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17

- P

- 1144 Appeals Court

COMMO NWEALTH 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.

C omplaint 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 t he defendant of operating a motor vehicle while under the influence of intoxicating liquor ( OUI ), third offense , and operating a motor vehicle after his license2

had been suspended as a result of a prior OUI conviction. 1 On appeal, t he defendant claims that the judge erred by allowing in evidence unredacted records of t he registry of motor v ehicles ( RMV ) , which contain ed multiple references to his refusal to submit to a chemical test. 2 He also co ntends that the evidence was insufficient to prove that he had notice his license had been suspended.
W e conclude that the failure to redact the RMV records was

error and requir es 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 o f op eratin g a motor vehicle after suspension. 3

1 A n 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 t he "one

- leg stand " fiel d 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 per form 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 re solved 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 b e used only to determine whether the Commonwealth had proved the reason for the3

Background
. 1. Facts . On Augu st 28, 20 15, 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 pull ed 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 pa rking lot of a liquor s tore , 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 indicatin g that the officer should wait
. O fficer Launie knock ed again and told the defendant to roll down the window . The defendant did not follow the officer's instruction. Instead, he open ed 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 request ed his license and registration
. T he defendant produced a Massachusetts identification card an d 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 s low
. 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 sobri ety and asked him to step out of the vehicle and perform certain tasks starting with the " one - leg stand " test
. The defendant s aid 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 step s 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 t he police station by another officer , who had arrived on the scene to provide backup s upport . 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 as serted, through counsel, that he drove on the sidewalk to avoid the traffic and that the sidewalk was wide enough for vehicles
. He also claimed5

that vehicles often parked on th at 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 crimina l docket sheet showing that the defendant had plead ed guilty to OUI in the Peabody Division of the District Court Department approximately seven months earlier on January 1 3 , 2015. 4 According to the docket, the defendant 's license was suspended for two ye ars from the date of the plea
. 5 The reafter, 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 contain ed 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 requ ired at any retrial. See C ommonwealth 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 cert ified 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 appear ed to be computer generated letters addressed to the defendant at addresses associ ated with his license
. One of the letters, dated August 31, 2015

-- three days after the d efendant'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 offens e 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 t he remaining five letters , three

concern ed the revocation or suspension of the defendant's li cense on prior occasions for a "CHEM TEST REFUSAL" on October7

30, 2014, in Lynnfield, 6 and a convic tion of OUI on January 13, 2015. 7 , 8
The remainder of the exhibit consist ed of two copies of a computer printout of the defendant's three

- page d riving h istory.
The printout contained the defendant's name, address, date of birth , an d license numb er , followed by a list of entries , spanning twenty

- two years , entitled "A COMPLETE LIST OF ALL
OFFENSES AND ACTIONS ON FILE . " The entries reflect ed 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 Augu st 31, 2015, informed the defendant of his right to a heari ng 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 ad ditional 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, ef fective 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. S ee 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 limite d to determ ining whether an error occurred and, if so, whether the error resulted in a substantial risk of a miscarriage of justice
. See Commonwealth v. B eaulieu , 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 , 4 12 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 t he Declaration of Rights of the9

Massachusetts Constitution." Ranieri , supra at 371. See Commonwealth v. AdonS oto , 475 Mass. 497, 500 (2016 ).
T he Commonwealth argues th ere 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 t he defendant 's refus al to submit to a chemical test, the defendant was not harmed. This assertion is not supported by the rec ord. 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. W e 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 sta ted 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 l icense 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 chem ical test.10

consider only information to which they are specifically directed. Second, the Commonwealth claims that , even if the jury did

re view the rec ords , 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 wide spread 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 ha s not declined
. In any event, w e have no difficulty concluding tha t jurors are capable of understanding
th at 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 tha t 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, c ould 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 le ad to "distinct prejudice to a defendant." Downs , 53 Mass. App. Ct. at 199
. The admission of the RMV records without redaction o f, at a11

minimum, all references to the defendant's refusals to submit to
a chem ical 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 factor s: "[ ( 1 ) ] the strength of the Commonwealth's case [; ( 2 ) ] the nature of the error [; ( 3 ) ] the significance of the er ror 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 C ommonwealth was required to prove beyond a reasonable doubt that alcohol diminished the defendant's abil ity to safely operate a motor vehicle. " Commonwealth v. Gibson , 82 Mass. App. Ct. 834, 837 ( 2012 ). Although the defendant clearly exhibited signs of i ntoxication , and evidence that he drove on a sidewalk was

10 The defendant's challenge to the RMV records is based only on the improper references to his refusal s to submit to a chemical test. How ever, at retrial , we anticipate that further redaction will be necessary. See note 4, supra .

11 " As opposed to a per se vi olation. 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 sh ort cut 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 vehi cle s 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 defend ant'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 factor s , as we observed in Gibson , supra at 838, " the error
. . . is constitutional in
nature , and is one that our court s 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 inadvert ence. "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

o peration 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 de fendant 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 el ement of notice can be proved by evidence showing
that the defendant had actual (or constructive) knowledge of the suspension. See Commonwealth v. Dera m o , 436 Mass. 40, 51

- 52 (2002) (defendant's actual knowledge of license revocation was proved by own adm ission); Commonwealth v. Norman , 87 Mass. App. Ct. 344 , 345 (2015) (defendant's admission at tim e 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 i s mo re often the case, notice may be14

proved by proof of proper mailing of a notice of suspension by
the RMV . See Dera m o , 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. K o ney , 421 Mass. 295, 303

- 304 (1995), citing Commonwealth v. Crosscup , 369 Mass. 228, 239 (1975) (proper ma il ing 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 dock et sheet of his January, 2015, guilty plea indicates a t wo - 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 th e 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 Sup reme 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 mo nths15

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 Contra st Commonwealth v. Wilson , 90 Mass. App. Ct. 166 , 169

- 170 (2016) (notice of suspension could be inferred whe re defendant could not provide license w hen he was stopped by State t rooper and evidence showed that , nineteen days before stop , defendant had admit ted 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 c oncerning RMV's "system" of providing notice of license suspension); Commonwealth v. Lopes , 85 Mass. App. Ct. 341, 351 (2014) (RMV branch manager trained i n "how an individual's license is suspended and how the RMV provides

12 As 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, i t 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 d efendant's address by means of letter). Nor did the Commonwealth introduce a certification from the RMV th at notice was sent to the defendant. See Dera m o , 436 Mass. at 5 1
. 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.
Con c lusion
. 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 d efendant on that charge
. So ordered
.