be nontestimonial and admissible to prove elements like prior convictions).
- Commonwealth v. Thomas, 476 Mass. 451 (Mass. 2017) (discusses sequential v. simultaneous photo display; departures can affect weight and may warrant jury instruction to evaluate identification with particular care).
- Commonwealth v. Gomes, 470 Mass. 352 (Mass. 2015) (provisional eyewitness identification instructions, including language on high stress and factors affecting accuracy).