Commonwealth v. Cueva

94 Mass.App.Ct. 780

118 N.E.3d 159

COMMONWEALTH

v.Arturo D. CUEVA.

No. 17-P-1144

Appeals Court of Massachusetts, Suffolk..

Argued September 11, 2018.

Decided February 12, 2019.

Joseph P. Lattimore, Boston, for the defendant.

Christopher Boutin, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Agnes, & Henry, JJ.

VUONO, J.

A jury in the Chelsea Division of the District Court Department convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense, and operating a motor vehicle after his license had been suspended as a result of a prior OUI conviction.¹ On appeal, the defendant claims that the judge erred by allowing in evidence unredacted records of the registry of motor vehicles (RMV), which contained multiple references to his refusal to submit to a chemical test.² He also contends that the evidence was insufficient to prove that he had notice his license had been suspended.

We conclude that the failure to redact the RMV records was error and requires us to reverse the judgment on the charge of OUI, third offense. We also conclude that the Commonwealth failed to prove notice to the defendant of his license suspension. Consequently, judgment must enter for the defendant on the charge of operating a motor vehicle after suspension.³

Background. 1. Facts. On August 28, 2015, at about 6:45 P.M. , Officer Steven Launie of the Revere police department was stopped in traffic on the American Legion Highway in Revere. The defendant's vehicle, a gray Toyota Camry, was in front of the officer. After a few minutes, the defendant pulled out of the lane of traffic onto the sidewalk and drove approximately 200 feet. Officer Launie activated his emergency lights and followed the defendant on the sidewalk, after which the defendant turned into the parking lot of a liquor store, where he parked without incident. Officer Launie parked behind the Camry, got out of his cruiser, approached the defendant's vehicle, and knocked on the driver's side window. The defendant initially held up his hand indicating that the officer should wait. Officer Launie knocked again and told the defendant to roll down the window. The defendant did not follow the officer's instruction. Instead, he opened the vehicle door. Officer Launie instructed him to close the door, and to remain in the automobile and roll down the window. The defendant complied, and Officer Launie requested his license and registration. The defendant produced a Massachusetts identification card and stated that his girl friend, who owned the vehicle, had his driver's license. He could not find the vehicle's registration, despite emptying the glove compartment in an effort to locate it. During this exchange, Officer Launie smelled the odor of alcohol and noticed that the defendant's movements were slow. After the defendant removed his sunglasses, the officer further observed that his eyes appeared glassy and bloodshot.

Suspecting that the defendant had been driving while under the influence of alcohol, Officer Launie decided to assess his sobriety and asked him to step out of the vehicle and perform certain tasks starting with the "one-leg stand" test. The defendant said that he would not be able to perform the task because he was not strong enough, and in fact, he performed poorly. Next, the defendant was not able to walk nine steps in a straight line and turn around. At this point, Officer Launie formed the opinion that the defendant was under the influence of alcohol and placed him under arrest. The defendant was transported to the police station by another officer, who had arrived on the scene to provide backup support.

The defendant did not testify at trial. His defense, developed through cross-examination and argument, was that his ability to drive was not impaired. He asserted, through counsel, that he drove on the sidewalk to avoid the traffic and that the sidewalk was wide enough for vehicles. He also claimed that vehicles often parked on that sidewalk and introduced evidence -- two photographs -- to corroborate his claim. Lastly, he argued that the Commonwealth failed to prove that on August 28, 2015, he knew his license had been suspended.

2. The docket sheet and RMV records. At trial, the prosecutor introduced a certified copy of a criminal docket sheet showing that the defendant had pleaded guilty to OUI in the Peabody Division of the District Court Department approximately seven months earlier on January 13, 2015.⁴ According to the docket, the defendant's license was suspended for two years from the date of the plea.⁵ Thereafter, the prosecutor introduced a copy of the defendant's RMV record, certified as of October 13, 2015. The exhibit consisted of fifteen pages. The first page contained the defendant's identifying information, including his photograph, name, address, date of birth, social security number, and driver's license number. The second page set forth the defendant's historical license information, including changes of address, and on the third page, the registrar certified that the documents were true copies, and that there had been no subsequent reinstatement of the defendant's license. The following six pages were copies of what appeared to be computer generated letters addressed to the defendant at addresses associated with his license. One of the letters, dated August 31, 2015 -- three days after the defendant's arrest in this case -- stated, "You are hereby notified that effective 08/28/15, your license/right to operate a motor vehicle is suspended for [three] years for CHEM TEST REFUSAL, pursuant to [ G. L. c. 90, § 24 (l) (f ) (l) ]." The letter specified that the "CHEM TEST REFUSAL," described as an "offense," occurred on August 28, 2015, in Revere (the date and location of the OUI offense at issue here). The letter informed the defendant of his right to a "Chemical Test Refusal" hearing within fifteen days of his arrest and set forth information about the location and timing of such hearings. Of the remaining five letters, three concerned the revocation or suspension of the defendant's license on prior occasions for a "CHEM TEST REFUSAL" on October 30, 2014, in Lynnfield,⁶ and a conviction of OUI on January 13, 2015.^{7 ,8} The remainder of the exhibit consisted of two copies of a computer printout of the defendant's three-page driving history. The printout contained the defendant's name, address, date of birth, and license number, followed by a list of entries, spanning twenty-two years, entitled "A COMPLETE LIST OF ALL OFFENSES AND ACTIONS ON FILE." The entries reflected that the defendant had committed numerous violations including, among other things, speeding, leaving the scene of property damage, and seat belt and lane violations. Two entries were related to the defendant's refusal to submit to a chemical test on October 30, 2014, and August 28, 2015, and specify that the defendant's driver's license had been suspended due to his "CHEM TEST REFUSAL" on both dates.

Discussion. 1. Refusal evidence. The defendant argues that evidence of his refusal to submit to a "CHEM TEST" violated his right against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. Because the defendant did not object to the admission of the RMV records, our review is limited to determining whether an error occurred and, if so, whether the error resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 103, 944 N.E.2d 1057 (2011).

"In Massachusetts it is settled that at a criminal trial, evidence that the defendant refused to consent to a blood test or analysis of breath to detect alcohol is not admissible." Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 370-371, 840 N.E.2d 963 (2006), citing Commonwealth v. Zevitas, 418 Mass. 677, 681-684, 639 N.E.2d 1076 (1994) ; Opinion of the Justices, 412 Mass. 1201, 1210-1211, 591 N.E.2d 1073 (1992). "Underlying the reasoning in this line of cases is the proposition that refusal evidence is testimonial in nature and that its admission violates the privilege against self-incrimination under the Declaration of Rights of the Massachusetts Constitution." Ranieri, supra at 371, 840 N.E.2d 963. See Commonwealth v. AdonSoto, 475 Mass. 497, 500, 58 N.E.3d 305 (2016).

The Commonwealth argues there was no reversible error for two reasons. First, the Commonwealth asserts that, because the prosecutor did not draw the jurors' attention to the various notations and entries in the RMV records that reflected the defendant's refusal to submit to a chemical test, the defendant was not harmed. This assertion is not supported by the record. The prosecutor referred to the documents at issue during her opening statement and relied upon them during her closing argument.⁹ More fundamentally, it matters not whether the prosecutor referred to the documents. We expect that jurors will review documents that are admitted in evidence without qualification, and we do not condone the notion that juries will consider only information to which they are specifically directed.

Second, the Commonwealth claims that, even if the jury did review the records, the jury would not have understood the meaning of the words "CHEM TEST" or "CHEM TEST REFUSAL." We reject this assertion. Almost two decades ago, we observed that "there is widespread public information and common knowledge about breathalyzer testing." Commonwealth v. Downs, 53 Mass. App. Ct. 195, 199, 758 N.E.2d 1062 (2001). Presumably, the public's knowledge of such testing has not declined. In any event, we have no difficulty concluding that jurors are capable of understanding that the term "CHEM TEST" refers to a breathalyzer or blood test.

The inclusion of documents that contain references to the defendant's refusal to submit to a chemical test, as here, implicates the same concerns that the Supreme Judicial Court addressed in Opinion of the Justices, 412 Mass. at 1209-1211...