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Commonwealth v. McCready11/29/2000
m.
b. Other points.
Unlike ? 79G, ? 79 has no provision for advance notice -- ten days in ? 79G -- of an intent to offer the record in evidence. Still the defendant complains of unfairness in that he had no opportunity to inquire whether "AHunter" was in fact a nurse who would have a direct impression of the defendant when he was admitted. Counsel did not make this point when the record was offered. Anyway, the trial went over to a second day and one would have expected the defendant, if troubled, to ask for a short continuance to make (with the Commonwealth's cooperation) an initial inquiry at the hospital that might promptly identify "AHunter." However, the presumption that the signatory having access to the hospital record was not an outsider remains strong.
Defendant's counsel said at the time that this was a "certified" record, and it is no more than a quibble to say now that authentication was faulty.
Again, ? 79 states the record is to pass to the clerk of court; here it went direct to counsel. This departure from text was trivial.
2. We are informed by counsel, and the transcript confirms, that the trial judge, sentencing the defendant as a second offender, just accepted counsel's statement that there had been a previous OUI conviction. The docket entries also erroneously indicate that the defendant was found guilty by a jury of having committed a second offense of driving under the influence of intoxicating liquor. The proper procedures incident to the defendant's entitlement to a separate trial on the issue in OUI cases can be found in G. L. c. 278, ? 11A. See Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995); Commonwealth v. Zuzick, 45 Mass. App. Ct. 71, 72, 74-75 (1998); Commonwealth v. Chaplin, ante 365, 366-367 (2000). The judgment on the second offense portion of the charge therefore must be vacated.
The judgment on the charge of operating a vehicle recklessly so as to endanger is affirmed. The judgment on the charge of having committed a second offense of driving while under the influence of liquor is vacated, and the docket entries are to be corrected to reflect that the jury verdict found the defendant guilty of the offense of operating a motor vehicle while under the influence of alcohol, not of a second offense. The verdict as corrected shall stand. The matter is remanded to the District Court for further proceedings on that portion of the complaint charging the defendant with a second offense of operating a motor vehicle while under the influence of intoxicating liquor.
So ordered.
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