Opinion
No. 11–P–1280.
2013-07-9
COMMONWEALTH v. Eric PINA.
By the Court (RUBIN, FECTEAU & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of operating a motor vehicle under the influence of intoxicating liquor (OUI), second offense. He complains that the evidence was insufficient, during the jury-waived portion of the trial, as to the allegation of a prior offense, some evidence having been improperly admitted; he also contends that the Commonwealth's evidence was insufficient to disprove his claim of necessity, and that the judge erroneously omitted his request for a “ Bowden ” jury instruction.
Commonwealth v. Bowden, 379 Mass. 472 (1980).
Prior conviction. The defendant's contention that there was insufficient evidence to prove that he had previously been convicted of OUI is without merit. To prove a prior OUI conviction, “the Commonwealth must produce evidence linking the person named in [a] conviction record to the defendant.” Commonwealth v. Maloney, 447 Mass. 577, 588 (2006). So long as “the conviction record[ ] ... include[s] more identifying information than merely the offender's name, ... this requirement will be met.” Ibid. Here, the Commonwealth produced, among other evidence, a certified copy of a conviction record from the Wareham District Court showing that Eric D. Pina, born July 19, 1979, and residing at a certain Middleborough address, was convicted of OUI on September 12, 2003. The defendant argues that the record of his prior conviction was improperly admitted where neither an appearance nor a waiver of counsel was shown. We agree that, generally, the basic rule regarding admission in evidence of a prior conviction requires such a showing. See Commonwealth v. McMullin, 76 Mass.App.Ct. 904 (2010), citing Commonwealth v. Proctor, 403 Mass. 146, 147 (1988), and stating: “[A]bsent a showing by the Commonwealth that the defendant was represented by or waived counsel, a defendant's prior convictions may not be used to impeach his credibility, see Commonwealth v. Cook, 371 Mass. 832, 833 (1977), or to determine the length of his sentence. See Commonwealth v. Barrett, 3 Mass.App.Ct. 8, 9–10 (1975).” Additionally, however, a defendant is presumed to have had or waived counsel in a prior proceeding that resulted in a conviction, “and the Commonwealth need not come forward with proof on the point unless the defendant first makes a showing that the conviction was obtained without representation or waiver of counsel.” Commonwealth v. McMullin, supra. ,
Moreover, “[a] notation of the name of counsel for the defendant on the face of a complaint is sufficient to satisfy the Commonwealth's burden in this regard.” Commonwealth v. Napier, 417 Mass. 32, 33 (1994). Such a notation has been shown here; however, the defendant's signature on the tender of plea form on the line reserved for defense counsel raises some question as to whether he was then being represented by counsel.
There is an additional factor worth noting, although we need not resolve the issue on this basis. Here, the defendant's prior conviction did not result in a sentence of incarceration. As was stated in Commonwealth v. Cook, 371 Mass. at 833: “The use of a conviction of crime, resulting in a jail sentence, to impeach the credibility of a criminal defendant is clear error of constitutional dimension unless the Commonwealth establishes that he had or waived counsel” (emphasis supplied). See Commonwealth v. Boudreau, 362 Mass. 378, 382 (1972) (“On the motor vehicle complaint, although there is no evidence that the defendant was represented by counsel, he did not receive a jail sentence. Hence admission of the defendant's record on this charge may not be error”).
Nonetheless, even if it was error to receive this certified copy of a prior conviction in evidence, the Commonwealth showed by independent evidence, not just an identity of name, but also identity of birth date, address, license number, and Social Security number. The evidence identifying the defendant as having been convicted of a prior offense in the Registry of Motor Vehicles (RMV) record, as well as information in the police report, admitted without objection, giving the defendant's license number, matching that in the RMV record, was sufficient to prove that the defendant had previously been convicted of operating under the influence of intoxicating liquor. See Commonwealth v. Maloney, supra.
Defense of necessity. The defendant also claims that the judge should have allowed his motion for a required finding of not guilty because the Commonwealth failed to disprove his affirmative defense of necessity, fairly raised in the evidence. The defense of necessity, which is available only in limited circumstances, “exonerates one who commits a crime under the ‘pressure of circumstances' if the harm that would have resulted from compliance with the law ... exceeds the harm actually resulting from the defendant's violation of the law.” Commonwealth v. Hood, 389 Mass. 581, 590 (1983), quoting from Commonwealth v. Brugmann, 13 Mass.App.Ct. 373, 376–377 (1982).
The defendant's claim of necessity, notwithstanding his admitted condition of insobriety, was based on his fear which forced him to drive out of the parking lot in order to obtain a position of safety: Specifically, the defendant testified that after he left a bar, he was attacked by two men who reached through his open car window and struck him. However, there was also evidence that the defendant also told police that a group of people in the bar did not want him to leave because the owner would get in trouble. It was reasonable for a fact finder to infer that if this same group saw him getting into his car, they were acting on their belief that he should not be driving, and, therefore, that his apparent intention to drive may have in fact prompted the attack from which he claimed the need to escape by driving. The defendant conceded that he did not honk his horn or roll up his windows or use his cell phone to call police. In these circumstances, there was a question of fact, to be resolved by the jury, as to whether the defendant had sufficiently exhausted legal alternatives to the actions he employed and as to whether the potential harm to him was greater than the potential harm to the public, including himself, that his driving while intoxicated presented. See Commonwealth v. Hood, 389 Mass. at 590–591.
The judge properly gave the jury an instruction on the defense of necessity, informing them that it was the Commonwealth's burden to disprove the necessity beyond a reasonable doubt. See Commonwealth v. Iglesia, 403 Mass. 132, 134–136 (1988). It was for the jury both to determine credibility and to weigh the competing harms defense. “The fact finder ... remains free to disbelieve (or credit) any evidence offered by either party relating to the availability of such defenses in a particular case.” See Commonwealth v. Haddock, 46 Mass.App.Ct. 246, 249–250 (1999). Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979), we conclude that there was no error in the denial of the motion for a required finding of not guilty.
Bowden instruction. Lastly, there is no merit to the defendant's contention that the judge should have given the jury an instruction based on Commonwealth v. Bowden, 379 Mass. 472, 486 (1980), to allow the jury to consider whether an inference adverse to the Commonwealth ought to be available because the police failed to follow up on information concerning the two men who were trying to attack the defendant. While the judge had discretion to give such an instruction, it was not error to have declined to do so. Commonwealth v. Williams, 439 Mass. 678, 687 (2003) (“[T]he giving of such an instruction is never required. In other words, there is no Bowden instruction”). Commonwealth v. Avila, 454 Mass. 744, 767 (2009). Commonwealth v. Semedo, 456 Mass. 1, 16 (2010).
Judgment affirmed.