Appeals Court (April 25, 2011)

The Commonwealth's introduction into evidence of a "Certification of Probation Information and Prior OUI Offense" document signed by a probation officer, made in preparation for a defendant's criminal trial, and offered without live witness testimony violates a defendant's Sixth Amendment confrontation rights.

After being convicted by a jury of Operating Under the Influence (OUI), in a separate bench trial, a judge found the defendant guilty of a fourth offense. The defendant appealed his conviction arguing that his Sixth Amendment confrontation rights were violated by the introduction of Registry of Motor Vehicle (RMV) records and a "Certification of Probation Information and Prior OUI Offense" (probation certificate) document.

The RMV Records:
RMV records introduced in an OUI prosecution do not violate confrontation rights under Melendez-Diaz . See Commonwealth v. McMullin, 76 Mass. App. Ct. 904 (2010). "Unlike 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 under G.L. c. 233, § 78, as well as pursuant to G.L. c. 233, § 76."

Certification of Probation Information and Prior OUI Offense:
The probation certification was prepared in anticipation of the defendant's criminal trial for a fourth offense OUI. The certificate was filled out and signed by a probation officer. The document contained answers to pre-populated questions such as: "Is a photo ID available? Which police department handled the previous arrest? Was the defendant assigned to an alcohol education and treatment program?" "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 Court found it was error under Melendez-Diaz to admit the probation certification ultimately found in this case that the Commonwealth's introduction into evidence of the "Certification of Probation Information and Prior OUI Offense" was harmless beyond a reasonable doubt because a certified copy of the conviction was also introduced at trial.