Heard: November 13, 2017.
received and sworn to in the Lynn Division of the District
Court Department on July 15 and September 6, 2013.
pretrial motion to suppress evidence was heard by Michael
C. Laurenzano, J., and the cases were tried before
Ellen Flatley, J.
P. DeMello for the defendant.
DeRosa, Assistant District Attorney, for the Commonwealth.
Present: Kinder, Desmond, & Sacks, JJ.
District Court jury trial, the defendant was convicted of
leaving the scene of an accident causing both personal injury
and property damage and of operating a motor vehicle with a
suspended license. On appeal, the defendant claims that
(1) admission in evidence of the registry of motor
vehicles' (registry) "mailing confirmation"
document related to his notice of license suspension violated
the confrontation clause and was erroneous on other grounds,
(2) the Commonwealth offered insufficient evidence to prove
that he had notice of his license suspension, (3) his motion
to suppress the victim's pretrial identification of him
from a photographic array was erroneously denied, and (4) the
judge improperly omitted a portion of the Gomes jury
instruction addressing eyewitness identification under high
stress. See Commonwealth v. Gomes, 470 Mass. 352,
381-382 & n.9 (2015) (Appendix). We affirm.
jury could have found that on July 3, 2013, Andres Santana
was operating his motorcycle in Lynn, when a sport utility
vehicle (SUV) pulled out from a side street to make a turn.
Unexpectedly, however, a green sedan pulled out immediately
behind the SUV and then stopped in Santana's travel lane,
forcing him to brake. Santana saw the driver of the sedan for
about a second and observed that he was wearing a white tank
top and that his left arm was tattooed. Anticipating that the
sedan might proceed forward, Santana tried to steer to the
right and rear of the sedan to avoid a collision. The driver,
however, stared directly at Santana, "ma[king] perfect
eye contact, " and momentarily froze.
motorcycle struck the sedan's driver's side rear
quarter panel, propelling him into the air and over the
sedan. He hit the road and rolled underneath a stopped
vehicle, and by the time he stood up, he could not see the
sedan. He received medical treatment and his motorcycle was
later declared a total loss.
police officer arrived and spoke with Santana. The officer
also found a bumper, with the license plate attached, in the
intersection. A few hours later, the officer was dispatched
to a street less than a mile away where a 1997 green Geo
Prism sedan was found parked. The Prism had damage to the
rear driver's side and matched the license plate left in
the intersection. The defendant was the registered owner of
days later, on July 5, the defendant reported to the Lynn
police that his Prism had been stolen. He stated that the
theft occurred sometime between July 3 and 5, from a street
corner in Lynn, and that the keys were in the vehicle and the
doors locked. Further police investigation showed that, prior
to the date of the collision, the defendant's operator
license had been suspended and the insurance and registration
for the Prism had been revoked.
police Officer John Meaney attempted to locate the defendant.
On July 11, he went to the address in Peabody listed for the
defendant in the registry's records. There was no answer
at the door, but the Prism was in the driveway. Officer
Meaney noticed damage to the rear quarter panel but saw no
damage to the windows, ignition, or steering column.
days later, the defendant telephoned Officer Meaney and said
that he had brought the sedan to Lynn and parked it there
sometime on July 3. The defendant explained that he always
left a key under the mat and denied any involvement in the
police prepared a photographic array that included a picture
of the defendant, and on August 15, Officer Meaney showed
Santana the array. Santana identified the defendant's
photograph as that of the driver. Santana also told Officer
Meaney that the driver had tattoos, although they were not
visible in the photograph. Santana later identified the
defendant in court as the driver. The defense theory,
advanced through cross-examination and argument, was
Registry mailing confirmation.
defendant raises three challenges to the Commonwealth's
use at trial of a registry mailing confirmation document to
prove that he received notice of his license suspension. He
argues that use of the document violated the confrontation
clause -- both because it was created for use at trial and
because it was used to prove an element of the crime -- and
that it was not properly authenticated.
prove the charge, the Commonwealth was required to show,
among other things, that the defendant had been notified that
his license was suspended or revoked. See G. L. c. 90, §
23; Commonwealth v. Deramo, 436 Mass. 40, 50 (2002);
Commonwealth v. Parenteau, 460 Mass. 1, 5-6 (2011)
"Pursuant to G. L. c. 90, § 22 (d),  the Commonwealth can
satisfy this burden by showing that the registry properly
mailed the notice of suspension or revocation, which
constitutes 'prima facie evidence of receipt by the
addressee.'" Id. at 6, quoting from
Commonwealth v. Koney, 421 Mass. 295, 303-304
(1995). See Commonwealth v. Royal, 89 Mass.App.Ct.
168, 174 n.9 (2016).
this burden, the Commonwealth introduced a copy of a May 10,
2013, notice addressed to the defendant, informing him that
his license would be suspended effective June 9, 2013 (about
one month before the July 3 collision). The notice bore the
designation: "USPS ID: 370853." The Commonwealth
also introduced a registry document entitled "USPS
MAILING CONFIRMATION." The mailing confirmation also
bore the designation "USPS ID: 370853,
" and included the statements,
"CREATED BY RMV ON: 05/10/2013" (the same date as
the notice), and "RECEIVED BY USPS: 05/13/2013 20:09, AT
POST OFFICE: 02205." The documents were certified by the
registrar of motor vehicles (registrar) under G. L. c. 90,
Confrontation clause: purpose for record's
defendant first argues that the mailing confirmation was
inadmissible under Parenteau, 460 Mass. 1, because
it was created for the purpose of use at trial. In
Parenteau, the Commonwealth had introduced a copy of
the notice of license revocation together with the
registrar's attested statement that the notice had been
mailed on the date shown on the notice. See id. at
4. The attestation was dated two months after the related
criminal complaint had issued. See Id. at 8. The
court held that the attestation document was testimonial
because the date showed that it had been produced
specifically for use at the defendant's trial. See
Id. at 8-9. The court concluded that the
document's "admission at trial in the absence of
testimony from a registry witness" violated the
defendant's confrontation rights. Id. at 9.
reaching this conclusion, the Parenteau court relied
on Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009), as outlining the particular characteristics that
render business records, if admitted without live testimony,
violative of the confrontation clause. Under
Melendez-Diaz, "business records are not
admissible at trial 'if the regularly conducted business
activity is the production of evidence for use at
trial.'" Parenteau, 460 Mass. at 9, quoting
from Melendez-Diaz, 557 U.S. at 321. As an
illustration, in Melendez-Diaz, the Court quoted
from Palmer v. Hoffman, which held that "an
accident report provided by an employee of a railroad company
did not qualify as a business record because, although kept
in the regular course of the railroad's operations, it
was 'calculated for use essentially in the court, not in
the business.'" Melendez-Diaz, 557 U.S. at
321, quoting from Palmer v. Hoffman, 318 U.S. 109,
114 (1943). "[B]usiness 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."
Parenteau, 460 Mass. at 9, quoting from
Melendez-Diaz, 557 U.S. at 322-324.
these principles, the Parenteau court held that the
registrar's attestation of mailing, created for use at
trial, was inadmissible because it was not "a
contemporaneous business record." Id. at 10.
Importantly, however, the court explained that, "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." Ibid.
response to Parenteau, the registry implemented a
system to create such contemporaneous records, and we upheld
their admissibility against a confrontation clause challenge
in Royal, 89 Mass.App.Ct. at 174. We concluded:
"The mailing confirmation records introduced in this
case appear to be such 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 ...