84 Mass. App. Ct. 136 | Mass. App. Ct. | 2013
This case involves a series of four controlled cocaine “buys” by a State trooper, acting undercover, from a man known as “Carlos” — but later identified as the defendant, Adolfo Marte. Based on these controlled buys, a jury convicted the defendant of four counts of trafficking in cocaine in excess of twenty-eight grams. The defendant was also convicted of a single count of trafficking in cocaine in excess of 200 grams
At trial, over the defendant’s objection, the Commonwealth introduced certificates of drug analysis, without trial testimony from the chemical analyst, to support each of the five trafficking charges. This was constitutional error violating confrontation rights. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009). The principal issue in this appeal
For the reasons that follow, we affirm the four convictions
1. Background. The following is a brief summary of the trial evidence. The circumstances underlying each of the controlled buys were, reduced to essential acts, nearly identical. Prior to each controlled buy, Trooper Daniel Tucker would contact the defendant (who used the name “Carlos”) requesting to purchase two ounces of cocaine. The defendant set a price of $2,200 for each two-ounce sale. The defendant would instruct Trooper Tucker to proceed to the parking lot of a nearby Friendly’s restaurant. During the first and second controlled buys, an associate of the defendant known as “Nieves” arrived by car at the Friendly’s parking lot and delivered to Trooper Tucker a plastic bag containing approximately two ounces of a white powdery substance. After the second buy, the defendant, in a telephone conversation, inquired whether the trooper was satisfied with the quality of the substance delivered and boasted, “You never have to worry about my packages, I’ve been around a long time.” The defendant himself made the third delivery. After the trooper’s call to the defendant, another man known as “Andino” made the fourth delivery at the Friendly’s, but shortly thereafter was joined by the defendant.
After each controlled buy, Trooper Tucker immediately performed a field test on the purchased substance. Each of the four field tests indicated the presumptive presence of cocaine. As previously noted, the defendant was arrested after Trooper Tucker made the fourth and final controlled buy. That same day, police executed a search warrant at the defendant’s apartment and seized a large quantity of a white powdery substance from a secret compartment, what the police expert characterized as a
2. Standard of review. “The ‘essential question’ in analyzing harmlessness beyond a reasonable doubt is ‘whether the error had, or might have had, an effect on the [fact finder] and whether the error contributed to or might have contributed to the [findings of guilty].’ ” Vasquez, 456 Mass. at 360, quoting from Commonwealth v. Perrot, 407 Mass. 539, 549 (1990). “[I]t is not enough for the Commonwealth to demonstrate that its other, properly admitted evidence was ‘sufficient’ to convict the defendant or that the inadmissible evidence was ‘consistent’ with the admissible evidence.” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010), quoting from Commonwealth v. Dagraca, 447 Mass. 546, 554-555 (2006). “Rather, to establish harmlessness beyond a reasonable doubt, the Commonwealth must show that other properly admitted evidence of guilt is ‘overwhelming,’ in the sense that it is ‘so powerful as to nullify any effect’ that the improperly admitted evidence ‘might have had’ on the fact finder or the findings.” Vasquez, supra at 362, quoting from Tyree, supra at 704 n.44.
Against this backdrop, we conclude that the totality of the Commonwealth’s evidence, including but not limited to the positive field test for cocaine, was sufficient to render the admission of the certificates of drug analysis harmless error with respect to the four controlled buys of cocaine delivered to Trooper Tucker, which were the predicates for the four convictions for trafficking in cocaine in excess of twenty-eight grams. However, our review of the trial record, as described in part 4, infra, reflects little evidence which would have established that the composition of the substance seized from the apartment was cocaine, except for the erroneously admitted certificate of analysis. Hence, we conclude the Commonwealth’s evidence did not overcome the Melendez-Diaz error with respect to the cocaine seized in the apartment — which was the predicate for the conviction for trafficking in excess of 200 grams.
3. The controlled buys and the four trafficking convictions
Since 2009, when the Connolly case was decided, there have been significant case developments involving field testing that further calibrate and refine the weight to be given field testing in reviewing whether the constitutionally erroneous admission of drug certificates of analysis is harmless beyond a reasonable doubt. Among the leading post-Connolly cases are Commonwealth v. Fernandez, 458 Mass. 137, 151-153 (2010); Commonwealth v. King, 461 Mass. 354, 357-361 (2012); and Commonwealth v. Billings, 461 Mass. 362, 364-365 (2012). The framework of these cases, decided in the wake of Connolly, is double edged, imposing more exacting scrutiny of the founda
The post-Connolly field test framework may be further detailed as follows. On one side, the evidentiary standards for properly admitted field tests are heightened. In this respect, the post-Connolly cases make clear that, where the trial evidence concerning a field test is not demonstrated to have the requisite foundation — which includes the experience of the officer(s) conducting the test, the methodology of the testing, and definitive identification of the substance, i.e., as cocaine, heroin, or another controlled substance — the field test yields no real offset to the constitutional error in the admission of the drug certificate of analysis. See, e.g., Commonwealth v. Nelson, 460 Mass. 564, 577 (2011) (admission of certificate of drug analysis identifying marijuana not harmless beyond reasonable doubt where neither investigating officer nor drug distribution expert identified substance based on training and experience); Billings, supra (error in drug certificate admission not harmless where officer conducting field test did not have requisite experience, and where result of field test regarding composition of substance was left unidentified in officer’s trial testimony). See generally Commonwealth v. Fernandez, 458 Mass. 137 (2010) (admission of certificates of analysis not harmless beyond reasonable doubt).
However, on the other side, these field testing cases reaffirm the general proposition (as recognized in Connolly),
Buttressing evidence to support the composition identification in a presumptively positive field test case may include, but is not limited to, testimony and other evidence regarding: the type of field test used; the method of testing; whether the testing officer had received training in drug investigations, particularly in field testing drugs; any incriminatory admission by a defendant as to what the substance is (cocaine, heroin, etc.); and any other direct or circumstantial evidence relevant and tending to demonstrate the chemical composition of the substances at issue. See note 4, supra. This evidentiary construct in which a positive field test is buttressed by other corroborative, circumstantial evidence is in accord with the law that “[p]roof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence.” Commonwealth v.
We turn to the circumstantial evidence in this case, which, in our view, was strongly corroborative and fully buttressed Trooper Tucker’s clear and direct testimony,
Related to proving the substance purchased as cocaine, it was also the Commonwealth’s burden to establish that the seized substance amounted to more than twenty-eight grams for each
4. Substance seized from the apartment hide. As noted, the police seized two plastic bags containing white rock powder from the hide beneath the kitchen sink in the defendant’s apartment. The drug certificate indicated that the white rock was cocaine, weighed 465.18 grams, and was seventy-two percent pure cocaine. This was the basis for the defendant’s conviction for trafficking in excess of 200 grams of cocaine. However, aside from this erroneously admitted drug certificate, there was not very much evidence bearing on the composition of the substance.
As previously noted, no field tests were performed on the substances seized from the apartment, including this large white block. See Vasquez, 456 Mass, at 364-366 (noting lack of field testing; admission of drug certificates not harmless beyond reasonable doubt); Commonwealth v. Fluellen, 456 Mass. 517, 527 (2010) (same). In addition, unlike the four controlled buys, there was no valuation evidence concerning potential value or sale price on the market price of cocaine. Nor was there anything like the defendant’s incriminatory admission about the “package” and its quality.
Indeed, apart from the erroneously admitted drug certificate, the Commonwealth’s trial evidence devolved to Sergeant Brook’s expert opinions about the manner and means of drug dealing generally. Reduced to essentials, this drag expert opinion evidence was to the effect that the defendant’s sparsely furnished apartment appeared to be a “stash pad” (as, to which the sergeant opined, is commonly used by drag dealers), that the sink compartment appeared to be a “hide” (again, in the sergeant’s opinion, such as might be of the type commonly used by drag dealers to conceal drags or proceeds), and that there were two scales and plastic bags (which, again, would be such as those used by drag dealers). These pieces of expert opinion, while clearly relevant
5. Conclusion. Based on the foregoing, the judgments on the four charges of trafficking in excess of twenty-eight grams of cocaine are affirmed. The judgment on the charge of trafficking in excess of 200 grams of cocaine is reversed, and the verdict is set aside.
So ordered.
We stayed this appeal pending the Supreme Judicial Court’s decisions in Commonwealth v. King, 461 Mass. 354 (2012), and Commonwealth v. Billings, 461 Mass. 362 (2012), both of which were being considered on further appellate review from Commonwealth v. King, 77 Mass. App. Ct. 189 (2010), and Commonwealth v. Billings, 77 Mass. App. Ct. 1120 (2010), respectively. The King and Billings cases address the effects and limitations of positive field test results in analyzing harmless error in respect to erroneously admitted drug certificates. We discuss these cases in more detail in part 3, infra.
This case has a lengthy and tortuous procedural history. The defendant’s direct appeal was initially stayed pending the filing of a motion for a new trial. The defendant was ordered to file status reports concerning the new trial motion. Those status reports were not filed, and the stay in the direct appeal was vacated. Then, the defendant failed timely to file his appellant’s brief, and the direct appeal was dismissed under this court’s standing order for lack of prosecution of the appeal. Later, the direct appeal was reinstated, with a notation that any appeal from the new trial motion proceeding would be consolidated with the direct appeal.
The motion for a new trial was ultimately denied. The defendant did not file a timely notice of appeal from that denial. This court granted the defendant leave to file a late notice of appeal from the new trial motion denial. But, then, a Superior Court judge declined to accept for filing the defendant’s late notice of appeal.
The Commonwealth contends that the appeal from the denial of the motion for new trial is not properly before us. We need not dwell on this aspect of the procedural morass because the defendant’s direct appeal is clearly before us. And, in that direct appeal, the defendant is entitled to review under the harmless error standard regarding the admission of the drug certificates according
The defendant does not challenge the validity of the search warrant.
To illustrate this point, in Commonwealth v. King, supra, the Supreme Judicial Court held that the field test evidence was flawed and could not be considered in the harmless error analysis. But, importantly, the court went on to reaffirm the Connolly factors when the court noted, “we recited the following facts [in the Connolly case] in our determination that the admission of certificates of drug analysis was harmless beyond a reasonable doubt: the defendant had been the subject of an investigation for more than one year; there were controlled drug purchases by ‘multiple confidential informants’ as well as by an undercover police officer to whom the defendant identified the substance he sold as ‘crack’ cocaine; an officer with twenty-five years’ experience in narcotics investigations field tested the substances after each purchase
The cases indicate that a positive field test that affirms the presumptive presence of a controlled substance, does not, standing alone (without other corroborative evidence), move the bar so that a constitutional Melendez-Diaz error in the admission of a drug certificate of analysis is trumped.
While Commonwealth v. Fernandez, 458 Mass. at 149-150, speaks of instances in which the defense may seek to invoke the protocol of Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), and request a hearing to challenge the manner in which certain field tests were conducted, or the particular test kit used, that issue is not present in this appeal, there having been no Lanigan challenge raised below. Cf. Fernandez, supra (rejecting appellate claim concerning potential Lanigan hearing directed to field testing, where no objection to field test raised until day of trial commencement).
On the conviction of trafficking in excess of 200 grams of cocaine, the defendant was sentenced to a term of from fifteen to seventeen years in State prison. On the convictions of trafficking in excess of twenty-eight grams of cocaine, the defendant received four concurrent sentences of from five years to five years and one day, each of those sentences to be served concurrently with the sentence for trafficking in excess of 200 grams.
In denying the new trial motion, the Superior Court judge, who was the trial judge, found no basis for granting a new trial for any of the five convictions because of error in admission of the drug certificates. However, in affirming the conviction for trafficking in excess of 200 grams, the judge noted that it was a “closer question” than that presented by the four controlled buys and the underlying convictions for trafficking in cocaine in excess of twenty-eight grams. Since the consideration of this case, it has been determined that Melendez-Diaz does not apply retroactively to new trial proceedings. See Commonwealth v. Melendez-Diaz, 460 Mass. 238, 239-240 (2011). But, this new trial motion was pending and heard while the direct appeal was still open and not final — another procedural nuance, which we need not reach because we review this case and reach our disposition on the direct appeal. See note 2, supra. As further referenced in note 2, it is questionable whether the defendant’s appeal from the denial of his new trial motion was properly preserved for appeal, given the late notice of appeal. In any event, because the Melendez-Diaz issues overlap, were the defendant’s appeal before us, we would affirm the denial of the new trial motion on the trafficking counts that arise from the four controlled buys. In contrast, our reversal of the conviction of trafficking in excess of 200 grams of cocaine, the conviction arising out of the apartment seizure, in effect, renders the denial of the new trial motion on that trafficking count moot.