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14-P-1902 Appeals Court
COMMONWEALTH vs. TITUS T. ROYAL.
No. 14-P-1902.
Suffolk. December 1, 2015. - March 7, 2016.
Present: Rubin, Maldonado, & Massing, JJ.
Motor Vehicle, License to operate. License. Registrar of Motor
Vehicles, Records. Evidence, Hearsay, Business record.
Notice. Practice, Criminal, Hearsay.
Complaint received and sworn to in the Charlestown Division
of the Boston Municipal Court Department on December 11, 2013.
The case was heard by Lawrence E. McCormick, J.
Rachel T. Rose for the defendant.
Priscilla Guerrero (Cailin M. Campbell, Assistant District
Attorney, with her) for the Commonwealth.
MASSING, J. The defendant, Titus T. Royal, appeals from
his conviction, after a bench trial in the Charlestown Division
of the Boston Municipal Court Department, of driving with a
suspended license in violation of G. L. c. 90, § 23. He claims
that the Commonwealth relied on inadmissible hearsay evidence to
2
prove the element of license suspension, that the Commonwealth
failed to prove that the registry of motor vehicles (registry)
mailed him notice of its intent to suspend his license, and that
the evidence was insufficient to sustain his conviction.
Because the Commonwealth's evidence of license suspension -- an
officer's testimony that he "ran . . . the [defendant's
driver's] license number through the Registry of Motor Vehicles"
and it "came with a status of suspended" -- was inadmissible
hearsay, we reverse the conviction.
Background. On the morning of November 4, 2013, State
Trooper Jeffrey Morrill, who was the only witness to testify at
trial, stopped the car the defendant was driving for having an
expired registration decal. Using the laptop computer in his
cruiser, Morrill "activated C[J]IS"1 and ran the car's
registration and the defendant's driver's license through the
registry database. Over the defendant's objection that the
testimony was hearsay, Morrill stated, "The registration came
back as status expired, non-renewable. And the Massachusetts
license came with a status of suspended."
In addition, the Commonwealth introduced in evidence four
certified registry documents. These included two notices of the
registry's intent to suspend the defendant's license, both dated
1
The criminal justice information system. See G. L. c. 6,
§ 167A(c).
3
August 5, 2013, addressed to the defendant. The first notice
informed the defendant that on the basis of "3 Surchargeable
Events," the registry would suspend his license on November 3,
2013, unless he timely completed a driver retraining program.2
The second notice informed him that his license would be
suspended on September 4, 2013, if he failed to pay $300 owed
for delinquent citations and fines.
Each notice was accompanied by a corresponding registry
document entitled "USPS Mailing Confirmation." Each mailing
confirmation record included the printed statement, "CREATED BY
RMV ON: 08/05/2013" -- the same date as the notices. The
confirmation associated with the first notice further indicated,
"RECEIVED BY USPS: 08/06/2013 21:03, AT POST OFFICE: 02205."
The second mailing confirmation similarly indicated that it was
"received" by "USPS" on "08/07/2013 19:59" at the same post
office.
The four documents were certified by the registrar of motor
vehicles (registrar) under G. L. c. 90, § 22, as being "true
copy(s) of the driving history and notice(s) of
suspension/revocation as appearing in the registrar's records."
2
Under G. L. c. 175, § 113B, if a driver has three
surchargeable incidents within a twenty-four month period --
defined as at-fault accidents, traffic law violations, or
comprehensive coverage claims, see 211 Code Mass. Regs. § 134.03
(2003) -- the driver's license will be suspended unless the
driver completes a driver education program within ninety days.
4
The registrar further attested, "I hereby certify that on
01/09/14 his/her license or right to operate was reinstated in
the Commonwealth of Massachusetts."
Discussion. 1. License suspension. To prove the crime of
operating a motor vehicle after license revocation or
suspension, the Commonwealth must prove beyond a reasonable
doubt that (1) the defendant operated a motor vehicle, (2) that
at the time of operation the defendant's license had been
revoked or suspended, and (3) that the defendant received notice
that his license had been suspended or revoked.3 See G. L.
c. 90, § 23; Instruction 5.2 of the Criminal Model Jury
Instructions for Use in the District Court (2013).4 The
defendant argues that the Commonwealth's evidence of the second
3
Notice of the registry's intention to suspend is adequate
evidence of the notice element as it "conveys notice of imminent
registry action." Commonwealth v. Crosscup, 369 Mass. 228, 231
& n.2 (1975).
4
The defendant argues that "the Commonwealth did not
present evidence sufficient to find beyond a reasonable doubt
that [the defendant's] license had been suspended pursuant to
a specified statutory section on November 4, 2013." If the
defendant had been charged under the third paragraph of G. L.
c. 90, § 23, the defendant would be correct in arguing that
the Commonwealth was required to prove the additional element
that his license was suspended or revoked "pursuant to a
violation of one of the specified statutory sections."
Commonwealth v. Deramo, 436 Mass. 40, 50 (2002). However,
since the defendant was charged under the first paragraph of
G. L. c. 90, § 23, for operating a motor vehicle with a
suspended license, second offense, the Commonwealth was
required to prove only the above-listed three elements. The
record before us is silent regarding the disposition of the
subsequent offense aspect of the charge.
5
element -- that the defendant's license was suspended -- was
inadmissible hearsay. We agree.
"Hearsay is a statement, other than one made by the
declarant while testifying at trial or hearing, offered in
evidence to prove the truth of the matter asserted."
Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27 (2000). See
Mass. G. Evid. § 801(c) (2015). In Randall, supra, to prove
that the defendant was the driver of a van that was involved in
a gas station burglary, a police officer testified "that a
registry check of the license plate on the van indicated that
the van belonged to the defendant." We held that the
substantive use of this testimony to prove ownership of the van
was improper and warranted reversal of the conviction. Id. at
28. Morrill's testimony that a registry check of the
defendant's license indicated that the license had been
suspended, used to prove that very fact, is indistinguishable
from the hearsay testimony held to be impermissible in Randall.
The Commonwealth contends that Morrill's testimony
regarding the result of his registry record check was not
hearsay "because it was not a statement made by a person; it was
a record." This contention has some support in our recent
cases. See Commonwealth v. Thissell, 457 Mass. 191, 197 n.13
(2010); Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327
(2009) (computerized mapping tool's measurement of distance does
6
not constitute "statement"); Commonwealth v. Perez, 89 Mass.
App. Ct. 51, 56 (2016), quoting from Mass. G. Evid. § 801(a), at
260 (2015) ("'Statement' means a person's oral assertion,
written assertion, or nonverbal conduct" [emphasis added]).5
When considering the potential hearsay implications of
computer records, courts have drawn a distinction between
"computer-generated" and "computer-stored" records. See, e.g.,
Thissell, supra; People v. Holowko, 109 Ill. 2d 187, 191-192
(1985); State v. Armstead, 432 So. 2d 837, 839-840 (La. 1983);
State v. Kandutsch, 336 Wis. 2d 478, 501-506 (2011). Computer-
generated records "are those that represent the self-generated
record of a computer's operations resulting from the computer's
programming." Kandutsch, supra at 503-504. "Because computer-
generated records, by definition, do not contain a statement
from a person, they do not necessarily implicate hearsay
concerns." Thissell, supra. Computer-stored records, by
contrast, "constitute hearsay because they merely store or
maintain the statements and assertions of a human being."
Kandutsch, supra at 503.
The distinction between computer-stored and computer-
generated records depends on the manner in which the content was
created -- by a person or by a machine. Computer-generated
5
The definition of "statement" in Mass. G. Evid. § 801(a)
is identical to Fed. R. Evid. 801(a).
7
records are the result of computer programs that follow
designated algorithms when processing input and do not require
human participation. See Kerr, Computer Records and the Federal
Rules of Evidence, 49 U.S. Attorneys' Bull. 25, 26 (Mar. 2001).
Examples include automated teller machine receipts, log-in
records from Internet service providers, and telephone records.
Ibid. Computer-stored records generally refer to documents that
contain writings of a person or persons that have been reduced
to electronic form, such as electronic mail messages, online
posts, and word processing files. Ibid.
Although not using the term "computer-generated," the
United States Court of Appeals for the Ninth Circuit has held
that assertions made by a machine "without any human
intervention" are not hearsay because "there's no statement as
defined by the hearsay rule." United States v. Lizarraga-
Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015). Accordingly, the
court held that a "tack" placed on a map and automatically
labeled with global positioning system coordinates by Google
Earth was not hearsay. Id. at 1109-1110. The court further
observed that concerns regarding the accuracy and reliability of
"machine statements" "are addressed by the rules of
authentication, not hearsay." Id. at 1110.
Some computer records may be classified as hybrids,
"containing both computer-stored records and 'human statements,'
8
as well as computer-generated data." Thissell, supra. Hybrid
documents present both hearsay and authentication concerns.
Ibid.
In this case, the discussion of the defendant's hearsay
objection at trial did not include details explaining how
registry records are created, or how police officers gain access
to these records electronically through CJIS. In our view,
Morrill's computer check underlying his testimony that the
defendant's license "came with a status of suspended" is unlike
the introduction in evidence of automated bank records, see
Perez, supra, or computer-generated mapping information from
electronic monitoring devices, see Thissell, supra at 196-197;
Kandutsch, supra at 501-506, in that human action was required
both to create and retrieve this computer-stored information.6
The Commonwealth has not persuaded us that Randall, 50 Mass.
6
In Commonwealth v. Norman, 87 Mass. App. Ct. 344, 345
(2015), as part of its proof that the defendant had received
notice that his license had been suspended as the result of a
conviction of operating a motor vehicle under the influence of
alcohol (OUI), the Commonwealth offered the testimony of a
registry branch manager concerning the registry's "system" of
providing notice of license suspension. "Under that system,
once an OUI conviction is entered into the relevant database, a
suspension notice is automatically generated, and employees in
the [registry] mailroom then place the notice in an envelope and
deliver it to the post office for mailing" (emphasis supplied).
Ibid. If such testimony had been offered in the case before us,
it would tend to show that the registry database is at best a
hybrid, comprising computer-stored records of human statements
regarding triggering events as well as computer-generated
notices.
9
App. Ct. 27-28, was wrongly decided because registry records are
computer-generated and free from hearsay concerns.
We note that the Commonwealth could have proven the element
of license suspension without implicating the hearsay rules if
it had introduced a properly certified copy of a registry
driving history record showing that the defendant's license had
been suspended. "[Registry] 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.
Ellis, 79 Mass. App. Ct. 330, 335 (2011), quoting from
Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 171 n.3
(2010). See G. L. c. 90, § 30 (providing for admissibility of
certified copies of registry records).
The use of Morrill's hearsay testimony was prejudicial
error warranting reversal of the conviction. We review for
prejudicial error because, contrary to the defendant's
suggestion, the introduction of the registry records through
Morrill did not rise to the level of constitutional error.
Registry records of driver history are not "testimonial" and do
not raise Sixth Amendment to the United States Constitution
confrontation clause concerns. Commonwealth v. Ellis, supra at
335-336, citing Commonwealth v. McMullin, 76 Mass. App. Ct. 904,
904 (2010).
10
Nonetheless, the improperly admitted hearsay was the only
direct evidence that the Commonwealth offered as proof of an
essential element of the crime, and it served as a crucial
foundation for the guilty finding.7 We cannot say that the
evidence "did not influence the jury, or had but very slight
effect." Randall, supra at 28, quoting from Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994).8
2. Notice of suspension. Because the issue may recur at
any retrial, we address the defendant's additional contention
that the registry's mailing confirmation documents were
inadmissible under Commonwealth v. Parenteau, 460 Mass. 1
(2011).
7
Although the defendant received two notices that the
registry intended to suspend his license if he did not take
certain steps before certain deadlines, the Commonwealth
presented no evidence to indicate that the defendant did not
comply or that the registry actually followed through with the
suspension. The Commonwealth does not argue that proof of
suspension could be inferred from the part of the registrar's
certification stating that "on 01/09/14 his/her license or right
to operate was reinstated." For the reasons discussed infra,
this statement constituted inadmissible testimonial hearsay.
See Commonwealth v. Parenteau, 460 Mass. 1, 8-9 (2011); Ellis,
supra at 333-334; Commonwealth v. Lopes, 85 Mass. App. Ct. 341,
352 (2014).
8
We reject the defendant's argument that the evidence
offered at trial was insufficient to sustain his conviction.
Sufficiency of the evidence "is to be measured upon that which
was admitted in evidence without regard to the propriety of the
admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014),
quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87,
98 (2010).
11
In Parenteau, to prove the element that the defendant
received notice that his license was suspended or revoked, the
Commonwealth introduced a copy of the notice of suspension
accompanied by the registrar's attestation that the notice had
been mailed on the date shown on the notice. Id. at 4.9
Observing that the registrar's certification was "a solemn
declaration made by the registrar for the purpose of
establishing the fact that notice of license revocation was
mailed to the defendant . . . , and, by inference was received
by him," id. at 8, the court held that the certification was
testimonial hearsay and violated the defendant's Sixth Amendment
right to confrontation in the absence of live testimony from a
registry witness. Id. at 8-9.
The court noted that a contemporaneous business record
showing that the notice had been mailed would not have raised
the same concerns. "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." Id. at 10. The mailing
confirmation records introduced in this case appear to be such
9
Evidence that the registry mailed the notice is prima
facie evidence that the defendant received the notice. See
Commonwealth v. Crosscup, 369 Mass. 228, 239-240 (1975);
Parenteau, supra at 5-6 & n.8. "The Commonwealth need not prove
that the defendant in fact received that notice; proof that the
[registry] properly mailed it is sufficient." Commonwealth v.
Norman, 87 Mass. App. Ct. 344, 346 n.4 (2015).
12
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.
Thus, the Commonwealth offered specific proof that the
notices were mailed to the defendant; it did not rely on
evidence of the registry's "regular practice." Contrast
Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014). The
defendant points to certain apparent discrepancies in the
mailing confirmation records, for example, that they attempt "to
memorialize actions that had not yet occurred -- both documents
were created before" the post office "received" them -- but such
cavils go to weight rather than admissibility.10 As the mailing
confirmation records permit, but do not require, the trier of
fact to find that the defendant received notice, he is entitled
to introduce relevant evidence and argument calling his receipt
of notice into question. See Commonwealth v. Crosscup, 369
Mass. 228, 242 (1975); Parenteau, supra at 6 n.8.
Judgment reversed.
Finding set aside.
10
To eliminate future litigation regarding this apparent
discrepancy, the registry should consider revising its mailing
confirmation template to replace the words "received by USPS"
with the words "delivered to."