Opinion
10-P-1548
01-25-2012
COMMONWEALTH v. DEBORAH L. LETOURNEAU.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Deborah L. Letourneau, was convicted by a jury of use of a motor vehicle without authority, driving an uninsured motor vehicle, and leaving the scene of an accident after causing property damage. She was found not guilty of operating a motor vehicle while under the influence of liquor. The trial continued, now without a jury, and she was found guilty of operating a motor vehicle after her license was suspended or revoked for operating under the influence (operating after revocation).
The defendant appeals, arguing insufficiency of the evidence on the charges of use of a motor vehicle without authority and operating a motor vehicle after license revocation. She also claims that the prosecutor improperly introduced uncharged conduct in his opening statement, that the judge abused his discretion in denying her motion for a mistrial and, most significantly, that the admission of a certificate from the Registry of Motor Vehicles violated her confrontation rights under the Sixth Amendment to the United States Constitution. Last, she claims that the combination of errors created a substantial risk of a miscarriage of justice. We affirm.
1. Required finding. The defendant argues that the trial judge erred in denying her motion for a required finding of not guilty on the charge of use of a motor vehicle without authority because the prosecution failed to prove beyond a reasonable doubt that the defendant knew her use of the car was unauthorized.
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671 (1979), the facts here were sufficient to permit a rational fact finder to find, beyond a reasonable doubt, that the defendant knew her use of the vehicle was unauthorized. Relevant facts included that the car was unregistered and uninsured, that the defendant had been given permission neither to drive the car, nor to remove the license plates from another car to affix to this one, and that the defendant was not given the keys. Combined, all of this evidence supported the verdict rendered.
The defendant apparently removed the license plate from a BMW, which belonged to the son of the owner of the station wagon that the defendant was driving, and affixed it to the station wagon.
2. Operating after revocation. The defendant argues that, in the bifurcated trial, the judge took impermissible notice of the proceedings of the first half of the trial. The proceedings in this case were bifurcated at the start of the trial, without objection from either party, to shield the defendant from any undue prejudice. The judge made it clear, from the outset, that they were dealing with the two charges in one trial, in a bifurcated fashion.
The Commonwealth asserts, and we agree that it is 'readily inferable' that defense counsel recognized the trial was bifurcated for the purpose of protecting the defendant from any prejudice that might arise from the jury knowing of her prior convictions for operating under the influence, one of the same crimes with which she was charged here.
The trial judge stated:
'The cases were bifurcated; they were not severed, and I believe it was clearly understood by all that the operating after revocation while under the influence would be dealt with depending on the jury's verdict and flowing from the jury's verdict on the operating under the influence charge.
. . .
'This was the second half of a bifurcated procedure, a proceeding; the first half had been determined by the jury, and the jury found, and I accept what the jury found, that the defendant was, in fact, operating a motor vehicle on December 18, 2006; that she was operating that vehicle in a public way, and then I considered the additional evidence that is now presented to me by way of Exhibit 7.'
The defendant did not raise an objection to this method until the second phase of the trial, when counsel argued there was a lack of evidence to prove operating a motor vehicle after a license revocation. At that point the judge reiterated that he viewed the two proceedings as one.
After the defendant was acquitted, in the first phase of the trial, of operating under the influence, it appears that all parties agreed not to proceed on the original charge of operating under the influence after revocation. Until the start of the second phase, the defendant's only objection to the bifurcation was an objection to proceeding at all on the lesser included offense. It also appears from the transcript that the defendant had not made the decision to waive a jury trial for the second phase until after the initial jury verdict.
There was no error. The decision to bifurcate the trial was within the discretion of the trial judge. See generally Commonwealth v. Siegfriedt, 402 Mass. 424, 431 (1988). This is especially true given the acquiescence of both parties and the fact that bifurcation may be employed, as here, not to relieve the Commonwealth of its burden, but for the benefit of the defendant, by shielding the jury from knowledge of previous convictions. See generally Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 910 (2009), citing Commonwealth v. Williams, 19 Mass. App. Ct. 915, 916 (1984).
3. Opening statement. The defendant argues that the prosecutor improperly mentioned uncharged bad acts in his opening statement. Specifically, the defendant objects to statements that the defendant was unlicensed and took plates from another car; she also complains about the lack of curative instructions from the judge.
'As a general rule, counsel is free to state in his opening anything that he expects to be able to prove by evidence,' Commonwealth v. Breese, 381 Mass. 13, 15 (1980), which is what the prosecutor did here. We note further the judge's repeated and clear instructions to the jury that opening statements are not evidence and cannot be considered in reaching a verdict.
4. Mistrial. The defendant argues that the judge abused his discretion in failing to order a mistrial after a witness indicated that he had first met the defendant at an Alcoholics Anonymous meeting.
A trial judge has broad discretion in deciding whether to declare a mistrial. Reviewing courts should 'defer to that judge's determination of whether the prosecutor committed prejudicial error' and the best method of remedying such error. Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). To show abuse of discretion, the defendant must show that 'no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.' Commonwealth v. Lao, 460 Mass. 12, 19 (2011), quoting from Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985). Here, there was no such abuse.
We note that counsel was given, and rejected, the opportunity to ask for a curative instruction, or to suggest other methods short of a mistrial, to cure the perceived prejudice. We also note that the jury found the defendant not guilty of the operating under the influence charge, which indicates, to some degree, that they were not swayed by the comment.
5. Registry records. The defendant argues that Commonwealth v. Parenteau, 460 Mass. 1 (2011), controls this case, and as a result, the admission in evidence of the certificate provided by the Registry of Motor Vehicles (registry) violated her confrontation rights.
In Parenteau, the Supreme Judicial Court ruled that the registry certificate, admitted to prove that the defendant was notified of his license revocation, was a testimonial statement subject to cross-examination and therefore inadmissible without a witness from the registry to support it. Id. at 8. While Parenteau makes it clear that the Commonwealth's proof fails where an inadmissible registry certificate is the only proof of notice, here the Commonwealth introduced additional evidence in the form of the defendant's admission and consciousness of guilt, to show that she had notice. That, combined with the properly admitted business records of the registry, supported her conviction. Regardless of the standard of review, see, e.g., Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997) (substantial risk of a miscarriage of justice); Commonwealth v. Walorz, 79 Mass. App. Ct. 132, 137 (2011) (harmless beyond a reasonable doubt), any error did not contribute to the judge's guilty finding.
The defendant told the police officer that 'she didn't have [a license].' The defense was free to argue that the defendant may have meant something different, e.g., that she merely did not have a license in her wallet. See, e.g., Commonwealth v. Sheriff, 425 Mass. 186, 199-200 (1997) ('It is, of course, defense counsel's job to argue the innocent explanation to the [fact finder]'). It was up to the fact finder to give the testimony whatever weight was deemed appropriate.
The defendant fled twice, once from the scene of the accident and once from the parking lot. She also told the victim that he did not need to call the police and told the police that someone else was driving the car. See Commonwealth v. Basch, 386 Mass. 620, 625 (1982), citing Commonwealth v. Montecalvo, 367 Mass. 46, 52 (1975).
Given our conclusions on all of the defendant's other claims, the defendant's final argument concerning cumulative error also fails.
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Judgments affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),