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Commonwealth v. Flaherty9/7/2004
registry, not the court, which requires the completion of an alcohol program.
It appears that under New Hampshire law, the defendant was convicted. Although the preference is to treat the conviction as a violation for sentencing purposes, such treatment does not detract from the fact that the defendant was previously convicted. As indicated, the law reads " ny person who is convicted of any offense under . . . RSA 265:82 shall be: (1) Guilty of a violation . . . ." N.H. Rev. Stat. Ann. § 265:82-b, I(a).
Our view is buttressed by the language in State of New Hampshire v. Parmenter, 149 N.H. 40, 46 (2002), where their Supreme Court indicated that " he plain language of these statutes makes clear that if a person is convicted of DWI, first offense, a court will impose a fine and license suspension within the statutory limits" (emphasis added). Lastly, we note that the plea tender sheet indicates that "a conviction will be entered against me."
We conclude, therefore, that the New Hampshire offense was a conviction for G. L. c. 90, § 24, purposes.,
2. The Police Report
On direct examination, Martin testified, in part, that the defendant was antagonistic and disruptive, and did not indicate that he had any medical problems. In an apparent attempt to impeach the witness, defense counsel repeatedly made reference to the Alcohol Influence Report of a second, non-testifying officer, Officer Chelmo, which indicated that the defendant was "cooperative and polite" during the booking process and had previously suffered a broken foot. Further, defense counsel sought to have Martin admit that in the section of the report describing the defendant's actions, a box marked "staggering" had not been checked.
On redirect examination, presumably in an attempt to rehabilitate his witness, the prosecutor questioned Martin concerning Chelmo's written observations regarding the defendant's symptoms of intoxication, clothing, and speech.
The use of the report by both parties was error. On cross-examination, it did not serve as fodder for impeachment purposes. That the defendant was polite with booking officer Chelmo does not impeach Martin's testimony that the defendant was not polite with him earlier that night. Perhaps feeling he had to fight fire with fire, the prosecutor then engaged in further inappropriate use of the report, pointing out sections which supported Martin's testimony.
On appeal, the Commonwealth contends that its use of the report was permissible under the doctrine of verbal completeness. "The purpose of the doctrine is to prevent one party from presenting a fragmented and misleading version of events by requiring the admission of other relevant portions of the same statement or writing which serve to clarify the context of the admitted portion." Commonwealth v. Eugene, 438 Mass. 343, 351 (2003) (citations and internal quotations omitted). "The portion of the statement sought to be introduced must 'qualify or explain the segment' previously introduced." Commonwealth v. Richardson, 59 Mass. App. Ct. 94, 99 (2003), quoting from Commonwealth v. Leftwich, 430 Mass. 865, 872 (2000).
Here, clearly the statements the prosecutor sought to introduce did not clarify, qualify, or explain what defense counsel had earlier elicited. Indeed, if we were to accept the Commonwealth's liberal interpretation of the rule, once a party used one aspect of a police report or grand jury minutes, then theoretically the entire report would be subject to admission in evidence. This is not the state of the law.
As there was no objection, we assess whether its use constituted a substantial risk of a miscarriage of justi
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