After being involved in an accident, on March 17, 2007 Harry Norton was arrested for OUI, driving to endanger, driving an uninsured motor vehicle, and driving an unregistered vehicle. The first officer who responded to Norton’s rear-end accident testified that he smelled a “moderate” amount of alcohol on Mr. Norton’s breath and observed that Norton was “stumbling and unsteady on his feet.”  He also noted that Mr. Norton was speaking slowly, slurring his words and had glassy eyes.  The officer testified that Mr. Norton could not produce a license or proof of registration.  The officer also administered field sobriety tests at the scene, and testified that Mr. Norton performed poorly. A second officer noted that Norton’s eyes were watery and glassy, he had a moderate amount of alcohol on his breath, had trouble standing in one place and was speaking slowly and slurring his words.

The second officer testified that based on his observations, Mr. Norton was “operating under the influence of intoxicating liquor.”  Norton’s drunk driving attorney did not object to this statement. The Superior Court concluded that the DUI lawyer’s failure to lodge an objection fell measurably below the expected standard. It is well-established that the admission of statements by percipient witnesses that touch upon the ultimate guilt of a defendant intrude on the jury’s fact-finding function as to proof of elements of a crime. The DUI attorney should have objected to the officer’s testimony that Norton was operating under the influence. That’s the ultimate issue to be decided by the jury in the DUI trial and the officer impermissibly invaded the sole province of the jury when he made that statement. Although this was an error, it was no sufficient to win a reversal of Norton’s DUI conviction.

The DUI lawyer also failed to object to the introduction of the certified Massachusetts Registry of Motor Vehicles document which indicated that Norton’s car was unregistered and uninsured at the time of the accident and DUI arrest. On appeal, Norton’s new DUI lawyer attempted to argue that the Registry record was testimonial, and that Norton’s right to confront witnesses against him, as guaranteed by the Sixth Amendment, was violated. On appeal, Norton claimed that the DUI attorney who handled his trial failed to object to the evidence and said failure was unreasonable, given that the United States Supreme Court had, at the time of trial, granted certiorari in Melendez-Diaz, a case in which the testimonial nature of drug analysis documents was in question.  Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). 

In Melendez-Diaz, the Supreme Court found that a defendant’s Sixth Amendment right to confront witnesses against him was violated when documents prepared by laboratory analysts for the Commonwealth were admitted at trial and the analysts were not called to the stand.  The Commonwealth had characterized the documents–which contained the results of tests conducted to determine whether a substance found on the defendant was an illegal narcotic–as “certificates.”  The Supreme Court rejected this characterization, instead finding the documents to be affidavits, which are considered to be testimonial.

Here, the admission of the Mass. RMV certificate did not violate Mr. Norton’s Sixth Amendment right to confront witnesses against him.  Unlike the affidavits in Melendez-Diaz, the Registry certificate was created and maintained independent of any prosecutorial purpose, and is admissible as an ordinary business record pursuant to G.L. c. 233 § 78, as well as an authenticated record of a governmental department pursuant to G.L. c. 233 § 76.  The Registry of Motor Vehicles is an independent agency of the State charged not only with keeping complete records of the status of drivers’ licenses, but also with keeping complete records of any convictions of persons charged with motor vehicle violations, rendering the maintenance of those records independent from a prosecutorial purpose and admissible as evidence.  Because admission into evidence of the certificate did not violate Mr. Norton’s Sixth Amendment right to confront the witnesses against him, it was not ineffective assistance of counsel for trial counsel to fail to object to its admission.
Based on the above-cited facts and law, the Superior Court refused to vacate Norton’s drunk driving conviction and grant him a new DUI trial.