Commonwealth v. Cueva

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17-P-1144 Appeals Court
COMMONWEALTH vs. ARTURO D. CUEVA.
No. 17-P-1144.
Suffolk. September 11, 2018. - February 12, 2019.
Present: Vuono, Agnes, & Henry, JJ.
Motor Vehicle, Operating under the influence, License to
operate. Due Process of Law, Blood alcohol test,
Suspension of driver's license, Notice. Practice,
Criminal, Prior conviction. Evidence, Blood alcohol test,
Prior conviction. Notice. Registrar of Motor Vehicles,
Records.
Complaint received and sworn to in the Chelsea Division of
the District Court Department on August 31, 2015.
The case was tried before Matthew J. Nestor, J.
Joseph P. Lattimore for the defendant.
Christopher Boutin, Assistant District Attorney, for the
Commonwealth.
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
2
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
1 An additional charge of reckless operation of a motor
vehicle was dismissed prior to trial.
2 The defendant also claims that testimony describing his
alleged refusal to perform the "one-leg stand" field sobriety
assessment constituted improper refusal evidence. The defendant
did not object to the testimony, and therefore, the trial judge
did not determine whether the defendant was unwilling to perform
the test or, instead, indicated that he was not capable of
performing the test. See Commonwealth v. Brown, 83 Mass. App.
Ct. 772, 778-779 (2013). We express no view on the
admissibility of the challenged testimony and presume the
question will be resolved by the judge at any retrial.
3 Given our conclusion, it is not necessary to address the
defendant's additional claim that the judge erred by not giving
an instruction informing the jury that evidence of the
defendant's prior OUI conviction could be used only to determine
whether the Commonwealth had proved the reason for the
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
defendant's license suspension. See Commonwealth v. Beaulieu,
79 Mass. App. Ct. 100, 102-103 (2011).
4
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
5
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
4 Although the issue has not been raised on appeal, we note
that the docket sheet was only partially redacted. The first
page of the exhibit contains handwritten notations reflecting a
violation of probation (denoted "VOP") on September 2, 2015. We
presume that further redaction will be required at any retrial.
See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).
5 In the box labelled "Sentence or other disposition" were
the following handwritten comments: "60 days H/C ss 2yr 1-12-
17," "2 yr loss of license," and "24Q Evaluation."
6
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
7
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,
6 The letter dated October 31, 2014, stated, "You are hereby
notified that effective 10/30/14, your license/right to operate
a motor vehicle is suspended for 180 days for CHEM TEST REFUSAL"
on October 30, 2014, in Lynnfield. This letter, like the one
dated August 31, 2015, informed the defendant of his right to a
hearing to contest the suspension.
7 The letter dated January 14, 2015, stated, "You are hereby
notified that effective 01/24/15, your license/right to operate
a motor vehicle is revoked for an additional 1 year for DWI
LIQUOR." The letter included a notation that the defendant's
license was already under suspension due to his "CHEM TEST
REFUSAL" on October 30, 2014. A virtually identical letter
dated January 21, 2015, extended the revocation, effective April
28, 2015.
8 In addition, in letters dated September 2 and September 3,
2015, respectively (after the incident at issue here), the
defendant was informed first that his license would be suspended
(effective ninety days from the date of the letter) for "an
indefinite period" as a result of an outstanding default or
arrest warrant, and then that the pending license suspension was
removed because the warrant had been cleared. See note 4,
supra.
8
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 (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 (2006),
citing Commonwealth v. Zevitas, 418 Mass. 677, 681-684 (1994);
Opinion of the Justices, 412 Mass. 1201, 1210-1211 (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
9
Massachusetts Constitution." Ranieri, supra at 371. See
Commonwealth v. AdonSoto, 475 Mass. 497, 500 (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
9 In her opening statement, the prosecutor stated that the
booking officer, Sergeant David Pressley, would "provide [the
jury with] information that connects the dots between the series
of paperwork that [the Commonwealth] will be admitting as
exhibits. He will be providing pieces of that puzzle that . . .
will then connect the defendant to the paperwork documenting the
fact that that was the reason why his license was suspended."
Later, in her closing argument, the prosecutor referred to
individual pages of the exhibits, including the RMV letters, and
stated that the documents "explain why [the defendant's] license
is suspended." While the prosecutor likely was attempting to
draw the jury's attention to the defendant's prior OUI
conviction as the basis for the license suspension, as we have
noted, the exhibits also indicate that the defendant's license
was suspended for his refusal to submit to a chemical test.
10
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 (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.
Specifically, the notations referring to the defendant's "CHEM
TEST REFUSAL" on August 28, 2015, could lead the jury to
speculate that the defendant refused to submit to testing
because he believed or suspected that he had had too much to
drink. Speculation of this nature could lead to "distinct
prejudice to a defendant." Downs, 53 Mass. App. Ct. at 199.
The admission of the RMV records without redaction of, at a
11
minimum, all references to the defendant's refusals to submit to
a chemical test was, therefore, error.10
We now turn to the question whether the error created a
substantial risk of a miscarriage of justice. In our review, we
consider four factors: "[(1)] the strength of the
Commonwealth's case[; (2)] the nature of the error[; (3)] the
significance of the error in the context of the trial[;] and
[(4)] the possibility that the absence of an objection was the
result of a reasonable tactical decision" (citation omitted).
Commonwealth v. Bolling, 462 Mass. 440, 452 (2012).
The first factor, the strength of the Commonwealth's case,
presents a close question. "Because the defendant was tried
solely on a theory of impaired operation,[11] the Commonwealth was
required to prove beyond a reasonable doubt that alcohol
diminished the defendant's ability to safely operate a motor
vehicle." Commonwealth v. Gibson, 82 Mass. App. Ct. 834, 837
(2012). Although the defendant clearly exhibited signs of
intoxication, and evidence that he drove on a sidewalk was
10The defendant's challenge to the RMV records is based
only on the improper references to his refusals to submit to a
chemical test. However, at retrial, we anticipate that further
redaction will be necessary. See note 4, supra.
11"As opposed to a per se violation. See G. L. c. 90,
§ 24(1)(a)(1)." Commonwealth v. Gibson, 82 Mass. App. Ct. 834,
837 n.3 (2012).
12
sufficient to prove impaired operation, the evidence was not
overwhelming. The defendant essentially was stopped for taking
a shortcut along the sidewalk to avoid traffic. See id.
(defendant was stopped "for an essentially technical violation:
running a red light after safely stopping and looking both
ways"). Furthermore, there was evidence that the sidewalk was
wide enough to permit the passage of motor vehicles, and the
presence of parked vehicles on the sidewalk, as depicted in the
photographs introduced by trial counsel, permitted the inference
that the sidewalk was used by drivers as well as pedestrians.
Moreover, Officer Launie testified that he did not observe any
impairment in the defendant's driving as the officer activated
his emergency lights and followed the defendant as he drove down
the sidewalk and into the parking lot.
In regard to the second and third factors, as we observed
in Gibson, supra at 838, "the error . . . is constitutional in
nature, and is one that our courts have deemed prejudicial." We
therefore consider the error to be a serious one. Lastly, as to
the fourth factor, there is no possibility that the absence of
an objection was due to anything but inadvertence. "In sum,
. . . we 'have a serious doubt whether the result of the trial
might have been different had the error not been made.'" Id.,
quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
13
2. Sufficiency of the evidence. In order to obtain a
conviction on the charge of operating a motor vehicle after his
license had been suspended for a prior OUI, the Commonwealth was
required to prove, beyond a reasonable doubt, "(1) that the
defendant operated a motor vehicle; (2) that at the time of that
operation the defendant's license was revoked or suspended;
(3) that the license suspension or revocation was pursuant to a
violation of one of the specified statutory sections (including
[OUI] in violation of G. L. c. 90, § 24 [1] [a]); and (4) that
the defendant was notified that his license had been suspended
or revoked" (citation omitted). Commonwealth v. Oyewole, 470
Mass. 1015, 1016 (2014). The defendant concedes that the
evidence was sufficient to establish the first three elements.
As to the fourth element, however, the defendant contends that
the Commonwealth failed to satisfy its burden of proof.
The element of notice can be proved by evidence showing
that the defendant had actual (or constructive) knowledge of the
suspension. See Commonwealth v. Deramo, 436 Mass. 40, 51-52
(2002) (defendant's actual knowledge of license revocation was
proved by own admission); Commonwealth v. Norman, 87 Mass. App.
Ct. 344, 345 (2015) (defendant's admission at time of stop that
he did not have license, coupled with evidence that RMV had
mailed notice of suspension to defendant's address, deemed
sufficient). Or, as is more often the case, notice may be
14
proved by proof of proper mailing of a notice of suspension by
the RMV. See Deramo, 436 Mass. at 50-51, and cases cited. The
Commonwealth need not prove that the defendant in fact received
the notice. Rather, proof that the RMV properly mailed a notice
is sufficient. See Commonwealth v. Koney, 421 Mass. 295, 303-
304 (1995), citing Commonwealth v. Crosscup, 369 Mass. 228, 239
(1975) (proper mailing is prima facie evidence of receipt).
The Commonwealth argues that the evidence establishes the
defendant's actual knowledge that his license was suspended
because (1) he did not produce a license when asked to do so by
Officer Launie, and offered no reason why his girl friend would
have his license; and (2) the docket sheet of his January, 2015,
guilty plea indicates a two-year loss of license, and the
multiple RMV documents showing his license suspension also
contain accurate identifying information about the defendant.
Even viewed in the light most favorable to the Commonwealth,
these facts are not sufficient. While it is true that the
defendant did not produce a license, he made no admissions.
Contrast Deramo, 436 Mass. at 51-52; Norman, 87 Mass. App. Ct.
at 345-346. Furthermore, given the decision of the Supreme
Judicial Court in Oyewole, 470 Mass. at 1016, we cannot conclude
that the docket sheet from the defendant's guilty plea to OUI in
January of 2015 is sufficient to establish that the defendant
knew his license was suspended when he was stopped seven months
15
later in August. Here, as in Oyewole, the docket sheet permits
an inference that the defendant was present in court when his
license was suspended, but the Commonwealth offered no evidence
to show that the suspension was communicated to him.12 Contrast
Commonwealth v. Wilson, 90 Mass. App. Ct. 166, 169-170 (2016)
(notice of suspension could be inferred where defendant could
not provide license when he was stopped by State trooper and
evidence showed that, nineteen days before stop, defendant had
admitted to sufficient facts on charge of operating motor
vehicle after license had been suspended).
Lastly, there was no evidence to prove the RMV's proper
mailing of any of the notices of suspension to the defendant.
There was no testimony from an individual familiar with the
RMV's procedures pertaining to notification by mail. Contrast
Norman, 87 Mass. App. Ct. at 345 (Commonwealth offered testimony
of RMV branch manager concerning RMV's "system" of providing
notice of license suspension); Commonwealth v. Lopes, 85 Mass.
App. Ct. 341, 351 (2014) (RMV branch manager trained in "how an
individual's license is suspended and how the RMV provides
12As the court observed in Oyewole, 470 Mass. at 1016 n.3,
a transcript of the plea hearing might have established whether
the defendant was informed of the suspension of his license.
However, no transcript was offered in evidence at trial.
Similarly, it would be a different matter if the docket
reflected that the defendant acknowledged in court that his
license was suspended.
16
notification to that individual by mail" testified that notice
was sent to defendant's address by means of letter). Nor did
the Commonwealth introduce a certification from the RMV that
notice was sent to the defendant. See Deramo, 436 Mass. at 51.
Compare Commonwealth v. Parenteau, 460 Mass. 1, 6 (2011).
Contrast Commonwealth v. Royal, 89 Mass. App. Ct. 168, 174
(2016). The Commonwealth, therefore, did not meet its burden of
proving every element of the offense beyond a reasonable doubt.
Conclusion. The judgment on the charge of OUI, third
offense, is reversed, and the verdict is set aside. The
judgment on the charge of operating a motor vehicle after
license suspension as a result of a prior OUI conviction is
reversed, the verdict is set aside, and judgment shall enter for
the defendant on that charge.
So ordered.