OUI Appeal - Massachusetts Confrontation Clause and Probation Records

This case comes to DAD thanks to the watchful eyes of attorneys Tom Workman and Greg Oberhauser. In Commonwealth v. Ellis, No. 10-P-419 (decided 4-25-11) the defendant challenged the proof of his prior convictions which were made by introduction of both a Registry of Motor Vehicles (RMV) records and a probation record as violative of his confrontation clause rights, and he also claimed that there was insufficient identification evidence to connect the defendant to the prior OUI conviction on which the judge relied, of OUI as a third offense. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.



Citing to the US Supreme Court's ruling, and subsequent state cases, the appeals court wrote that "[b]usiness and public records are generally admissible absent confrontation ... because-- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial." Melendez-Diaz, 129 S.Ct. at 2539-2540. Therefore they held that the certified docket conviction record in this case was properly admitted absent confrontation.




The defendant claimed that the RMV records were created by the government solely to prove an element of defendants case - prior convictions. The appeals court responded that "[u]nlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records."



On the other hand, this court found that the probation reports were admitted in violation of the Confrontation Clause:

"In contrast, there was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832.

The testimonial aspects embedded in the probation certification are discernible when it is considered that the certificate was prepared by a person who, in the writing thereof, engaged in certain deliberative decisions, and formulated evaluative statements and opinions in framing answers to the matters appearing on the pre-printed form lines of the probation certification, so that the certification could be used in litigation. For example, in this case, in response to the line inquiry on the certification about a "[p]hoto I.D. (if available)," the writer stated, "N/A"; in response to the line inquiry whether "[t]he defendant was assigned to: [a]lcohol [e]ducation [and] [t]reatment [p]rogram[s]," the writer stated, "N/A"; and in response to the line inquiry concerning the involved "[p]olice [d]epartment (if known)," the writer responded, "State." The compilation of such information required that the writer of this document review certain other documents (which are not specified in any way), engage in a deliberative process, and enter evaluative and opinion-based responses to the various certification line inquiries. Hence, there is a testimonial component which underlies what the writer did in reviewing documents and answering questions on the probation certification form. These actions and nonactions by the writer were ones that would be subject to interrogation in cross-examination. In sum, the "Certification of Probation Information and Prior OUI Offense" implicates confrontation rights under Melendez-Diaz. [FN7] It was error to admit the document absent an opportunity at or before trial to cross-examine the writer."

Unfortunately, the appeals court found that, even in the absence of the erroneously admitted probation record, the remaining admissible evidence was sufficeint to prove both the prior conviction and that the defendant was the offender in the prior case. However, the case is helpful for the propositions regarding probation reports.

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