OUI Appeal - Mass. Court Bars Probation Records Under Confrontation Clause

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There appears to be a plethora of decisions recently involving the use and admission of certain records of prior convictions maintained by state agencies. Over the next 3 days, DAD will feature these decisions. Today's decision was provided by NCDD member Greg Oberhauser. In Commonwealth v. Ellis 10-P-419, the defendant was convicted of his fourth OUI offense.



The defendant's primary appellate challenges revolved around the admission of RMV records and of probation records of the South Boston Division of the District Court Department [FN1] during the subsequent offense trial. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) ("A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses"). By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.



On appeal, the court addressed the admissibility of exhibit A-1, the certified conviction record, the court stated:

"Certified court records of conviction are admissible under a hearsay exception for business records. Moreover, "[b]usiness and 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" (citing to Melendez-Diaz, 129 S.Ct. at 2539-2540)

With regard to exhibit A-2, the probation record, the court held:

"[T]here was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832."

With regard to exhibit A-6, the Registry of Motor Vehicles (RMV) records, the court held:

"The defendant objected at trial to, and challenges in this appeal, the introduction of the RMV records. The contention that there was a Melendez-Diaz error in admission of these registry records, which list motor vehicle registration history, is unavailing. The registration records are kept in the ordinary course of the business of the RMV and were admissible as business records and as summaries of records regularly maintained by the registry of motor vehicles. * * * Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV 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")."

In affirming the conviction, the trial court concluded that:

"Notwithstanding the Melendez-Diaz error in the admission of exhibit A-2, the probation certification, we conclude that the introduction was harmless beyond a reasonable doubt because a certified copy of the conviction was introduced as exhibit A-1."

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