Appeals Court (April 2, 2010)

The Commonwealth's admission of certified court records and certified records from the Registry of Motor Vehicles does not violate a defendant's Sixth Amendment right of confrontation.

The Commonwealth is not required to prove a defendant either was represented by counsel or waived his right to counsel in prior proceedings in order to admit a certified prior conviction for sentence enhancement purposes under G.L. c. 90, §24(1)(a)(1).

The defendant was convicted of a fourth offense operating under the influence of intoxicating liquor and a second offense operating with a suspended license. The defendant appealed his convictions.

Confrontation Clause:
The defendant first argues that the admission of certified copies of records from the District Court and the Registry of Motor Vehicles to prove his prior convictions under G.L. c. 90, § 24(4), violated his Sixth Amendment right to confront witnesses against him. The Court disagreed pointing out that Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) states that "a clerk's affidavit authenticating an official record is not testimonial for purposes of the confrontation clause. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but 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."

Proof to Establish Priors:
The defendant next argues that there was insufficient evidence to establish his prior convictions because the Commonwealth is required to prove that the defendant was either, represented by counsel or waived his right to counsel, in the prior proceedings. The Court pointed out that Massachusetts applies the presumption of regularity to criminal convictions, Commonwealth v. Lopez, 426 Mass. 657 (1998), and extended a prior ruling which says the Commonwealth need not prove waiver or representation before offering a conviction to impeach. Commonwealth v. Saunders, 435 Mass. 691 (2002). "A defendant generally is presumed to have been represented by or to have waived counsel in prior proceedings 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 by or waiver of counsel." Id at 695-696.