Recently the Appeals court ruled on COMMONWEALTH vs. AARON RAMSEY 79 Mass. App. Ct. 724 (2011) in which they affirmed a firearms charge and dismissed a cocaine charge against the defendant. The case is a good illustration for prosecutors in these cases but the Dissent by Justice Grasso is especially interesting which can be found here. Justice Grasso’s dissent shows why his writings are must reads and gives a great gameplan for prosecutors in the future in overcoming this issue. Essentially, he argues that the defendant admitted on the stand to the possession as a trial ploy to gain juror sympathy. Using this tactic was an option and he had the right to remain silent and not testify at all, however he declined that. Given all this the majority still found that the drug certs were not enough by themselves to prove possession and ignored the statement. Personally I think it is a perfect case for the SJC to take up and clarify and the law regarding personnel admissions while testifying is rather clear.
The court in deciding stated “At the trial of indictments charging, inter alia, unlawful possession of a firearm, the erroneous admission in evidence of a ballistics certificate, without affording the defendant an opportunity to cross-examine the ballistician who created it, was rendered harmless beyond a reasonable doubt by the other, lawfully-admitted evidence of operability of the firearm (i.e., in addition to the gun itself, security footage of the shooting depicting the discharge of multiple firearms; testimony from police officers that cartridge casings, including two matching the gun in evidence, were retrieved from the crime scene; and opinion testimony from a police officer who was a ballistics expert that two spent casings found at the scene resulted from shots fired by the firearm in question).
At the trial of indictments charging, inter alia, unlawful possession of cocaine, the erroneous admission in evidence of certificates of drug analysis to prove the chemical composition of the alleged cocaine, without affording the defendant an opportunity to cross-examine the analyst who created them, could not be said to have been harmless beyond a reasonable doubt, where the record contained virtually no evidence, aside from the certificates and the defendant’s testimonial admissions, from which the jury independently could have inferred that the substances were cocaine. GRASSO, J., dissenting.
Discussion. Although there was no objection, the applicable standard of review is whether the erroneous admission of the certificates of drug and ballistics analysis was harmless beyond a reasonable doubt. Commonwealth v. Vasquez, 456 Mass. 350 , 360 (2010). “[T]o 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.” Id. at 362, quoting from Commonwealth v. Tyree, 455 Mass. 676 , 704 n.44 (2010). In determining whether the Commonwealth has met its burden here, we do not consider the defendant’s admissions made during his testimony. See Commonwealth v. Mendes, 78 Mass. App. Ct. 474 , 480-481 (2010), further appellate review granted, 459 Mass. 1104 (2011) (holding that it is not “appropriate” in the harmless error analysis to rely on admissions made by a defendant during his testimony at trial, because the court “cannot know whether the . . . testimony was a response to the erroneous admission of the certificates and hence tainted by the error”).
1. Ballistics certificate. The Commonwealth introduced the erroneously admitted ballistics certificate as prima facie evidence that the pistol recovered by police met the statutory definition of a firearm, an essential element of the offense charged. See Commonwealth v. Pittman, 76 Mass. App. Ct. 905, 906 (2010). Despite the defendant’s concession at trial that he had “possess[ed] the gun” (see note 2, supra), the Commonwealth agrees that it retained the ultimate burden of proving at trial that the pistol was operable. It argues on appeal that other, lawfully admitted evidence of operability was potent enough to render the admission of the ballistics certificate harmless beyond a reasonable doubt. We agree.
During its case-in-chief and on rebuttal, the Commonwealth presented significant evidence — independent of the ballistics certificate — that the pistol met the statutory definition of a firearm. In addition to the gun itself, which the Commonwealth introduced as an exhibit, the jury were shown security footage from the shooting depicting the discharge of multiple firearms, and heard testimony from officers that numerous cartridge casings, including two matching the pistol in evidence, were retrieved from the crime scene. Based on the evidence, the jury could have comfortably concluded that the subject firearm was among those depicted being fired. See Commonwealth v. Mendes, 75 Mass. App. Ct. 390 , 397 (2009) (independent evidence consisting of three audible shots, the recovery of three empty casings, and the smell of gunpowder rendered the admission of a ballistics certificate harmless beyond a reasonable doubt). Equally if not more compelling was Trooper Schrijn’s testimony in rebuttal that the gun had been test fired in order to obtain spent casings for comparison with evidence retrieved from the crime scene, and his opinion that two of the spent casings found at the scene resulted from shots fired by the firearm in question. This independent testimony overwhelmingly supported the inference that the gun was capable of firing a bullet. Accord Commonwealth v. Depina, 456 Mass. 238 , 249-251 (2010). Taken in combination, the quantity and quality of the lawfully admitted evidence satisfies us that it was sufficient to “nullify any effect” the erroneously admitted ballistics certificate “might have had.” Vasquez, 456 Mass. at 362.
2. Certificates of drug analysis. Like the ballistics certificate discussed above, the Commonwealth introduced the erroneously admitted certificates of drug analysis to prove an essential element of a charged offense, the chemical composition of the alleged cocaine. In contrast to the firearm evidence, however, the record contains virtually no evidence, aside from the certificates and the defendant’s testimonial admissions, from which the jury independently could have inferred that the substances found in the defendant’s sock were cocaine. The arresting officer’s conclusory observation that the substances retrieved from the defendant’s sock at the hospital “appeared to be” crack and powder cocaine, upon which the Commonwealth principally relies, is insufficient to show harmlessness beyond a reasonable doubt. See Vasquez, 456 Mass. at 365; Commonwealth v. Charles, 456 Mass. 378 , 382 (2010). This court’s recent decision in Mendes, 78 Mass. App. Ct. at 480-481, does not permit us to consider the defendant’s testimonial admissions as substantive evidence of guilt in the harmless error analysis. [Note 8] Accordingly, we are constrained to vacate the defendant’s conviction of possession of cocaine.
The dissent posits that, despite the lack of independent evidence establishing the chemical composition of the alleged cocaine, we may affirm the defendant’s drug conviction based on his concession at trial to “possession of the cocaine” and on the judge’s communication of that concession to the jury. This concession, the dissent reasons, was part of an “obvious trial strategy . . . to give a little [the cocaine charge for which the defendant was facing a relatively short sentence] in the hope of gaining a lot [credibility in the eyes of the jury for his necessity defense on the more serious gun charge].” Even assuming this to be true, and although such a strategy might have been reasonable in the circumstances, our cases make clear that the “defendant’s theory of his case cannot relieve the Commonwealth of its burden of proving every element of a crime beyond a reasonable doubt.” Charles, supra at 383, quoting from Commonwealth v. Shea, 398 Mass. 264 , 269 (1986). “[B]y giving the defendant the benefit of the harmless beyond a reasonable doubt standard, as we have, ‘the defendant is effectively in the same position as if he had objected to the admission of the drug certificates.’ ” Charles, supra, quoting from Vasquez, 456 Mass. at 368. Ultimately, the Commonwealth must show that admissible evidence independent of the certificates overwhelmingly proves the nature of the charged substances.
The dissent also argues that the defendant’s concession amounted to a “stipulation,” which relieved the government of its burden of proving the composition of the charged substances by lawfully admitted evidence. In conducting harmless error analysis under Melendez-Diaz, our courts have often noted that the Commonwealth retains the burden of proving each element of a crime charged absent a “stipulation.” See, e.g., Commonwealth v. Muniz, 456 Mass. 166 , 173 n.7 (2010); Vasquez, supra at 367-368, citing Melendez-Diaz, 129 S. Ct. at 2542. Although our cases do not precisely delimit what constitutes a “stipulation” in this context, the Supreme Judicial Court has held that the government retains its burden of proof in a drug case where a defendant does not specifically “stipulate to the composition of the substances” (emphasis supplied). Charles, 456 Mass. at 383 (rejecting the argument that defense counsel may “tacitly stipulate” to the nature of a substance by repeatedly referring to it as “cocaine” at trial). Here, as in Charles, counsel’s representation that the defendant was “conced[ing] . . . possession of the cocaine” fails to stipulate to, or even specifically address, the composition of the substance. We, therefore, decline to treat it as relieving the Commonwealth of its burden on this element.
Conclusion. For the foregoing reasons, we reverse the judgment on the indictment charging possession of cocaine, set aside the verdict, and remand the case to the Superior Court for further proceedings. The judgment on the indictment charging unlawful possession of a firearm is affirmed.
Attorney Ronald A. Sellon