COMMONWEALTH v. BARROS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After having been stopped by a State trooper on Route 24 in Berkley, the defendant was charged in Taunton District Court with operating a motor vehicle while under the influence of an intoxicating liquor (OUI) as a second offense. He pleaded guilty to the underlying offense and, after a jury-waived trial, was found guilty of the second offense portion of the charge. Arguments on appeal relate only to the subsequent offense trial. We affirm.

1. Statutory background. Section 24D of G. L. c. 90, allows first time OUI offenders to be diverted into an alcohol abuse education program in lieu of a conviction. Under such a sui generis disposition (§ 24D disposition), a defendant's license to operate is suspended for a minimum of forty-five days, and he or she is placed on probation, with participation in the education program (and, if appropriate, a treatment or rehabilitation program) a condition of probation. See G. L. c. 90, § 24D. Assuming compliance with the terms of probation, the OUI charges then can be dismissed. See G. L. c. 90, § 24E. However, if a defendant who agreed to such a disposition subsequently commits a new OUI offense, he or she may be charged with OUI as a subsequent offense. See G. L. c. 90, § 24 (1) (a) (1).

2. Sufficiency of the evidence. In the subsequent offense trial, the Commonwealth claimed that the defendant had received a § 24D disposition in a 2006 OUI case brought in the Brockton District Court (Brockton case). In support of that claim, the trooper who stopped the defendant on the new offense testified and two exhibits were admitted without objection. Exhibit 1 was the certified docket sheet from the 2006 Brockton case. Exhibit 2 was a certified copy of records from the Registry of Motor Vehicles (RMV). The defendant argues that such evidence was insufficient as a matter of law to establish that he previously had received a § 24D disposition. In assessing that claim, we view the evidence in the light most favorable to the Commonwealth, drawing all reasonable inferences therefrom, to determine whether it was sufficient to persuade a rational fact finder to find that the defendant previously had been charged with an OUI offense that resulted in a § 24 disposition. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

The trooper testified that the defendant presented his driver's license when he was stopped on the new violation. The license revealed the defendant's name (Claudino Barros), license number, date of birth, and address (1166 Dwelly Street, Apt. 1, Fall River). The RMV records were generated from the defendant's license number. Those records, which listed the license holder as Claudino S. Barros, matched the date of birth listed on the defendant's license. The RMV records, which covered many years, indicated that the defendant moved frequently. The most recent address listed in those records was the same as the one listed on the defendant's license. Based on such evidence, a rational fact finder readily could find, beyond a reasonable doubt, that the RMV records belonged to the defendant even though they referred to a different middle initial (“S”) than the one used in the current criminal complaint (“L”).

The docket in the Brockton case reveals that the Commonwealth brought an OUI case against a Claudino L. Barros in 2006. Moreover, the Brockton docket establishes that the Claudino L. Barros charged with OUI in 2006 then lived at 40 Walnut Street in Brockton, the contemporaneous address listed in the defendant's RMV records. Based on such evidence, a rational fact finder readily could find, beyond a reasonable doubt, that the defendant was the same Claudino L. Barros who had been charged with OUI in the Brockton case in 2006.²

All that remains to consider is the sufficiency of the evidence regarding the disposition of the defendant's 2006 case. The Brockton docket indicates that a “guilty plea/ASF” colloquy was given on September 25, 2006, and that “judgment” entered on that day. Nevertheless, subsequent docket entries indicate that the case was continued without a finding and eventually dismissed. Taken together, such entries are strongly suggestive that the “judgment” that was entered on September 25, 2006, was a § 24D disposition. That inference is substantially strengthened by the defendant's RMV records. The Brockton case docket indicates that an “abstract” of the disposition reached on September 25, 2006, was sent to the RMV that day. In turn, the RMV records include a notice indicating that -- as part of the disposition of a Brockton District Court OUI proceeding on September 25, 2006 -- the defendant's license had been suspended for forty-five days (the minimum period of time that licenses are suspended as part of a § 24D disposition). That same notice also invited the defendant to apply for a hardship license pursuant to § 24D.³ Another document in the defendant's records references a “DWI alcohol program” in 2006 related to a Brockton District Court proceeding. From this evidence, taken collectively, a rational fact finder could find beyond a reasonable doubt that the 2006 Brockton case ended in a § 24D disposition in which the defendant was assigned to an alcohol education program. Accordingly, the defendant's sufficiency argument fails.

3. Admission of the RMV records. The defendant separately argues that the judge erred by allowing the admission of the RMV records. This claim requires little discussion. The defendant raised no objection to the admission of these records and, in any event, the records were accompanied by a certification pursuant to G. L. c. 90, § 22. The defendant is left to argue that the certification was inadequate because it appeared only on a cover page to the records and did not indicate how many pages were attached, and that the admission of the documents with an inadequate certification caused a substantial risk of a miscarriage of justice. Even were we to accept arguendo the defendant's argument that the certification was inadequate,⁴ we would conclude that the defendant has not carried his burden of demonstrating a substantial risk of a miscarriage of justice. See Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 344 (2011). That is because the defendant has pointed to nothing calling into question the authenticity of the RMV records.

4. Judicial notice. At one point in the trial, in the context of discussing the interplay between the Brockton docket and the RMV records (exhibit 2), the judge made a reference to his taking judicial notice of the manner in which courts notify the RMV of the disposition of OUI cases.⁵ Although the defendant lodged no objection to the judge's taking judicial notice, he now claims that the judge's doing so amounted to reversible error. We are unpersuaded. For one thing, courts are required to notify the RMV in this manner, see G. L. c. 90, § 27, and judges may take judicial notice of the law. For another, there was specific evidence in this case -- an entry in the Brockton case docket -- establishing that an abstract in fact was sent to the RMV. Whatever else can be said about the judge's suggestion that he could take judicial notice of internal court procedures, any error in this regard did not create a substantial risk of a miscarriage of justice.

Judgment affirmed.

FOOTNOTES

2.   In his police report, the trooper included a social security number (Berkley SSN) that he gleaned from a computer database that was based on the RMV records. The defendant seeks to make much of the fact that the Berkley SSN differs from one referenced on the Brockton District Court docket (Brockton SSN). In fact, the Berkley SSN and the Brockton SSN are identical, except for the inversion of two of the nine numbers, suggesting that someone at some point simply made a transcription error when one of the two numbers was recorded. That inference is reinforced by the fact that the relevant entry on the Brockton docket indicates that the defendant's social security number was “changed from” the Brockton SSN. Although the docket does not indicate what number the Brockton SSN was changed to, the judge reasonably could have found that the court was correcting the transcription error.

3.   Whether the defendant received such notice is immaterial for present purposes. Therefore, cases that involve proof of notice through the submittal of RMV records have no bearing in this appeal.

4.   But see Commonwealth v. Martinez-Guzman, 76 Mass. App. 167, 169-172 (2010) (stamped signature on certification held adequate to provide attestation of RMV records pursuant to G. L. c. 233, § 76).

5.   Specifically, the judge said:“Well, it's [e]xhibit 2, whatever. And you'll agree with me that the way that that happens -- and I think I can take judicial notice of the way that this happens -- is that there's an abstract sent from the court to the [RMV] containing the information.”