The Massachusetts appeals court on January 22, 2010 in COMMONWEALTH vs. IRVING MADERA, JR. 76 Mass.App.Ct. 154, that the admission of several drug certificate reports submitted in the wake of Melendez Diaz was harmless error on the part of the commonwealth and upheld the conviction of MADERA.
The court stated “2. Drug certificates of analysis. As part of its case-in-chief, the Commonwealth introduced three drug certificates to prove that the substances found in the bedroom were, in fact, marijuana. [FN4] The admission of these certificates, without testimony from the analyst, was constitutional error and violated the defendant’s right to confront witnesses under the Sixth Amendment to the United States Constitution. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (holding that admission of drug certificates of analysis, without opportunity for cross-examination, violates confrontation right under Sixth Amendment to United States *157 Constitution). The defendant objected to the admission of the certificates; thus, we review whether this error was harmless beyond a reasonable doubt. In making this determination, we ask “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Commonwealth v. Perez, 411 Mass. 249, 260 (1991), quoting from Chapman v.California, 386 U.S. 18, 24 (1967). See Commonwealth v. Sinnott, 399 Mass. 863, 872 n.8 (1987). [FN5] The Supreme Judicial Court has enumerated the following factors that may be considered when making such a determination: “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions.” Commonwealth v. Isabelle, 444 Mass. 416, 419 (2005), quoting from Commonwealth v.Mahdi, 388 Mass. 679, 696-697 (1983). See Commonwealth v. Diaz, 453 Mass. 266, 275 (2009). “These factors are not exclusive or exhaustive. . . . Nevertheless, this scoreboard method to distinguish harmless from harmful error is useful.” Commonwealth v. Mahdi, supra at 697.
Viewing these factors as a whole, we are persuaded that the Commonwealth met its burden of showing that the erroneous admission was harmless beyond a reasonable doubt. While the second of the five factors weighs against the Commonwealth (because the Commonwealth introduced the drug certificates), the remaining three relevant factors [FN6] weigh strongly against the *158 defendant. Based on our review of all the evidence, we conclude that the admission of the certificates was harmless beyond a reasonable doubt.”
Since Melendez Diaz was decided it has proven a boon for defense attorneys. From November ’09 through December ’09 at least 8 cases were overturned on the appeals level as a result of the Melendez Diaz case. Those cases that have not been thrown out have largely stood on the sufficiency of other evidence to show the substance was in fact illegal Narcotics sufficient for conviction purposes. Most of those cases have been won on the strength of the arresting officers perceptions and their ability to testify as experts that the substance is in fact what they say it is. Prosecutors and Police need to immediately start thinking outside the box to overcome the opinion in Melendez Diaz.
Attorney Ronald. A. Sellon