Commonwealth v. Royal

89 Mass.App.Ct. 168

46 N.E.3d 583

COMMONWEALTH

v.Titus T. ROYAL.

No. 14–P–1902.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 1, 2015.

Decided March 7, 2016.

Rachel T. Rose for the defendant.

Priscilla Guerrero (Cailin M. Campbell, Assistant District Attorney, with her) for the Commonwealth.

Present: RUBIN, MALDONADO, & MASSING, JJ.

Opinion

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 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 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.” 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 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, 733 N.E.2d 579 (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, 733 N.E.2d 579. 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, 928 N.E.2d 932 (2010) ; Commonwealth v. Whitlock, 74 Mass.App.Ct. 320, 326–327, 906 N.E.2d 995 (2009) (computerized mapping tool's measurement of distance does not constitute “statement”); Commonwealth v. Perez, 89 Mass.App.Ct. 51, 56, 44 N.E.3d 886 (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, 93 Ill.Dec. 344, 486 N.E.2d 877 (1985) ; State v. Armstead, 432 So.2d 837, 839–840 (La.1983) ; State v. Kandutsch, 336 Wis.2d 478, 501–506, 799 N.W.2d 865 (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, 799 N.W.2d 865. “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, 799 N.W.2d 865.

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 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,’ 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, 928 N.E.2d 932 ; Kandutsch, supra at 501–506, 799 N.W.2d 865, 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.App.Ct. 27–28, 733 N.E.2d 579, 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, 945 N.E.2d 983 (2011), quoting from Commonwealth v. Martinez–Guzman, 76 Mass.App.Ct. 167, 171 n. 3, 920 N.E.2d 322 (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...