Appeals Court:Drug Certificate Admission Harmless Error

On 7/2/2010 the Appeals court ruled that admission of drug certificates were “harmless error” in COMMONWEALTH vs. JOSHUA L. KING. (AC 09-P-228) 77 Mass. App. Ct. 189 (2010)

The court stated in deciding “After a jury-waived trial, the defendant, Joshua L. King, was found guilty of distribution of a class B substance (cocaine), G. L. c. 94C, §32A(c), as a subsequent offense, G. L. c. 94C, § 32A(d). He appeals, arguing that the trial judge erred in admitting a drug certificate in evidence without live testimony in violation of his constitutional right to confrontation under the Sixth Amendment to the United States Constitution and that the error was not harmless beyond a reasonable doubt.

During the trial, the Commonwealth introduced a drug certificate to prove that the substance exchanged in the controlled buy was, in fact, cocaine. In light of the decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the admission of the drug certificate without testimony from the analyst who performed the test violated the defendant’s right to confront witnesses under the Sixth Amendment to the United States Constitution.

We must determine whether this error requires reversal of the *191 defendant’s conviction. Here, though the defendant failed to object despite the fact that the United States Supreme Court had previously decided Crawford v. Washington, 541 U.S. 36 (2004), we review the error to determine whether it was harmless beyond a reasonable doubt, as we are required to do by the Supreme Judicial Court’s recent decision inCommonwealth v. Vasquez, 456 Mass. 350 (2010). Thus, our inquiry is whether the admissible evidence allows us to conclude “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967). SeeCommonwealth v. Morales, 76 Mass. App. Ct. 663, 665-667 (2010) (comprehensive review of standard applicable to review of preserved constitutional error).

Here, Detective Morrissey, an officer with approximately twelve years of experience in narcotics investigations, testified that he field tested the substance following the transaction’s completion and obtained a positive test for cocaine. The detective was available for cross-examination. The Supreme Judicial Court has recognized a positive field test as providing evidence of the nature of a substance sufficient to render the erroneous admission of a drug certificate harmless beyond a reasonable doubt. See Commonwealth v. Connolly, 454 Mass. 808, 831 (2009) (admission of drug certificate harmless beyond a reasonable doubt where officer engaged in controlled purchase of cocaine and conducted a field test that was positive, confirming the nature of the substance). [FN2] See Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 874 (2010) (positive field tests critical to determination that admission of drug certificates harmless beyond a reasonable doubt). In Vasquez, supra at 364, in determining that the error in the admission of the certificate was not harmless beyond a reasonable doubt, the court noted the absence of any field testing, in contrast to Connolly. [FN3] Compare Commonwealth v. Fluellen, 456 Mass. 517, 527 (2010) (noting absence of field testing in determining *192 that admission of laboratory certificates not harmless beyond a reasonable doubt); Commonwealth v. Rodriguez, 456 Mass. 578, 592 (2010) (noting lack of field testing in determination that admission of certificate not harmless beyond a reasonable doubt). We are satisfied that Detective Morrissey’s positive field test “as to the chemical composition of [the] substance was so ‘overwhelming’ as to ‘nullify any effect’ ” of the certificate’s admission into evidence. Commonwealth v.Vasquez, supra at 363.

Also here, as in Connolly, the determinative element of the charge of distribution was the sale itself rather than the amount of drugs in the defendant’s possession. We note as well that the drugs were produced in response to a request for crack cocaine (“rocks”) and that Detective Morrissey, experienced in narcotics enforcement, testified that he observed what to him appeared to be crack cocaine. The defendant gave Detective Morrissey his telephone number upon completing the transaction, providing further evidence relevant both to the defendant’s identity and to his willingness to stand behind the implied representation that he was selling what had been requested.

Accordingly, and consistent with Connolly, we conclude that the erroneous admission of the drug certificate was harmless beyond a reasonable doubt.”


Compare this with the findings in the following unpublished cases however:

In each of the above cases, Melendez Diaz was used to have convictions overturned all during the same week of decisions that King was decided.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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