author: SACKS, J.

text:
    COMMONWEALTH v. Bradley MCEVOY.
    No. 16-P-1681
    Appeals Court of Massachusetts, Essex.
    Argued November 13, 2017 Decided June 4, 2018
    Kevin P. DeMello for the defendant.
    Ronald DeRosa, Assistant District Attorney, for the Commonwealth.
    Present: Kinder, Desmond, & Sacks, JJ.
   SACKS, J.

After a 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, 22 N.E.3d 897 (2015) (Appendix). We affirm.

Background. The 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.

Santana's 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.

A Lynn 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 the Prism.

Two 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.

Lynn 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.

Several 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 collision.

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 misidentification.

Discussion. 1. Registry mailing confirmation. The 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.

To 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, 762 N.E.2d 815 (2002) ; Commonwealth v. Parenteau, 460 Mass. 1, 5-6, 948 N.E.2d 883 (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, 948 N.E.2d 883, quoting from Commonwealth v. Koney, 421 Mass. 295, 303-304, 657 N.E.2d 210 (1995). See Commonwealth v. Royal, 89 Mass. App. Ct. 168, 174 n.9, 46 N.E.3d 583 (2016).

To meet 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, § 22.

a. Confrontation clause: purpose for record's creation. The defendant first argues that the mailing confirmation was inadmissible under Parenteau, 460 Mass. 1, 948 N.E.2d 883, 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, 948 N.E.2d 883. The attestation was dated two months after the related criminal complaint had issued. See id. at 8, 948 N.E.2d 883. 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, 948 N.E.2d 883. 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, 948 N.E.2d 883.

In reaching this conclusion, the Parenteau court relied on Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (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, 948 N.E.2d 883, quoting from Melendez-Diaz, 557 U.S. at 321, 129 S.Ct. 2527. 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, 129 S.Ct. 2527, quoting from Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 87 L.Ed. 645 (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, 948 N.E.2d 883, quoting from Melendez-Diaz, 557 U.S. at 322-324, 129 S.Ct. 2527.

Applying 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, 948 N.E.2d 883. 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.

In 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, 46 N.E.3d 583. 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 defendant received, the notices of intent to suspend his license."

The defendant here nevertheless presses the claim that the mailing confirmations are testimonial because they were not created for any business purpose but instead "were created in the wake of the Parenteau case for the sole purpose of allowing the Commonwealth to prove notice of suspensions and revocations at trial without the use of live testimony." Our decision in Royal already rejected this argument, concluding that the mailing confirmations, created in response to the roadmap in Parenteau for avoiding a confrontation clause problem, did in fact avoid that problem. See ibid. The court would not have laid out such a roadmap if it led only to a dead end.

In assessing the purpose for the creation of the mailing confirmations, we are guided by Commonwealth v. Zeininger, 459 Mass. 775, 947 N.E.2d 1060, cert. denied, 565 U.S. 967, 132 S.Ct. 462, 181 L.Ed.2d 301 (2011) -a decision issued shortly before Parenteau-in which the court held admissible certain State office of alcohol testing (OAT) records annually certifying the proper functioning of breathalyzer machines used to test operating under the influence (OUI) suspects' blood alcohol content. By statute, the results of a breathalyzer test are inadmissible in a prosecution for OUI unless the breathalyzer has received an annual certification from OAT that it meets certain accuracy criteria. See id. at 779-780, 947 N.E.2d 1060, citing G. L. c. 90, § 24K. And, because a "notation of [such annual] certification appears on the same report as the results of the breathalyzer test, as a matter of practice, it is admitted in evidence and published to the jury in an OUI prosecution." Id. at 780-781, 947 N.E.2d 1060.

The defendant in Zeininger argued that the OAT certification was inadmissible because "even if a record is prepared in the regular course of business, it does not qualify as a business or official record ... if it was 'calculated for use essentially in the court, not in business.' " Id. at 784, 947 N.E.2d 1060, quoting from Melendez-Diaz, 557 U.S. at 321, 129 S.Ct. 2527. The Supreme Judicial Court concluded that "the OAT certification records are not 'calculated for use essentially in the court.' " Id. at 784, 947 N.E.2d 1060, quoting from Palmer, 318 U.S. at 114, 63 S.Ct. 477.

"Rather, OAT prepares the certification records in concert with its statutory charge to administer an internal regulatory program that standardizes 'satisfactory methods, techniques and criteria for the conduct of [breathalyzer] tests.' G. L. c. 90, § 24K. In this sense the records are 'typical of entries made systematically or as a matter of routine to ... provide internal controls,' which are admissible under the Federal rules and the common law."

Ibid., quoting from Palmer, 318 U.S. at 113, 63 S.Ct. 477. The OAT records were thus admissible as business records.

In Zeininger, the court then turned to, and rejected, the confrontation clause challenge to the OAT certification records. Notwithstanding that the obvious purpose of breathalyzers is to accurately test the blood alcohol levels of OUI suspects, and to provide accurate evidence against those charged with OUI, the court reasoned that "the OAT certification records were made 'for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial,' " and thus were nontestimonial. Id. at 787, 947 N.E.2d 1060, quoting from Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. 2527. See Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).

Much of what the court said in Zeininger applies equally to the registry's mailing confirmations. The registry has a statutory duty to notify persons that their operators' licenses have been suspended or revoked. See, e.g., G. L. c. 90, § 22(d ) ; G. L. c. 90C, § 3(A )(6)(a ). The registry must preserve records of such notices, as well as other documents "maintained in the normal course of business." G. L. c. 90, § 30, as amended by St. 2010, c. 409, § 14. The primary purpose of registry mailing confirmations is to "guarantee, internally, as a matter of course, and when necessary, in court," that the registry has performed its statutory duty of giving notice of license suspensions and revocations. Zeininger, 459 Mass. at 788, 947 N.E.2d 1060.

In Zeininger, the court stated that "[a]t the time of [OAT's] certification, the hypothetical use of that record in an as-yet-unknown criminal proceeding [was] merely an ancillary purpose, subordinate in importance to the 'administration of the entity's affairs.' " Id. at 788, 947 N.E.2d 1060, quoting from Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. 2527. Here, likewise, the hypothetical use of the registry's mailing confirmation in an as-yet-unknown prosecution for operating under suspension is equally ancillary to the registry's statutory duty, regulatory in character, to suspend or revoke operators' licenses in order to protect public safety. See Luk v. Commonwealth, 421 Mass. 415, 423-430, 658 N.E.2d 664 (1995) (registry's license suspension or revocation serves primarily regulatory, not punitive function).

Further, in Zeininger, 459 Mass. at 788, 947 N.E.2d 1060, the court distinguished OAT technicians from chemists (like those in Melendez-Diaz ), who create certificates of drug analysis, on the ground that OAT technicians act with no particular prosecutorial purpose. The court adopted the reasoning of the Oregon Court of Appeals on this point:

"Although [breathalyzer machines] produce evidence that is used only in criminal prosecutions or administrative hearings, the person who performs the test of a machine's accuracy does so with no particular prosecutorial use in mind, and, indeed, there is no guarantee that the machine will ever, in fact, be used."

Zeininger, 459 Mass. at 788 n.18, 947 N.E.2d 1060, quoting from State v. Bergin, 231 Or. App. 36, 41, 217 P.3d 1087 (2009). Likewise, the registry employees who cause mailing confirmations to be created have no particular prosecutorial use in mind, and there is no guarantee that any given mailing confirmation will ever be used in court.

We acknowledge that the court's ruling in Zeininger rested in part on its conclusion that OAT certification records were not "offered as direct proof of an element of the offense charged," but instead "bear only on the admissibility or credibility of the [breathalyzer] evidence." Zeininger, 459 Mass. at 786, 947 N.E.2d 1060. OAT certification records "bear a more attenuated relationship to conviction: They support one fact (the accuracy of the machine) that, in turn, supports another fact that can establish guilt (blood alcohol level)." Id. at 787, 947 N.E.2d 1060, quoting from Bergin, 231 Or. App. at 41, 217 P.3d 1087. Here, although a registry mailing confirmation may constitute more direct proof of an element of the offense, we cannot say that Zeininger therefore precludes its use. This is because after the decision in Zeininger, the court in Parenteau, despite expressly recognizing that a mailing confirmation could be used as "prima facie evidence ... [of] an essential element of the charged crime," Parenteau, 460 Mass. at 8, 948 N.E.2d 883, indicated that a contemporaneously created mailing confirmation would be admissible. See id. at 10, 948 N.E.2d 883. In short, Zeininger and Parenteau, read together, require the conclusion that the use at trial of the registry's contemporaneously produced mailing confirmation did not violate the confrontation clause.

b. Confrontation clause: use of record to prove element of offense. The defendant next argues that the confrontation clause bars the use of an otherwise admissible business record to prove an element of an offense-here, that he had notice that his operator's license had been suspended. As just noted, the Parenteau court implicitly rejected this argument; we explicitly rejected it in Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 927 N.E.2d 1023 (2010). There, a defendant was charged with carrying a firearm without a license, subsequent offense; we held that certified copies of the docket sheets showing the prior convictions were nontestimonial and admissible to prove those convictions, which were plainly an element of the subsequent-offense charge at issue. Id. at 1, 5-8, 927 N.E.2d 1023. See Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 331-333, 945 N.E.2d 983 (2011) (same in OUI subsequent-offense prosecution). Similarly, in Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), the Court recognized that it does not violate the confrontation clause to use a docket sheet to prove the fact of a prior conviction, where that fact is necessary to a subsequent prosecution. Id. at 54-55, 19 S.Ct. 574.

c. Authentication. Equally unavailing is the defendant's argument that the mailing confirmation was not properly authenticated. The suspension notice and mailing confirmation were attached to an attestation from the registrar, which were signed by her, stating that the "annexed instrument(s) are true copy(s) of the ... notice(s) of suspension/revocation as appearing in the registrar's records." This was sufficient.

That the attestation did not specifically mention the mailing confirmation is not dispositive. Neither of the statutes making attested copies of registry records admissible- G. L. c. 233, § 76, and G. L. c. 90, § 30 -specifies the precise form an attestation must take. See Commonwealth v. Martinez-Guzman, 76 Mass. App. 167, 170, 172 n.4, 920 N.E.2d 322 (2010). See also G. L. c. 233, § 78. The defendant does not dispute that the attestation was physically attached to the notice and mailing confirmation, and the mailing confirmation can reasonably be viewed as a component of the notice as appearing in the registrar's records, even if the mailing confirmation itself is not mailed to the operator along with the notice. Cf. Commonwealth v. Dias, 14 Mass. App. Ct. 560, 563-564, 441 N.E.2d 266 (1982). The requirement that, "to qualify as an 'attested' copy, there must be 'a written and signed certification that [the document] is a correct copy,' " was satisfied. Deramo, 436 Mass. at 47, 762 N.E.2d 815, quoting from Henderson v. United States, 778 F.Supp. 274, 277 (D.S.C. 1991).

2. Sufficiency of evidence that notice was sent. Contrary to the defendant's argument, the mailing confirmation contained sufficient details, as outlined supra, from which a jury could reasonably infer that the registry mailed the suspension notice to the defendant. See Royal, 89 Mass. App. Ct. at 174, 46 N.E.3d 583. This constituted prima facie evidence that the defendant received the notice. See Parenteau, 460 Mass. at 6, 948 N.E.2d 883. This case is thus nothing like Commonwealth v. Oyewole, 470 Mass. 1015, 21 N.E.3d 179 (2014), relied upon by the defendant, where there was no evidence that the defendant had been notified, in writing or orally, of his license suspension. See id. at 1016-1017, 21 N.E.3d 179.

3. Motion to suppress photographic array identification. The defendant argues that the motion judge erred in denying, after an evidentiary hearing, the motion to suppress Santana's identification of the defendant in the photographic array. The defendant maintains that the identification was so unnecessarily suggestive as to violate constitutional principles and was unreliable under common-law fairness principles. We disagree.

a. Constitutional principles. In moving to suppress, the defendant had the burden to prove "by a preponderance of the evidence that the identification was 'so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.' " Commonwealth v. Johnson, 473 Mass. 594, 597, 45 N.E.3d 83 (2016), quoting from Commonwealth v. Walker, 460 Mass. 590, 599, 953 N.E.2d 195 (2011). "In considering whether identification testimony should be suppressed, the judge must examine 'the totality of the circumstances attending the confrontation to determine whether it was unnecessarily suggestive.' " Ibid., quoting from Commonwealth v. Silva-Santiago, 453 Mass. 782, 795, 906 N.E.2d 299 (2009).

The defendant asserts six separate flaws in the photographic array identification process. As the relevant facts are undisputed, we review, without deference to the motion judge, the application of the law to those facts. See id. at 602, 953 N.E.2d 195.

First, Officer Meaney, because he knew which photograph was that of the suspect (i.e., the defendant) and also presented the array to Santana, did not follow the "double-blind procedure" recognized as the "better practice" in Silva-Santiago, 453 Mass. at 797, 906 N.E.2d 299. But here, as in Silva-Santiago, "there was no evidence that the [officer] who presented the photographic arrays signaled a particular response to, or otherwise attempted to influence," the witness. Ibid. In these circumstances, the absence of a double-blind procedure went to weight, not admissibility. See ibid.

Second, the defendant asserts that Officer Meaney failed to follow the Lynn police department's eyewitness identification procedures, in that he did not obtain a description of the suspect before presenting the photographic array to Santana. But the procedures do not require such a step. They assume, but do not require, that a witness description will be used in order to select "fillers" for the array; they do not make a suspect's resemblance to a previously-obtained description the only permissible basis for including that suspect's photograph in an array. Here, the bumper and license plate left at the scene pointed to the defendant (the Prism's owner) as a logical suspect, and once his photograph was obtained from the registry, photographs of similar-looking persons, from the same source, were used to fill out the array. We see nothing unnecessarily suggestive in this process.

Third, the defendant's claim that the other photographs in the array depicted persons with significantly lighter skin than his is not borne out by the color copy of the array in the record. See id. at 795, 906 N.E.2d 299 (array not unnecessarily suggestive where it included photographs of individuals with "reasonably similar features and characteristics").

Fourth, that the photographs were shown simultaneously rather than sequentially goes to weight rather than admissibility, because there is no near consensus in the scientific community regarding which method is more reliable. See Commonwealth v. Thomas, 476 Mass. 451, 463-464, 68 N.E.3d 1161 (2017). The defendant points out that Lynn police department procedures call for the array to be shown sequentially, "one at a time." As the Thomas court said, however,

"[The] model jury instructions on eyewitness identification direct juries to 'evaluate the identification with particular care' where the police fail to follow a protocol that is established or recommended by the law enforcement agency conducting the identification procedure.... A defendant may request such an instruction where a police department that has chosen the sequential method fails to employ it in an identification procedure.

Thomas, 476 Mass. at 464 n.10, 68 N.E.3d 1161, quoting the Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051, 1056-1057 (2015) (model instructions). Here, the judge gave that "particular care" instruction twice in her final charge.

Fifth, the defendant argues that Officer Meaney, by telling Santana that the photograph he had chosen was that of "the registered owner of the car," gave "confirmatory feedback [that] artificially inflate[d] [the] eyewitness's level of confidence in his ... identification." Commonwealth v. Collins, 470 Mass. 255, 263, 21 N.E.3d 528 (2014). But Officer Meaney's testimony that he made this statement was elicited not at the suppression hearing, but only later, at trial. "Evidence adduced at trial but not before the motion judge ... cannot be determinative of the propriety of the motion judge's decision." Commonwealth v. Ramos, 402 Mass. 209, 216, 521 N.E.2d 1002 (1988). In any event, it is far from clear that the statement inflated Santana's confidence in his identification. Officer Meaney testified at the hearing that after Santana chose the defendant's photograph and said "that's the person who was driving the car," the officer asked Santana "how sure he was, and he replied that he was positive." And Santana testified at the hearing that he was "sure" of his identification from the photograph.

Sixth and finally, the defendant notes that, contrary to Lynn police procedures, Officer Meaney did not preserve the photographs from the array or make high quality copies of them; instead, he took a color photograph of the entire array, and that photograph was admitted in evidence at the suppression hearing and at trial. The defendant has not argued, however, that this departure from procedure diminished the accuracy of Santana's identification or furnished any other ground for suppression. Moreover, as noted, the jury were instructed to evaluate "with particular care" an identification not made in accordance with established procedures.

b. Common-law fairness principles. The defendant also argues that the identification should have been excluded under common-law fairness principles, because various factors made it so minimally probative that its value was substantially outweighed by the danger of unfair prejudice arising from the assertedly suggestive circumstances in which it was made. See Johnson, 473 Mass. at 598-602, 45 N.E.3d 83 ; Commonwealth v. Dew, 478 Mass. 304, 315-316, 85 N.E.3d 22 (2017). The defendant notes that Santana had never seen the Prism's driver before the collision, Santana saw him only very briefly, and some time elapsed between the collision and Santana's photographic array identification. See id. at 316, 85 N.E.3d 22 (listing witness's prior familiarity with person identified, opportunity to observe offender at time of crime, and amount of time between crime and identification as factors to be considered). The defendant bears the burden of proof by a preponderance of the evidence, and we review the judge's ruling for abuse of discretion. See Johnson, 473 Mass. at 599, 602, 45 N.E.3d 83.

Here, Santana was able to directly observe the driver during daylight, for long enough to observe what he was wearing, that his left arm was tattooed, and the expression on his face. Santana was sufficiently collected to attempt to steer around the Prism. Although Santana had never seen the driver before, and did not identify him from the photographic array until some weeks after the collision, against these factors detracting from the identification's probative value must be balanced the minimal evidence, discussed supra, that the identification was suggestive. The motion judge was not required to conclude that the identification's probative value was substantially outweighed by the danger of unfair prejudice. He did not abuse his discretion in denying the motion to suppress on this basis.

4. Jury instruction. The defendant argues that it was error to omit that portion of the provisional identification instruction appended to Gomes, 470 Mass. at 381-382, 22 N.E.3d 897 (Appendix), relating to high stress, and providing as follows:

"You should also consider characteristics of the witness when the observation was made, such as the quality of the witness's eyesight, whether the witness knew the offender, and, if so, how well, and whether the witness was under a high degree of stress-high levels of stress, compared to low to medium levels, can reduce an eyewitness's ability to accurately perceive an event" (emphasis added; footnotes omitted).

Because the defendant did not object to this omission, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Keevan, 400 Mass. 557, 564, 511 N.E.2d 534 (1987). As the record does not disclose the reason for the judge's omission, we assume without deciding that it was error, but we conclude that it did not create a substantial risk of a miscarriage of justice.

The omitted language informs the jury that a high degree of stress can reduce accurate observations, but it does not require the jury to conclude that high stress does so, and the jury could have concluded otherwise here. Nor does the language instruct the jury on how to distinguish between "high" levels of stress and "medium" levels, which may actually enhance perception, see Gomes, 470 Mass. at 382 n.9, 22 N.E.3d 897 (Appendix), or "low" levels of stress. Defense counsel forcefully pointed out how stressful the incident must have been in her closing, arguing that Santana had:

"One second to observe.... Mr. Santana's life flashed before his eyes .... He was downshifting to a different gear. He knows a crash is imminent. He's approaching quickly to the car. He's trying to swerve his bike out of the way. He hits the rear quarter panel and is ejected from his motorcycle.... He [re]lied on a one-second observation? ... I would suggest to you that you could not."

In addition, another portion of the judge's instruction correctly conveyed a closely related principle to the jury:

"You the jury must decide whether the witness' identification is accurate. Consider the witness' opportunity to observe the offender at the time of the offense; how good a look the witness had of the offender, the degree of attention the witness was paying to the offender at the time, the distance between the witness and the offender ... and the length of time the witness had to observe the offender."

That the defendant, despite having requested the Gomes instruction, did not object when invited to do so at the conclusion of the charge, see note 14, supra, further suggests that the omission was not prejudicial. See Commonwealth v. Lucien, 440 Mass. 658, 664-665, 801 N.E.2d 247 (2004) (absence of objection weighs against defendant's claim of prejudice). For all of these reasons, "we conclude that there is no substantial risk that [any error in] the judge's instruction ... may have materially influenced the verdict in this case, and therefore no substantial risk of a miscarriage of justice." Commonwealth v. Shea, 467 Mass. 788, 797, 7 N.E.3d 1028 (2014).

Judgments affirmed.

      He was also convicted of operating a motor vehicle that was uninsured and had a suspended registration, but those charges were placed on file with his consent, and his claims of error regarding those charges are not before us. Absent exceptional circumstances, convictions of charges placed on file with the defendant's consent cannot be appealed. See Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975).

      Nothing in the record explains how or when the Prism, after being found on a street in Lynn the day of the collision and being reported stolen two days later, was returned to the defendant's driveway.

      The photographs in the array showed only the upper shoulders and head of each individual. The defendant's memorandum in support of his motion to suppress asserted that the tattoos "do not in fact exist exactly as described" by Santana to Officer Meaney. There was no testimony at the motion hearing or trial regarding whether or how the defendant was tattooed.

      The relevant portion of G. L. c. 90, § 22(d ), as amended by St. 1969, c. 637, provides:
      "Notice to any person whose license or registration certificate or right to operate is suspended or revoked under this section or notice to any person of intention to revoke or suspend his license or registration certificate under this section shall be in writing, shall be mailed by the registrar or any person authorized by him ... and a certificate of the registrar that such notice has been mailed in accordance with this section shall be deemed prima facie evidence and shall be admissible in any court of the commonwealth as to the facts contained therein."

      This "USPS ID" number was different from the one appearing on the notice that the Prism's registration had been suspended and its corresponding mailing confirmation, permitting the inference that each notice and corresponding mailing confirmation are assigned a different USPS ID number.

      The mailing of notice by the registry is not itself an element of the offense; rather, such mailing is ordinarily offered as prima facie proof of the element that the defendant received notice of the license suspension or revocation. See Commonwealth v. Crosscup, 369 Mass. 228, 231, 239-242, 339 N.E.2d 731 (1975) ; Deramo, 436 Mass. at 50-51, 762 N.E.2d 815 ; Parenteau, 460 Mass. at 6, 948 N.E.2d 883. Moreover, proof of mailing by the registry is not essential; proof of "the defendant's actual knowledge that his license was revoked" will suffice, even without proof of "precisely how that actual knowledge was acquired." Deramo, 436 Mass. at 51-52, 762 N.E.2d 815. See Commonwealth v. Oyewole, 470 Mass. 1015, 1016, 21 N.E.3d 179 (2014) (suggesting that notice element could be satisfied by proof that suspension was communicated to defendant by judge in open court or that docket sheet reflecting suspension was shown to defendant).

      For purposes of this argument we assume that the defendant is correct in characterizing the registry's mailing of notice as proving an element of the offense. But see note 6, supra.

      The defendant further argues that, because Santana's identification based on the photographic array should have been suppressed, his in-court identification should also have been excluded, because it did not meet the independent-source standard as reiterated in Commonwealth v. Johnson, 473 Mass. 594, 602, 45 N.E.3d 83 (2016). Because we conclude that the suppression motion was properly denied, we need not reach the latter issue.

      This suspicion was bolstered by the defendant's report that his locked Prism had been stolen, combined with Officer Meaney's observations that the Prism parked in the defendant's driveway eight days after the collision had no damage to the windows, ignition, or steering column, although its rear quarter panel was damaged.

      Santana actually described a hybrid procedure in which he looked at each photograph as Officer Meaney placed it in front of him on a table, until there were six photographs in front of him; after looking at all of them for another thirty seconds, he chose the defendant's photograph.

      We cite Thomas and the model instructions for convenience, while recognizing that the judge at the trial here, in June, 2015, did not yet have the benefit of the model instructions and was working instead from the provisional instructions appended to the decision in Gomes, 470 Mass. 352, 385-386, 22 N.E.3d 897 (Appendix).

      The defendant also argues, for the first time on appeal, that Santana's opportunity to observe the driver was diminished, and thus his identification was less reliable, because Santana was under high stress just before the collision. See Gomes, 470 Mass. at 372, 380, 22 N.E.3d 897. Even if such high stress was present here and is a factor to be considered in the common-law test, but see Dew, 478 Mass. at 316, 85 N.E.3d 22, it did not, even in combination with the other factors the defendant cites, render the identification so unreliable as to make its admission an abuse of discretion.

      The defendant also argues, for the first time on appeal, that his dark skin created a risk of cross-racial or cross-ethnic misidentification. See Commonwealth v. Bastaldo, 472 Mass. 16, 27-30, 32 N.E.3d 873 (2015), decided after the trial in this case, announcing a prospective rule regarding an instruction on cross-racial identifications. Here, the sole indication of race in the record is a report created by Officer Meaney, within a week after Santana was shown the photographic array, listing the defendant's race as "white" and Santana's as "unknown."

      Before closing arguments, the defendant requested the Gomes instruction; the judge replied that she would give it, but that parts of it were not required, and she would give those parts she thought relevant. After her charge, the judge asked if the parties had "requests for additions, corrections, or objections"; defense counsel replied that she had none. "[W]hen a judge agrees to give a requested instruction ... any claim of error in the adequacy of the instruction must be preserved for appellate review by a postcharge objection." Commonwealth v. Arias, 84 Mass. App. Ct. 454, 463, 997 N.E.2d 1200 (2013).

      The jury could have determined from Santana's testimony describing the defendant's arm position, clothing, facial expression, and tattoos, as well as Santana's detailed description of the various measures he considered and took to avoid the collision and injury to himself, that whatever level of stress Santana was experiencing did not appear to have impaired his ability to accurately perceive the events.

      We do not mean to suggest that this portion of the instruction, which was also drawn from the Gomes provisional instruction, 470 Mass. at 380, 22 N.E.3d 897, and appears in different form in the Model Jury Instructions, 473 Mass. at 1054, is a substitute for the high-stress instruction.


source: Caselaw Access Project

author: ENGLANDER, J.

license: Public Domain

text:
    Amanda L. SMITH v. Robert SMITH.
    No. 17-P-765
    Appeals Court of Massachusetts, Essex..
    Argued February 6, 2018. Decided June 7, 2018.
    Lisa Stern Taylor, Salem, for the wife.
    Cheryl Garrity, Burlington, for the husband.
    Present: Wolohojian, Agnes, & Englander, JJ.
   ENGLANDER, J.

In this case we consider the legal effect of a series of postdivorce agreements between former spouses which reduced court-ordered alimony, where those agreements were reached without court approval. After a trial on a complaint for contempt, a Probate and Family Court judge found that the former husband had "detrimentally relied" on the postdivorce agreements, and the judge gave effect to those agreements by "modifying" the alimony obligation retroactively (but not prospectively) such that the husband was relieved from paying alimony that had gone unpaid. The judge also found the husband "not guilty" of civil contempt as to the nonpayment of alimony. We affirm the judgment of no contempt. However, because the judge's order does not apply the correct legal standard and thus does not provide sufficient findings to support the retroactive modification of alimony, we reverse and remand as to that issue.

Background. The husband and the wife were married in 1983 and divorced in 2010. The parties entered into a divorce agreement on April 14, 2010, which set alimony at $650 per week. The agreement specifically provided that "matters concerning alimony" would merge into the divorce judgment, and would be "modifiable by the [c]ourt in the event of a material change in circumstances." The judgment of divorce entered April 26, 2010, and incorporated the divorce agreement with respect to alimony. Between August, 2011, and August, 2015, the husband paid alimony at a rate that was less than the rate set in the divorce agreement. The husband reduced the amount paid nine separate times, beginning at $2,000 per month in August of 2011, and reducing to, at the end, $800 per month by September of 2014.

The judge found that the husband and the wife agreed to these reduced rates. No complaint for modification was filed with the court in connection with any of the reductions. In August, 2015, after receiving a letter from the wife's lawyer, the husband resumed paying alimony equal to $650 per week, and thereafter continued to make those payments. In total, over a roughly four-year period from 2011 to 2015, the husband paid $87,400 less alimony than the amounts called for by the divorce agreement.

On March 10, 2016, the wife filed a complaint for contempt, the resolution of which led to this appeal. As part of that complaint the wife sought the $87,400 arrearage.

The husband answered that the wife had agreed to the alimony reductions, and that as a result he had made payments to cover costs for their emancipated children that he otherwise would not have made. He argued that these facts gave rise to defenses of estoppel and laches. After trial, the judge found the husband "not guilty" of civil contempt; she also entered an order "retroactively modif[ying]" the husband's alimony obligation so that it matched the amounts he actually paid between 2011 and 2015. The judge found:

"that the parties made agreements with one another at numerous dates between June, 2011[,] and December, 2015[,] for defendant to pay and plaintiff to receive reduced amounts of alimony. Plaintiff testified that she agreed to those changes and further testified that the parties discussed each change either on the telephone or through [electronic mail]. In reliance upon the reductions in alimony, defendant assumed additional financial responsibilities with reference to the parties' children, albeit emancipated children. Defendant paid graduate school tuition for the parties' daughter; he paid monies toward the daughter's wedding; he gave both the daughter and one son money toward a down-payment on their first home; [and] he assisted one son in the payment of liabilities."

The wife appeals.

Discussion. 1. Contempt. We first address the charge of contempt. To prove civil contempt a plaintiff must show two elements: there must be (1) clear disobedience of (2) a clear and unequivocal command. See Birchall, petitioner, 454 Mass. 837, 852, 913 N.E.2d 799 (2009). The contempt must be proved by clear and convincing evidence, and the court is to consider "the totality of the circumstances." Wooters v. Wooters, 74 Mass. App. Ct. 839, 844, 911 N.E.2d 234 (2009). Here, the judge found the husband not in contempt, citing the agreements between the husband and the wife that specifically contemplated that the husband would pay the reduced alimony that he actually paid.

We review the judge's ruling that the husband was not in contempt for abuse of discretion, see L.F. v. L.J., 71 Mass. App. Ct. 813, 821, 887 N.E.2d 294 (2008), and here the ruling must be affirmed. The wife's position is that because the divorce agreement and judgment was clear as to the husband's alimony obligations and also clear that those obligations could only be modified by court order, a contempt finding must follow essentially as a matter of law, because the husband admittedly did not pay the amount required or obtain modification by the court. That position cannot be accepted, however, as it would require a finding of contempt based only upon violation of a "clear and unequivocal command"; the contention ignores the additional requirement that the plaintiff show "clear and undoubted disobedience."

The case law demonstrates that not every violation of a clear order will constitute contempt, and thus that the requirement to prove "clear disobedience" has teeth. For example, a person cannot be found in contempt of an order to pay money that he or she is unable to pay. See Birchall, petitioner, 454 Mass. at 852, 913 N.E.2d 799. And in Wooters, 74 Mass. App. Ct. at 844, 911 N.E.2d 234, this court ruled that a supporting spouse had failed to pay the alimony required by a court order, but nevertheless ruled that there was no contempt: "In our view, the husband's disagreement or misunderstanding of the issue does not constitute clear and undoubted disobedience of a clear and unequivocal command." While the decision in Wooters could be found to rest on either prong of the contempt standard, it plainly stands for the proposition that the violation of an order to pay alimony does not necessarily require a finding of contempt.

The husband's actions must be judged in the totality of the circumstances, and here the judge found (1) that the wife had agreed, in advance, to the reductions in alimony, and (2) that in reliance thereon, the husband had made the payments agreed upon and also had changed his behavior, to his detriment, by assuming "additional financial responsibilities" with respect to the parties' emancipated children. It was within the judge's discretion to conclude there was no "clear and undoubted disobedience" on these facts.

2. The retroactive alimony modification. The judge also ordered that "[t]he defendant's alimony obligation is retroactively modified to the amounts paid through June 14, 2016." This modification was based on the same findings that supported the decision that the husband was not in contempt. As noted above, however, the two issues are distinct; a party may not be in contempt, yet still owe alimony under the existing court order. See Wooters, 74 Mass. App. Ct. at 841-844, 911 N.E.2d 234. See also Poras v. Pauling, 70 Mass. App. Ct. 535, 541-543, 874 N.E.2d 1127 (2007). The issue here is whether the judge's retroactive modification is properly supported by the judge's findings.

The judge's analysis and findings in this case were not sufficient to justify the retroactive modification of alimony. The relevant analytical framework begins with the Supreme Judicial Court's decision in Pierce v. Pierce, 455 Mass. 286, 305, 916 N.E.2d 330 (2009), in which the court confirmed that a Probate and Family Court judge has the authority to reduce or eliminate an alimony obligation, even as to alimony payable in arrears. The court in Pierce was confronted with a request to retroactively modify alimony because the supporting spouse had retired, and in that context the court held that retroactive modification was within the judge's discretion, but that the judge must first make findings "reflecting her consideration of all the factors mandated by G. L. c. 208, § 34." Id. at 306, 916 N.E.2d 330. By citing § 34, the Pierce court invoked the established framework for setting alimony, which includes a number of considerations such as the length and history of the marriage, the ages of the parties, and the parties' respective financial situations, needs, and earning capabilities. See id. at 295, 916 N.E.2d 330.

Additionally, prior to the decision in Pierce, the case law had also established that an alimony order could only be modified upon a showing of a "material change of circumstances." Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981). See Binder v. Binder, 7 Mass. App. Ct. 751, 754, 390 N.E.2d 260 (1979) ; Kelley v. Kelley, 64 Mass. App. Ct. 733, 739-740, 835 N.E.2d 315 (2005). In general, courts considering modification under this test have looked to the § 34 factors when evaluating the relevant "circumstances." See, e.g., Griffith v. Griffith, 24 Mass. App. Ct. 943, 945, 509 N.E.2d 38 (1987) ; Kelley, supra at 739 & n.6, 835 N.E.2d 315.

Because the judge in this case did not address the § 34 factors, the judge's ruling cannot be squared with the Pierce case, and the retroactive modification portion of the judgment must be reversed and the matter remanded for additional consideration and findings.

On remand, the judge should consider and evaluate the factors enumerated in § 34, including whether there has been a "material change in circumstances" with respect to those factors since the divorce judgment entered. In this connection the appropriate circumstances for consideration may include postdivorce conduct of the parties such as are present here, where a former spouse made certain statements and the other spouse detrimentally changed position in reliance thereon. Those facts, however, should be considered in the broader context of all the relevant § 34 factors, and any other material postdivorce changes to same. In so ruling, we do not mean to suggest, or to foreclose, any particular outcome after further consideration.

We have considered whether the equitable defenses of estoppel and laches, raised by the husband, can provide an independent basis for avoiding a claim for alimony owed in arrears, or whether an analysis of the § 34 factors will always be required. In this context we believe that those equitable defenses are not independently available. The case law indicates that laches is not a defense to such claims. See Brash v. Brash, 407 Mass. 101, 104-105, 551 N.E.2d 523 (1990) (laches not a defense to an action for the division of property under § 34 ). See also Bullock v. Zeiders, 12 Mass. App. Ct. 634, 636-637, 428 N.E.2d 311 (1981). As to estoppel, we think the better rule is that any facts which might give rise to an estoppel should be considered in the context of the § 34 factors. Accordingly, even where all the elements of estoppel are shown, the judge must still evaluate the remaining § 34 factors, so that the relevant context is known before determining whether a defendant should be relieved from an unpaid alimony obligation.

The judgment finding the husband not guilty of civil contempt is affirmed. That portion of the judgment retroactively modifying the husband's alimony obligations is vacated, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

      We set forth those facts that are undisputed, as well as the facts found by the trial judge. The wife does not challenge any of the court's subsidiary findings as clearly erroneous.

      The wife states, in her brief, that she only agreed to the alimony reductions because the husband called her on the telephone and "yelled at her." To the extent the wife is arguing that the judge's finding that she agreed to the alimony reductions is clearly erroneous (no such argument is expressly made), we reject the contention. Both the wife and the husband testified at trial, and it was for the judge to resolve any conflicts in the testimony. Here, there was sufficient evidence for the judge to find that the wife agreed to the alimony reductions; implicit in that finding is that the agreements were not coerced.

      The husband did not file a separate complaint for modification, but none was required. The judge could properly modify the alimony provision as part of her ruling on the contempt complaint. See Emery v. Sturtevant, 91 Mass. App. Ct. 502, 513, 76 N.E.3d 1039 (2017).

      After Pierce was decided and after the divorce judgment in this case, the Legislature enacted the Alimony Reform Act of 2011 (Act). That Act included a new section, G. L. c. 208, § 53, which made explicit the considerations for setting alimony. The new § 53 does not apply retroactively to a modification of the 2010 divorce judgment at issue. See Chin v. Merriot, 470 Mass. 527, 531, 23 N.E.3d 929 (2015) ("These provisions reflect the Legislature's intent that the act apply prospectively except as to 'durational limits' "); Rosenwasser v. Rosenwasser, 89 Mass. App. Ct. 577, 590 n.11, 52 N.E.3d 1075 (2016). See also Hassey v. Hassey, 85 Mass. App. Ct. 518, 524, 11 N.E.3d 661 (2014) ("The Act makes no change in the fundamental purpose of alimony ...").

      A further consideration is whether such reliance was reasonable under the circumstances. See, e.g., Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 125, 596 N.E.2d 989 (1992).

      We note that the new G. L. c. 208, § 53(e ), which does not apply in this case, but which sets forth the alimony factors to be applied in the future under the Act, expressly invites consideration of "any other factor that the court deems relevant and material." Id. at § 53(e )(9).

      Although a judge may, in appropriate circumstances, retroactively modify alimony, it does not follow that such relief will always be afforded simply because the parties have reached an agreement-without court involvement-to reduce the payor's alimony obligation. Indeed, where no court approval has been obtained, the parties proceed at their own risk.


author: SINGH, J.

text:
    COMMONWEALTH v. Courage K. ASASE.
    No. 17-P-247
    Appeals Court of Massachusetts, Suffolk..
    Argued February 5, 2018 Decided June 7, 2018
    Paul B. Lewis, Assistant District Attorney, for the Commonwealth.
    Steven J. Topazio, Boston, for the defendant.
    Present: Green, C.J., Henry, & Singh, JJ.
   SINGH, J.

After jury trial in the Boston Municipal Court, the defendant was convicted of assault and battery on a pregnant person. Due to continuances for various reasons, the defendant was not sentenced for over six months after his conviction. The judge ultimately sentenced the defendant to three months in a house of correction, suspended for six months (during which time the defendant would be on probation), and ordered the sentence imposed nunc pro tunc to the date of the defendant's conviction. The result was that the defendant was discharged from probation without ever having been placed on probation. The Commonwealth filed a timely motion to revise and revoke the defendant's sentence, which was denied. This appeal followed. For the reasons set forth below, we conclude that the nunc pro tunc probationary sentence was not a lawful sentence. We vacate the sentence and remand for resentencing.

Background. In September of 2015, a complaint issued against the defendant for assault and battery on a pregnant person (his wife), and intimidation of a witness. During the pendency of the proceedings, the defendant was free on $500 bail and the condition that he not abuse his wife. The defendant's wife did not testify at trial, though her statements were admitted through a 911 recording introduced by the Commonwealth. After a two-day jury trial, on April 13, 2016, the defendant was convicted of assault and battery on a pregnant person, and acquitted of intimidation of a witness. The Commonwealth moved for sentencing, and requested that the defendant be sentenced to a three-year term of probation, with conditions including that he complete a certified batterer's intervention program (CBIP). The defendant requested that his conviction be filed for three years, to avoid potential immigration consequences.

The judge asked the parties to prepare sentencing memoranda, which were submitted, and the parties reconvened on July 27, 2016. At that time, the judge requested a further memorandum from the Commonwealth specifically addressing the defendant's proposed disposition. In its response, the Commonwealth reasserted its recommendation and objected to placing the defendant's conviction on file, noting that such a disposition could not be imposed without the Commonwealth's consent. The judge ultimately set a sentencing date of November 1, 2016, and on that date sentenced the defendant to three months in a house of correction, suspended for six months, nunc pro tunc to April 13, 2016. In the same order, the judge retroactively discharged the defendant from probation, effective October 13, 2016.

The Commonwealth filed a motion to revise and revoke the sentence that was dated December 23, 2016, and the judge denied the motion in a memorandum dated January 10, 2017. The Commonwealth then appealed from the order denying its motion to this court.

Discussion. The Commonwealth argues that the nunc pro tunc provision of the defendant's sentence transformed it into "an illusory sentence," and rendered it illegal. "An illegal sentence is one that is not permitted by law for the offense committed." Commonwealth v. McGuinness, 421 Mass. 472, 475, 658 N.E.2d 150 (1995). In reviewing a sentence for illegality, "[w]e begin with the proposition that 'a judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence.' " Commonwealth v. Shea, 46 Mass. App. Ct. 196, 197, 704 N.E.2d 518 (1999), quoting from Commonwealth v. Goodwin, 414 Mass. 88, 92, 605 N.E.2d 827 (1993).

We turn then to the statutes at issue here. Pursuant to G. L. c. 265, § 13A(b )(ii), assault and battery on a pregnant person must be punished by imprisonment or fine, or by both imprisonment and fine. Section 1A of G. L. 279, amended by St. 1975, c. 459, § 1, allows the court to "direct that the execution of the sentence, or any part thereof, be suspended, and that [the defendant] be placed on probation for such time and on such terms and conditions as it shall fix." The probation statute, G. L. c. 276, § 87, further provides that a District Court "may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper ... in any case after a finding or verdict of guilty" (emphasis added).

Generally, "a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated."

McNeil v. Commissioner of Correction, 417 Mass. 818, 821-822, 633 N.E.2d 399 (1994), quoting from Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975).

Here, the plain language of the probation statute authorizes a court only to place a defendant on probation "in the care of its probation officer." This requirement is in furtherance of the purpose of the statute. "The principal goals of probation are rehabilitation of the defendant and protection of the public," with others including "punishment, deterrence, and retribution." Commonwealth v. Lapointe, 435 Mass. 455, 459, 759 N.E.2d 294 (2001). "The purpose of probation rather than immediate execution of a term of imprisonment 'in large part is to enable the [convicted] person to get on his feet, to become law abiding and to lead a useful and upright life under the fostering influence of the probation officer.' " Commonwealth v. Wilcox, 446 Mass. 61, 64, 841 N.E.2d 1240 (2006), quoting from Mariano v. Judge of Dist. Ct. of Cent. Berkshire, 243 Mass. 90, 93, 137 N.E. 369 (1922).

"Probation obliges a defendant, under the oversight of a probation officer, to comply with the general conditions of probation-including the obligation to obey all laws, to report to a probation officer, and to notify the officer of a change of address-as well as any special conditions of probation tailored to the defendant." Commonwealth v. Powers, 73 Mass. App. Ct. 186, 188, 896 N.E.2d 644 (2008) (probation not equivalent to "mere bond requiring a defendant to keep the peace"). "If a defendant violates one or more conditions of probation, a judge may revoke his probation and sentence him to a term of imprisonment for his underlying conviction, or return the defendant to probation, with new or revised conditions." Commonwealth v. Goodwin, 458 Mass. 11, 15, 933 N.E.2d 925 (2010).

Probation must be "couple[d] ... with a supervisory element to ensure that the probationer abides by the probationary terms." Commonwealth v. Taylor, 428 Mass. 623, 626, 704 N.E.2d 170 (1999). That court supervision is an essential element of probation is not inconsistent with the common use of administrative probation supervision. "Administrative supervision has long been recognized as a form of probation supervision and is used when the court intends no direct probation officer intervention beyond the collection of monies and the enforcement of any other specific court order." Commonwealth v. Rotonda, 434 Mass. 211, 219 n.12, 747 N.E.2d 1199 (2001). A defendant administratively supervised is nonetheless "on probation and [is] subject to some less formal type of supervision." Id.

In the case at bar, the nunc pro tunc disposition purported to subject the defendant to probation, which began on the date of his conviction, but encompassed only a term during which the case was continued and he was free on bail with a condition not to abuse the victim. During this term, the defendant faced the possibility of having his bail revoked for failure to abide by the conditions of release, but he did not face the possibility of revocation of probation, reprobation, imprisonment for his underlying conviction, or other punishment consistent with violation of a lawful probationary sentence. Even where subject to conditions, "[c]ontinuing [a] case ... is not the equivalent of probation." Taylor, 428 Mass. at 626, 704 N.E.2d 170 (continuance conditioned on defendant abiding by restraining order and submitting to substance abuse evaluation and counselling not equivalent to probation). "Probation is a creature of statute ... with deep roots in the Commonwealth." Wilcox, 446 Mass. at 64, 841 N.E.2d 1240. "Artful nomenclature will not turn a statute authorizing probation into authorization for a continuance ruling. Absent this judicial alchemy, G. L. c. 276, § 87, provides no such authority." Taylor, 428 Mass. at 626, 704 N.E.2d 170. Thus, the nunc pro tunc sentence here did not constitute a lawful probationary sentence pursuant to the probation statute.

Because the defendant's sentence did not constitute probation, incarceration, or a fine, it was not within the range of permissible punishments for the defendant's offense under the relevant statutes, and cannot stand.

Conclusion. The order denying the motion to revise and revoke an illegal sentence is reversed. We remand this case for resentencing.

So ordered.

      See Mass.R.Crim.P. 28(e), 453 Mass. 1501 (2009) ("The court may file a case after a guilty verdict or finding without imposing a sentence if the defendant and the Commonwealth both consent").

      The Commonwealth had earlier filed a petition with the Supreme Judicial Court pursuant to G. L. c. 211, § 3, seeking a supervisory order vacating the sentence as unlawful. The single justice denied the Commonwealth's petition, indicating that it had an "adequate, alternative remedy."

      In his memorandum of decision denying the motion to revise and revoke, the judge explained that he had made the sentence nunc pro tunc because it was the sentence he would have imposed on the date of conviction, had he had the necessary information on that date. Ordinarily, an order is made nunc pro tunc to reflect in the record something that actually took place but that due to some oversight was not correctly documented. See Commonwealth v. Walters, 479 Mass. 277, 279, 94 N.E.3d 764 (2018) (after remand for resentencing, term of incarceration made nunc pro tunc to reflect credit for time actually served). From the judge's comment that the "delay in sentencing cannot be charged to the [d]efendant," we infer that he was using the nunc pro tunc disposition "to prevent a failure of justice resulting ... from delay in court proceedings subsequent to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement." Perkins v. Perkins, 225 Mass. 392, 396, 114 N.E. 713 (1917). Even so, the sentence imposed must be legal.

      Administrative probation supervision is sometimes colloquially referred to as "unsupervised probation," a contradiction in terms. See Commonwealth v. Rotonda, 434 Mass. 211, 219 n.12, 747 N.E.2d 1199 (2001).

      We note that the defendant's conviction involves a case of domestic violence, a felony charge, and an aggravated form of assault and battery. In these circumstances, probation standards provide for a presumptive high risk classification, indicating the need for intensive supervision. See § V(G) of the Standards and Forms for the Risk/Need Classification System and Probation Supervision for the Probation Offices of the District, Boston Municipal and Superior Courts (November 2014).


author: DITKOFF, J.

text:
    COMMONWEALTH v. Lucas ORTIZ.
    16-P-1654
    Appeals Court of Massachusetts, Plymouth..
    Argued January 8, 2018 Decided June 13, 2018
    James J. Cipoletta, Revere, for the defendant.
    Christina L. Crowley, Assistant District Attorney, for the Commonwealth.
    Present: Blake, Neyman, & Ditkoff, JJ.
   DITKOFF, J.

Following a Superior Court jury trial on the Commonwealth's petition pursuant to G. L. c. 123A, § 12(b ), the defendant, Lucas Ortiz, was found to be a sexually dangerous person (SDP) as defined by G. L. c. 123A, § 1, and was ordered committed to the Massachusetts Treatment Center. On appeal, the defendant claims that the trial judge improperly excluded the results of a penile plethysmograph (PPG) exam conducted by his retained expert. Concluding that the PPG was subject to assessment for reliability under Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342 (1994), and that the judge acted within his discretion in finding that the defendant failed to show that the absence of deviant arousal on the PPG as conducted by the examining expert is a reliable basis for diagnosis or predictions of future sexual dangerousness, we affirm.

Background. At the time of trial, the defendant was thirty-nine years old. In 1992, when the defendant was seventeen years old, he was a member of a Boy Scout troop. During this time, he committed sexual offenses against four younger Boy Scouts who were between the ages of eleven and thirteen years old. During each of the offenses, the defendant told the child that he had a son who was taken by kidnappers and that his son's release would be facilitated by the child having sexual intercourse with the defendant. In one of the offenses, the defendant threatened the boy with a knife. In 1993, the defendant committed an additional sexual offense against a twelve year old boy using the ruse of conducting a physical exam of the child as a condition to becoming a member of a gang.

As a result of these offenses, the defendant was convicted of multiple counts of rape of a child and indecent assault and battery on a child, and one count of assault by means of a dangerous weapon. He was incarcerated for two years, and in 1995 he was released on probation. As a condition of his probation, the defendant was ordered to have no unsupervised contact with individuals under the age of eighteen.

Within six months of his release from incarceration, the defendant befriended a fifteen year old boy. While alone in a car with the boy, the defendant demanded that the boy perform oral sex on him, and threatened him at knifepoint. The defendant was found to have violated his probation on the earlier offenses, and ultimately was convicted of indecent assault and battery, assault and battery, and assault by means of a dangerous weapon. The defendant continued to be incarcerated through 2012, at which time the Commonwealth filed the instant petition in anticipation of his release from custody.

Pursuant to G. L. c. 123A, § 13(a ), the defendant was examined by two qualified examiners. Each of the examiners prepared reports opining that the defendant was sexually dangerous pursuant to the statute and likely to reoffend sexually. The qualified examiners each diagnosed the defendant with pedophilia, as well as other sexual and personality disorders relevant to his likelihood of reoffending.

The defendant was also examined by two experts retained by him. A psychologist specializing in neuropsychology examined the defendant and opined that he suffered from no diagnosable mental illness. A second psychologist, Dr. Joseph Plaud, opined that the defendant could not be diagnosed with a sexually-based mental disorder or personality disorder.

Dr. Plaud's opinion relied in part on his examination of the defendant using a PPG. He reported that when examined, the defendant displayed sexual arousal to adult consensual sexual scenarios, and did not display deviant arousal to children.

Prior to trial, the Commonwealth filed a motion to exclude from evidence the results of the PPG test conducted by Dr. Plaud, arguing that the test was not reliable and that, regardless, the Commonwealth had not received timely notice of the evidence. The trial judge conducted a Daubert- Lanigan hearing midtrial.

At the hearing, the defendant presented only the testimony of Dr. Plaud. Dr. Plaud testified that the PPG is a device designed to measure an individual's pattern of arousal in response to different sexual stimuli. The device acts by using a mercury and rubber band to measure changes in the tumescence of the penis. When Dr. Plaud conducts testing, the device is applied by the individual being tested, without his supervision.

The stimuli used in the exam are not standardized, and Dr. Plaud testified that he had developed his own set. Although many treatment programs use solely auditory stimuli, Dr. Plaud uses both auditory and visual stimuli. Dr. Plaud conceded that the test was subject to manipulation by intentional failure to pay attention to the stimulus, but indicated that he had devised certain measures to avoid this, such as requiring a subject to respond to dots appearing on the screen at random intervals. Dr. Plaud indicated that medications could affect test results as well.

Dr. Plaud agreed that false positives and false negatives are an issue with the PPG, and had previously written in an article that the PPG has a false positive error rate of about thirty-five percent. About one-third of sexual offenders show no arousal pattern in response to the exam, and "the vast majority of rapists" show no deviant arousal according to the exam. Although Dr. Plaud testified that studies have correlated deviant arousal as measured by the PPG with increased levels of recidivism, he was not aware of any studies demonstrating that lack of deviant sexual arousal was correlated with the absence of reoffense.

Dr. Plaud testified that there are "thousands and thousands and thousands" of studies using the PPG. During the hearing, however, the defendant did not submit any scholarly articles in evidence. Neither the machine itself nor photographs of it were submitted to the court during the hearing, nor were the stimuli Dr. Plaud used with the defendant. Dr. Plaud testified that he administered the PPG to the defendant using fifteen stimulus images. He was not aware of whether the defendant took any medication that would affect the test results.

After the hearing, the judge excluded the PPG evidence, issuing a written memorandum after the conclusion of the trial. The defendant was permitted to call Dr. Plaud to testify without discussing the PPG, and references to the PPG examination were redacted from his written report.

The defendant now argues that, in the circumstances of this case, the Daubert- Lanigan standards are inapplicable in considering the admissibility of the PPG evidence, and that, even if such standards applied, the PPG evidence was improperly excluded.

Discussion. 1. Standard of review. "The judge serves as a gatekeeper on the admission of expert opinion testimony."

Hicks's Case, 62 Mass. App. Ct. 755, 760, 820 N.E.2d 826 (2005). In making a determination of whether expert testimony is sufficiently reliable to be admitted before a trier of fact, a judge must conduct "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Lanigan, 419 Mass. at 26, 641 N.E.2d 1342, quoting from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Mass. G. Evid. § 104(a) (2018) ("The court must decide any preliminary question about whether ... evidence is admissible").

Under Daubert- Lanigan, a judge "initially considers a nonexclusive list of ... factors [including] 'whether the scientific theory or process (1) has been generally accepted in the relevant scientific community; (2) has been, or can be, subjected to testing; (3) has been subjected to peer review and publication; (4) has an unacceptably high known or potential rate of error; and (5) is governed by recognized standards.' " Commonwealth v. Camblin, 478 Mass. 469, 475-476, 86 N.E.3d 464 (2017), quoting from Commonwealth v. Powell, 450 Mass. 229, 238, 877 N.E.2d 589 (2007). See Mass. G. Evid. § 702 (2018).

Daubert- Lanigan analysis must be flexible, and "[d]iffering types of methodology may require judges to apply differing evaluative criteria to determine whether scientific methodology is reliable." Canavan's Case, 432 Mass. 304, 314 n.5, 733 N.E.2d 1042 (2000). A trial judge has "broad discretion to determine how to assess the reliability of expert testimony." Palandjian v. Foster, 446 Mass. 100, 111, 842 N.E.2d 916 (2006). "[I]f the process or theory underlying an expert's opinion lacks sufficient reliability or an expert cannot provide a reliable factual basis for his conclusions, the trial judge must exclude the opinion from reaching the trier of fact." Commonwealth v. DiCicco, 470 Mass 720, 729, 25 N.E.3d 859 (2015), citing Lanigan, 419 Mass. at 25-26, 641 N.E.2d 1342.

"We review a judge's determination to admit or exclude expert testimony under Daubert- Lanigan for an abuse of discretion." DiCicco, 470 Mass. at 729, 25 N.E.3d 859. The proponent of expert testimony, here the defendant, has the burden to establish the reliability of the proffered testimony. Ibid., citing Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 n.41, 930 N.E.2d 91 (2010).

2. Automatic admissibility. Citing G. L. c. 123A, § 14(c ), the defendant argues that the PPG evidence here at issue should not have been subject to a Daubert- Lanigan analysis in the first instance, as it was automatically admissible as a portion of an expert report in an SDP case. We disagree.

To date, the Supreme Judicial Court has declined to consider the reliability and admissibility of PPG testing, and our decisional law has not yet addressed the question. See, e.g., Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 795, 897 N.E.2d 992 (2008). Because the PPG is "not expressly made admissible by statute, nor ... an essential part of the qualified examiners' evaluation as set out in the statute," evidence regarding it "must be independently admissible." Gammell, petitioner, 86 Mass. App. Ct. 8, 15, 12 N.E.3d 409 (2014). See ibid. (PPG testing not per se admissible pursuant to SDP statute). Thus, it "must undergo an assessment under the standards of Daubert- Lanigan." Esteraz, petitioner, 90 Mass. App. Ct. 330, 335, 58 N.E.3d 1100 (2016). See id. at 334-335, 58 N.E.3d 1100 (determination as to admissibility at trial of actuarial tool used to estimate probability of reoffense required Daubert- Lanigan hearing).

3. Application of Daubert - Lanigan. After a thorough review of the record, we conclude that the judge did not abuse his discretion in determining that the defendant failed to establish the reliability of the PPG as used by Dr. Plaud.

First, we discern no error in the judge's finding that, although the PPG appears to be commonly used as a tool in the treatment of sex offenders, it is not generally accepted in the clinical community for use in diagnosis. "In determining whether experts generally accept the reliability of [scientific] evidence, we may properly consider not only the testimony of experts in the record before us but also articles written by experts and the conclusions of other courts." Commonwealth v. Kater, 388 Mass. 519, 527, 447 N.E.2d 1190 (1983), citing Commonwealth v. Vitello, 376 Mass. 426, 431, 381 N.E.2d 582 (1978).

Although Dr. Plaud conceded that opinions among experts conflict as to the reliability of the PPG, he testified that the test is nevertheless generally accepted and that there are "thousands and thousands and thousands of studies utilizing the PPG." After Dr. Plaud indicated that he could provide a bibliography of research establishing the validity of the PPG, the defendant asked for leave to provide it at a later time. Although he was given permission to do so, the defendant submitted neither the bibliography, nor any studies or other scholarly literature. A judge is not required to "admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), quoting from General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Accord Canavan's Case, 432 Mass. at 315, 733 N.E.2d 1042.

The defendant contends that reference made to the PPG in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V) also establishes the general acceptance of the test among clinicians. The DSM-V's description of the PPG, however, falls short of endorsing its use for diagnosis, specifically cautioning that the exam's "sensitivity and specificity of diagnosis may vary from one site to another." Id. at 699. On the whole, the DSM-V's language is not inconsistent with the proposition that general acceptance of the test is limited to its treatment applications.

A review of decisional law in other jurisdictions is not to the contrary. Many courts have expressed serious concern as to the reliability of the PPG. See, e.g., United States v. Powers, 59 F.3d 1460, 1471 (4th Cir. 1995) (trial court did not abuse its discretion when it excluded PPG results because of the test's failure to satisfy the "scientific validity" prong of Daubert ); Doe v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000) (though useful in treatment, "courts are uniform in their assertion that the results of [PPG]s are inadmissible as evidence because there are no accepted standards for this test in the scientific community"); United States v. Weber, 451 F.3d 552, 564-566 (9th Cir. 2006) (detailing serious concerns as to the accuracy and reliability of PPG, while acknowledging its potential value in treatment); Kirk v. State, 520 S.W.3d 443, 462-463 (Mo. 2017) (trial court did not abuse its discretion in excluding PPG in sex offender civil commitment trial based on lack of reliability and subject's ability to manipulate results); North Carolina v. Spencer, 119 N.C. App. 662, 667-668, 459 S.E.2d 812 (1995) (trial court did not abuse its discretion in excluding PPG based on reliability); Mitchell v. State, 420 S.W.3d 448, 452-454 (Tex. Ct. App. 2014) (endorsing the potential value of PPG for treatment purposes, but expressing concern as to its evidentiary reliability due to subject manipulation and lack of uniform standards). The appellate cases cited by the defendant, by contrast, are either largely inconclusive, see In re Detention of Halgren, 156 Wash. 2d 795, 806, 132 P.3d 714 (2006) ("PPG examination has not been accepted as, by itself, a predictor of recidivism"), or inapplicable to our analysis based on diverging State rules on the admissibility of scientific evidence. See State v. Fullwood, 22 So.3d 655, 656-657 (Fla. Dist. Ct. App. 2009) (declining to assess the reliability of PPG testing); In re Commitment of Sandry, 367 Ill. App. 3d 949, 969-970, 976, 306 Ill.Dec. 202, 857 N.E.2d 295 (2006) (stating that "State courts that have rejected PPG testing have done so due to problems with the test's reliability," but allowing expert's opinion testimony as to likelihood of recidivism, based in part on consideration of PPG test results, as Illinois courts do not follow Daubert and their judicial review of scientific evidence "does not include reliability"); State v. Gallegos, 220 P.3d 136, 145 (Utah 2009) (merely finding that, at trial on charges of enticing a minor, defendant's pedophilia or lack thereof was relevant, without deciding scientific validity of PPG test).

A lack of general acceptance does not end our inquiry into reliability. The judge conducted a more generalized reliability inquiry to determine whether the test has been shown to be "reliable or valid through other means." Ready, petitioner, 63 Mass. App. Ct. 171, 174, 824 N.E.2d 474 (2005). We find ample support in the record for the judge's conclusion that the defendant did not establish the reliability of the PPG using alternate methods.

At the outset, the PPG's lack of a standard set of stimuli or agreed-upon standards for the testing creates, as the judge found, a "major problem." For a test such as this, the stimuli used are by definition intrinsic to the result produced. With no standardized guidelines for either the content or even the mechanism of stimulus (audio or visual), the reliability of the procedure appears inherently dubious. See Ready, 63 Mass. App. Ct. at 176-177, 824 N.E.2d 474 (variance in stimuli used in Abel Assessment for Sexual Interest test studies eroded validity of the studies). Indeed, the test has a significant error rate, according to Dr. Plaud, with false positives above thirty-three percent, and potential false negatives amongst "the vast majority of rapists." See id. at 178, 824 N.E.2d 474 (judge found test's error rate of twenty-one to thirty-two percent unacceptable).

Of similar concern is the test's vulnerability to manipulation by the subject, who may opt to direct his thoughts or attention elsewhere than intended by the examiner. Although Dr. Plaud testified that he takes measures to avoid certain types of test manipulation, the defendant did not present any evidence suggesting that these measures have been studied, that they have been determined to be effective, or that they are generally accepted as effective by others in the clinical community.

Finally, as the judge noted, the defendant did not offer any evidence suggesting the PPG's value in proving a negative proposition: that an absence of deviant response on the PPG is correlated with an absence of sexual recidivism. He similarly offered no evidence on the correlation between absence of deviant response and absence of a relevant diagnosis.

Based on our review of the record before the judge, we conclude that the judge did not abuse his discretion in excluding the PPG examination results; it has not been established that use of the PPG exam to show the likelihood of sexual reoffense is generally accepted in the clinical community or that a review of the Daubert- Lanigan factors favors admission of evidence based on such an exam.

Judgment affirmed.

      There was also evidence that the defendant was in the unsupervised presence of a thirteen year old child during this period of time.

      The defendant gave notice to the Commonwealth of the PPG test and its results approximately two weeks prior to trial, and provided Dr. Plaud's full report four days prior to trial.

      See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; Lanigan, 419 Mass. at 26, 641 N.E.2d 1342.

      Although Dr. Plaud ultimately testified at trial, the portion of the transcript containing his testimony was omitted from the record submitted to this court on appeal.

      Among the few studies Dr. Plaud referenced by name during the hearing was the "Hanson Bussière meta-analysis," which he characterized as a significant study finding that the single greatest predictor of sexual recidivism was deviant sexual arousal, purportedly defined by the study as a sexual response to children measured by PPG testing. The study was not introduced by either party during the hearing, nor was this aspect of Dr. Plaud's testimony challenged by the Commonwealth. In future cases, parties should provide judges conducting Daubert-Lanigan hearings with the studies principally relied upon by their experts. To the extent that Dr. Plaud's testimony was intended to reference Hanson & Bussière, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, J. Consult. & Clin. Psychol. 66(2): 348-362 (1998), it is evident that the judge would have benefitted from comparing Dr. Plaud's characterization of the meta-analysis with the text of the study and would also have benefitted from viewing the 2004 update of the meta-analysis. See Hanson & Morton-Bourgon, Predictors of Sexual Recidivism: An Updated Meta-Analysis (Public Works & Government Services Canada 2004).