Since Melendez Diaz was ruled by the Supreme Court, the court dockets for the Appeals Court are packed with appeals on convictions being overturned. Its essentially Christmas morning for drug dealers and their Attorneys as appeal after appeal get the green light due to the Confrontation clause issue that was presented in the case. The cases can still be prosecuted, and I give two comparison examples of how to do so with Comm. v. Villarato, and Comm. v. Morales which were both decided in April.
In COMMONWEALTH vs. FAURRY VILLATORO 76 Mass.App.Ct. 645 (2010) The defendant, Faurry Villatoro, was convicted of several drug-related crimes. He appeals, alleging that the trial judge erred in admitting drug certificates absent testimony of a drug analyst.
In deciding the case the court stated “ Right to confrontation: Melendez-Diaz issue. This case was tried, appealed and briefed before the United States Supreme Court granted certiorari in the case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). In his reply brief, however, the defendant raised the confrontation issue for the first time, asserting that the drug certificates introduced by the Commonwealth violated his rights under the Sixth Amendment to the United States Constitution in the absence of the analyst who performed the tests evidenced by the certificates. There is no question that such a violation occurred.
In the absence of any objection below, we normally apply the substantial risk of a miscarriage of justice test to the objectionable evidence.Commonwealth v. Rodriguez, 67 Mass. App. Ct. *652 636, 641 (2006), S.C., 450 Mass. 302 (2007). The defendant maintains that he is entitled to the more stringent standard of review despite his lack of objection because, notwithstanding the United States Supreme Court’s decision in Crawfordv. Washington, 541 U.S. 36 (2004), Commonwealth v. Verde, 444 Mass. 279 (2005), was still the law of the Commonwealth at the time of trial. Because we conclude that the error was harmless under either standard, we affirm the convictions on this basis as well.
The defendant not only admitted that the substance in question was marijuana, he testified at length on the subject, asserting the distinction between different grades of “weed,” explaining why he also had smoking implements and baggies on his person, and detailing his experience and long history of marijuana use.”Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence.” Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) (citations omitted). The judge was entitled to infer that the defendant was fully able to identify genuine marijuana when he purchased the drugs in question on the same day he was arrested, and fully competent to testify on the subject. See Commonwealth v. Cantres, 405 Mass. 238, 245-246 (1989) (“[T]he judge’s allowance of the testimony implies a prior determination by him that the witness’s experience qualified him to characterize the subject of those transactions as [drugs]”). Additionally, the arresting officer recounted that he had received Drug Enforcement Administration task force training and ATF drug recognition training; he testified further that he also recognized the odor of marijuana when he approached the defendant based on his own experience, including hundreds of marijuana arrests. Again, the judge could implicitly accept his testimony as based on expertise gained through training and experience.
On this record, and with reference to the factors enumerated in Commonwealth v. Diaz, 453 Mass. 266, 274 (2009), we conclude that the introduction of the certificates was harmless beyond a reasonable doubt. The premise of the defense was that the defendant was a consumer, not a distributor. The weight of unobjectionable evidence supporting the Commonwealth’s case was overwhelming. The certificates were not mentioned other than when they were introduced and once in the prosecutor’s closing. Id. at 274. Here, under the test clearly enunciated in Chapman v. California, 386 U.S. 18, 24 (1967), there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.”
Compare this ruling with COMMONWEALTH vs. MOISES MORALES 76 Mass.App.Ct. 663 (2010) and we get a picture of how to best prosecute the cases with the Melendez Diaz decision hanging overhead. In MORALES “ This case returns to our court pursuant to a remand order from the United States Supreme Court following its decision in Melendez-Diaz v.Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz). See Morales v. Massachusetts, 129 S. Ct. 2858 (2009). In our previous decision, Commonwealth v.Morales, 71 Mass. App. Ct. 587, 588-589 (2008), we affirmed the defendant’s convictions of possession of a firearm with a defaced serial number, G. L. c. 269, § 11C; unlawful possession of ammunition, G. L. c. 269, § 10(h); unlawful possession of a firearm, G. L. c. 269, § 10(a); and possession of a class A substance (heroin) with intent to distribute, G. L. c. 94C, § 32(a), holding, inter alia, that there was no error in the admission in evidence of a ballistics certificate.
Drug certificate. “In a case charging a narcotics offense, the Commonwealth must prove beyond a reasonable doubt ‘that a substance is a particular drug’ because such proof is an element of the crime charged.” Vasquez, supra at 361, quoting from Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 511 (2009). In determining whether the admission of the drug certificate was harmless in that regard, “we ask whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury’s verdicts.” Commonwealth v.Tyree, 455 Mass. 676, 701 (2010). See Commonwealth v. Fluellen, 456 Mass. 517, 526-527 (2010).
Therefore, we consider the Commonwealth’s evidence as to the identity of the white powder recovered from the defendant absent the certificate. Not only is the evidence before us not overwhelming, but the record discloses a dearth of independent evidence as to the nature of the substance. Consequently, we cannot conclude beyond a reasonable doubt that the introduction of the drug certificate did not contribute to the defendant’s conviction of possession of a controlled substance with intent to distribute.
The circumstantial evidence that the white powder was packaged in a manner consistent with the sale and distribution of heroin did not render the admission of the drug certificate harmless. Evidence of packaging in a particular manner can be probative of the crime of possession of a controlled substance with intent to distribute, but it can also be probative of the crime of possessing a counterfeit substance with the same intent to distribute.Commonwealth v. Pimentel, ante 236, 239 n.3 (2010). See G. L. c. 94C, § 32G. “It is unlikely that the form of packaging is necessarily proof that a substance is a particular drug.” Commonwealth v. Perez, ante 439, 444 n.4 (2010). Similarly, although the defendant was carrying a loaded weapon, a cellular telephone, and cash, these facts speak to the issue of distribution, not to the identity of the substance as heroin. See Commonwealth v. Vasquez, 456 Mass. at 366-367 (“Evidence seized . . . included a scale, rubber bands, a substantial amount of cash, sandwich bags, and a walkie-talkie — all relevant on the issue of distribution. But none of this properly admitted evidence established that the substances purchased and seized were ‘cocaine,’ as the indictments charged”).
Moreover, there was no direct evidence establishing the identity of the powder. See Commonwealth v. Fluellen, supra at 527. No field testing was performed. Contrast Commonwealth v. Connolly, 454 Mass. 808, 831 (2009). Nor did a police officer or other witness experienced with drug use opine that the substance was an illegal drug. See Vasquez, supra at 365; Pimentel, supra at 239. The only direct evidence of the composition of the seized substance was the drug certificate. In these circumstances, the admission in evidence of the drug certificate was not harmless beyond a reasonable doubt, and the defendant’s conviction on the drug charge must be reversed. See Vasquez, supra at 366.
Conclusion. We cannot conclude that the ballistics and drug certificates did not contribute to three of the verdicts returned against the defendant. With respect to these, the admission of the certificates was not harmless beyond a reasonable doubt and the defendant’s convictions of possession of a class A substance with intent to distribute, G. L. c. 94C, § 32(a); unlawful possession of a firearm, G. L. c. 269, § 10(a); and possession of a firearm with a defaced serial number, G. L. c. 269, § 11C, must be reversed and the verdicts set aside. The conviction of unlawful possession of ammunition, G. L. c. 269, § 10(h), however, is affirmed. The case is remanded for further proceedings consistent with this opinion.”
The two cases lend themselves to good stark examples of how to prosecute and prepare a case in the wake of Melendez Diaz. Propping up the shortcoming produced in the evidence with additional testimony by experienced personnel familiar with the case can get us to that point. As a side note, I find it very interesting that in reading the Melendez Diaz case itself, that the Justices asked about why states such as California are able to operate under the rule of confronting the chemist whereas Massachusetts did not. A.G. Coakley time and again when confronted with this question never answered it, instead reverting to restating her argument. The simple answer, should have been “Economics”. California is running a larger deficit than any state in percentage of total budget. Part of that is clearly the cost associated with sending a chemist to trial and the massive additional hirings to that office it incurs. Why that was never mentioned, whether she was starstruck by being in front of the Supreme Court or whatever the reason, I don’t know. But she could have at least attempted to answer the question, instead of sidestepping the question. That seems like a surefire way to lose.
Attorney Ronald A. Sellon