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14-P-1902                                                 Appeals Court

                  COMMONWEALTH    vs.   TITUS T. ROYAL.


                              No. 14-P-1902.

            Suffolk.      December 1, 2015. - March 7, 2016.

              Present:    Rubin, Maldonado, & Massing, JJ.


Motor Vehicle, License to operate. License. Registrar of Motor
     Vehicles, Records. Evidence, Hearsay, Business record.
     Notice. Practice, Criminal, Hearsay.



     Complaint received and sworn to in the Charlestown Division
of the Boston Municipal Court Department on December 11, 2013.

    The case was heard by Lawrence E. McCormick, J.


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


    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
                                                                     2


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


     1
       The criminal justice information system.    See G. L. c. 6,
§ 167A(c).
                                                                   3


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."


     2
       Under G. L. c. 175, § 113B, if a driver has three
surchargeable incidents within a twenty-four month period --
defined as at-fault accidents, traffic law violations, or
comprehensive coverage claims, see 211 Code Mass. Regs. § 134.03
(2003) -- the driver's license will be suspended unless the
driver completes a driver education program within ninety days.
                                                                      4


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

     3
       Notice of the registry's intention to suspend is adequate
evidence of the notice element as it "conveys notice of imminent
registry action." Commonwealth v. Crosscup, 369 Mass. 228, 231
& n.2 (1975).
     4
      The defendant argues that "the Commonwealth did not
present evidence sufficient to find beyond a reasonable doubt
that [the defendant's] license had been suspended pursuant to
a specified statutory section on November 4, 2013." If the
defendant had been charged under the third paragraph of G. L.
c. 90, § 23, the defendant would be correct in arguing that
the Commonwealth was required to prove the additional element
that his license was suspended or revoked "pursuant to a
violation of one of the specified statutory sections."
Commonwealth v. Deramo, 436 Mass. 40, 50 (2002). However,
since the defendant was charged under the first paragraph of
G. L. c. 90, § 23, for operating a motor vehicle with a
suspended license, second offense, the Commonwealth was
required to prove only the above-listed three elements. The
record before us is silent regarding the disposition of the
subsequent offense aspect of the charge.
                                                                     5


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 (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.   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

(2010); Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327

(2009) (computerized mapping tool's measurement of distance does
                                                                    6


not constitute "statement"); Commonwealth v. Perez, 89 Mass.

App. Ct. 51, 56 (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

(1985); State v. Armstead, 432 So. 2d 837, 839-840 (La. 1983);

State v. Kandutsch, 336 Wis. 2d 478, 501-506 (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.   "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.

     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


     5
       The definition of "statement" in Mass. G. Evid. § 801(a)
is identical to Fed. R. Evid. 801(a).
                                                                      7


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,'
                                                                   8


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;

Kandutsch, supra at 501-506, 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.


     6
       In Commonwealth v. Norman, 87 Mass. App. Ct. 344, 345
(2015), as part of its proof that the defendant had received
notice that his license had been suspended as the result of a
conviction of operating a motor vehicle under the influence of
alcohol (OUI), the Commonwealth offered the testimony of a
registry branch manager concerning the registry's "system" of
providing notice of license suspension. "Under that system,
once an OUI conviction is entered into the relevant database, a
suspension notice is automatically generated, and employees in
the [registry] mailroom then place the notice in an envelope and
deliver it to the post office for mailing" (emphasis supplied).
Ibid. If such testimony had been offered in the case before us,
it would tend to show that the registry database is at best a
hybrid, comprising computer-stored records of human statements
regarding triggering events as well as computer-generated
notices.
                                                                   9


App. Ct. 27-28, 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 (2011), quoting from

Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 171 n.3

(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

suggestion, the introduction of the registry records through

Morrill did not rise to the level of constitutional error.

Registry records of driver history are not "testimonial" and do

not raise Sixth Amendment to the United States Constitution

confrontation clause concerns.   Commonwealth v. Ellis, supra at

335-336, citing Commonwealth v. McMullin, 76 Mass. App. Ct. 904,

904 (2010).
                                                                    10


     Nonetheless, the improperly admitted hearsay was the only

direct evidence that the Commonwealth offered as proof of an

essential element of the crime, and it served as a crucial

foundation for the guilty finding.7    We cannot say that the

evidence "did not influence the jury, or had but very slight

effect."   Randall, supra at 28, quoting from Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994).8

     2.    Notice of suspension.   Because the issue may recur at

any retrial, we address the defendant's additional contention

that the registry's mailing confirmation documents were

inadmissible under Commonwealth v. Parenteau, 460 Mass. 1

(2011).



     7
       Although the defendant received two notices that the
registry intended to suspend his license if he did not take
certain steps before certain deadlines, the Commonwealth
presented no evidence to indicate that the defendant did not
comply or that the registry actually followed through with the
suspension. The Commonwealth does not argue that proof of
suspension could be inferred from the part of the registrar's
certification stating that "on 01/09/14 his/her license or right
to operate was reinstated." For the reasons discussed infra,
this statement constituted inadmissible testimonial hearsay.
See Commonwealth v. Parenteau, 460 Mass. 1, 8-9 (2011); Ellis,
supra at 333-334; Commonwealth v. Lopes, 85 Mass. App. Ct. 341,
352 (2014).
     8
      We reject the defendant's argument that the evidence
offered at trial was insufficient to sustain his conviction.
Sufficiency of the evidence "is to be measured upon that which
was admitted in evidence without regard to the propriety of the
admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014),
quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87,
98 (2010).
                                                                   11


    In Parenteau, to prove the element that the defendant

received notice that his license was suspended or revoked, the

Commonwealth introduced a copy of the notice of suspension

accompanied by the registrar's attestation that the notice had

been mailed on the date shown on the notice.   Id. at 4.9

Observing that the registrar's certification was "a solemn

declaration made by the registrar for the purpose of

establishing the fact that notice of license revocation was

mailed to the defendant . . . , and, by inference was received

by him," id. at 8, the court held that the certification was

testimonial hearsay and violated the defendant's Sixth Amendment

right to confrontation in the absence of live testimony from a

registry witness.    Id. at 8-9.

    The court noted that a contemporaneous business record

showing that the notice had been mailed would not have raised

the same concerns.   "If such a record had been created at the

time the notice was mailed and preserved by the registry as part

of the administration of its regular business affairs, then it

would have been admissible at trial."   Id. at 10.   The mailing

confirmation records introduced in this case appear to be such

    9
       Evidence that the registry mailed the notice is prima
facie evidence that the defendant received the notice. See
Commonwealth v. Crosscup, 369 Mass. 228, 239-240 (1975);
Parenteau, supra at 5-6 & n.8. "The Commonwealth need not prove
that the defendant in fact received that notice; proof that the
[registry] properly mailed it is sufficient." Commonwealth v.
Norman, 87 Mass. App. Ct. 344, 346 n.4 (2015).
                                                                  12


contemporaneous business records, now maintained by the registry

in response to the Parenteau decision.   They were properly

admitted as evidence that the registry mailed, and prima facie

evidence that the defendant received, the notices of intent to

suspend his license.

     Thus, the Commonwealth offered specific proof that the

notices were mailed to the defendant; it did not rely on

evidence of the registry's "regular practice."     Contrast

Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014).     The

defendant points to certain apparent discrepancies in the

mailing confirmation records, for example, that they attempt "to

memorialize actions that had not yet occurred -- both documents

were created before" the post office "received" them -- but such

cavils go to weight rather than admissibility.10    As the mailing

confirmation records permit, but do not require, the trier of

fact to find that the defendant received notice, he is entitled

to introduce relevant evidence and argument calling his receipt

of notice into question.   See Commonwealth v. Crosscup, 369

Mass. 228, 242 (1975); Parenteau, supra at 6 n.8.

                                   Judgment reversed.

                                   Finding set aside.


     10
       To eliminate future litigation regarding this apparent
discrepancy, the registry should consider revising its mailing
confirmation template to replace the words "received by USPS"
with the words "delivered to."
