Commonwealth v. Shangkuan
78 Mass. App. Ct. 827 (2011)
February 28, 2011
Appeals Court of Massachusetts
Restraining Order, Return of Service, Hearsay, Public Records Exception, Confrontation Clause, Testimonial, Melendez-Diaz
The Appeals Court addressed whether the Commonwealth could prove that the defendant was served with a G.L. c. 209A restraining order by the return of service filled out by an out of state law enforcement officer without direct testimonial evidence that the defendant was in fact the person served. The court held that a c. 209A completed return of service is admissible under the public records exception to the hearsay rule and that it is nontestimonial, thereby avoiding the requirements of the Confrontation Clause.
Facts
The defendant was issued a G.L. c. 209A restraining order on December 8, 2006 with his address in Princeton, New Jersey. A New Jersey police officer certified that he served a copy of the order on the defendant by delivering it to him in hand. The completed return of service was transmitted to the clerk of the court as required by the order and by G.L. c. 209A §7.
The defendant is alleged to have violated the restraining order and the Commonwealth sought to use the return of service as evidence to show that the defendant knew of the order. The defendant argued that the return of service is inadmissible hearsay and since the New Jersey police officer was not available to be cross-examined, it also is inadmissible due to the Confrontation Clause.
Issue 1: Is the return of service hearsay, and if so, does it fall under an exception?
The court first held that while there may be instances where a return of service is not being offered for its truth, the return of service in this instance was offered for its truth because the Commonwealth aimed to show that the defendant did in fact have the order in his hand. Therefore, the return of service constitutes hearsay and must fall under an exception.
The court then decided that the only feasible exception that this may fall into is the official or public record exception to the hearsay rule. To determine whether this exception should apply, there must be a determination whether the statement contained in the return of service (i.e. – that the officer served the defendant in hand) falls within the official or public records exception to the hearsay rule because it is a “record of a primary fact, made by a public officer in the performance of official duty.” The court first made it clear that just because a document is authentic as an official record does not mean it falls under the official or public records exception. The court found that the return of service does fall into this exception because it was clearly prepared by an official in the performance of an official duty and it was done so in accordance with the official procedure proscribed by law.
Issue 2: Is the return of service testimonial for purposes of the Confrontation Clause?
Massachusetts has adopted a two-step test for determining whether an out-of-court statement is testimonial for purposes of the Confrontation Clause. This framework requires the determination of whether a statement is per se testimonial or testimonial in fact. A statement is per se testimonial if it was made in a formal or solemnized form or in response to law enforcement interrogation. A statement is testimonial in fact if a reasonable person in the defendant’s place would anticipate the statement’s being used against the accused in investigating and prosecuting the crime.
The court held that even though the return of service is an official statement, it is not testimonial per se because the primary purpose for which the return of service was created is to serve the routine administrative functions of the court system and ensuring the defendant received fair notice required by Due Process. Additionally, the return of service is not testimonial in fact because in balancing different considerations, the court recognized that “the contemporaneous purpose for which the statement was made to be the truest touchstone of whether a particular statement is testimonial in fact.” Therefore, the return of service is not testimonial and there is no Confrontation Clause issue.
Case remanded to the District Court for further proceedings.
Prepared by AAO
