COMMONWEALTH vs. Luis E. MELENDEZ-DIAZ
October 8, 2009. - February 3, 2010.
INDICTMENT found and returned in the Superior Court Department on March 4,
The case was tried before Barbara J. Rouse, J.
Helle Sachse, Assistant District Attorney, for the Commonwealth.
T. Rogers for the defendant.
Present: Rapoza, C.J., Duffly, & Cypher, JJ.
2007, this court, in an unpublished decision, affirmed the defendant's convictions by a Superior Court jury of trafficking
in cocaine between fourteen and twenty-eight grams and distributing cocaine. The United States Supreme Court subsequently
granted the defendant's petition for a writ of certiorari, and in Melendez-Diaz v. Massachusetts,
129 S.Ct. 2527 (2009), reversed the judgment of this court and remanded for further consideration on the question whether
the constitutional error [FN1] in admitting the drug certificates of analysis in evidence at trial was harmless beyond a reasonable
doubt. The Supreme Court noted, "We of course express no view as to whether the error was harmless.
The Massachusetts Court of Appeals did not reach that question and we decline to address it in the first instance.... Today's
opinion ... in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction."
Id. at 2542 n. 14. We reverse.
The fundamental facts are not in dispute. On November 15, 2001, Boston police were alerted to suspicious conduct of Thomas
Wright, an employee of a K-Mart store (store) in the South Bay Mall in the Dorchester section of Boston, by the loss-prevention
manager of that store. On that day, as had occurred on several occasions in the previous three months, Wright was observed
as he walked outside and got into a blue, four-door Mercury Sable automobile through the rear passenger door; a meeting apparently
had been arranged with the driver by telephone and cellular telephone. Police nearby observed the car travel slowly through
the parking lot and saw Wright, sitting on the rear seat, lean toward and between the two men in the front seats. When Wright
leaned back, the car stopped; he then left the car and started walking back to the store. He was stopped by an officer who
searched him and found four clear plastic bags that appeared to contain cocaine. Other officers were signaled to stop and
arrest the driver, Ellis Montero, and the passenger, the defendant Melendez-Diaz. Montero and the defendant were frisked for
weapons, but not searched.
The officers then drove to the front of the store and picked up Wright.
Montero, Wright, and the defendant were handcuffed with their hands behind their backs and placed in the rear seat of a police
cruiser to be taken to the police station. On the way, the defendant and Montero, who were sitting next to each other, were
talking to each other in Spanish, fidgeting, making furtive movements, leaning to make space between them, and kicking the
back of the cruiser's front seat. Wright was seated on the end of the rear seat next to the door on the passenger side and
was not observed moving around.
At the police station during booking, two cellular telephones and $301 were taken from
Montero, and $157 and a pager were taken from the defendant. One of the officers returned to the cruiser and found a fold
of bills totaling $320 on the ground near the door used by Montero and the defendant when they were taken from the cruiser.
A plastic bag containing nineteen smaller bags of what appeared to be cocaine was also found hidden in a partition between
the front and rear seats of the cruiser, on the side where Montero and the defendant had been seated. [FN2]
Background of this remand. On the defendant's direct appeal, this court issued an unpublished memorandum and order pursuant to Appeals Court rule 1:28, in which we
concluded (1) the trial judge did not err in denying the defendant's motion for required findings of not guilty on the indictments
charging distributing and trafficking in cocaine; (2) trial counsel was not ineffective for not filing a motion to suppress;
and (3) not ineffective for failing to point out the visual dissimilarities between the packages of cocaine obtained from
Wright and those found in the police cruiser. Commonwealth v. Melendez-Diaz, 69 Mass.App.Ct.
In a separate argument in his appellate brief, the defendant claimed a violation of Crawford v. Washington, 541 U.S. 36 (2004), asserting that Commonwealth v.
Verde, 444 Mass. 279 (2005), is contrary to Crawford, and that the three drug
analysis certificates were erroneously admitted in evidence without first satisfying the requirements of Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994) (outlining a judge's "gatekeeper role" in assessing the
scientific validity and reliability of expert opinion). There were objections at trial, based on Crawford, to the three certificates introduced in evidence by the Commonwealth. The defendant's argument was
dismissed in a footnote to our decision, relying on the Verde decision.
accordance with the directive from the Supreme Court, we proceed to consider the effect of the preserved error in the admission in evidence of the drug analysis
Discussion. The Supreme Court ruled in Melendez-Diaz v. Massachusetts that "[t]he Sixth Amendment does not permit the prosecution to prove its case
via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz
was error." Id. at 2542. The standard for our review of constitutional error has been
described by a number of formulations, including the following:
"Because the defendant's constitutional right to cross-examine
was abridged, we must review the violation for prejudicial error. In Commonwealth v. Miles,
[420 Mass. 67, 73 (1995) ], we concluded that '[t]he admission of testimony obtained in violation of a defendant's confrontation
rights will not amount to reversible error "if the reviewing court may confidently say, on the whole record, that the constitutional
error was harmless beyond a reasonable doubt." ' Id. at 73, quoting Delaware v. Van Arsdall, [475 U.S. 673, 681 (1986) ]." Commonwealth v. Vardinski,
438 Mass. 444, 452 (2003).
"We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375
U.S. 85, [86-87 (1963) ] ... 'The question is whether there is a reasonable possibility that the evidence complained of might
have contributed to the conviction.' " Chapman v. California, 386 U.S. 18, 23 (1967).
"An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under
Fahy, be conceived of as harmless." Id. at
"To make that determination, we examine a number of factors, including the importance of the evidence in the
prosecution's case, the frequency of reference to the evidence, whether it was cumulative of other evidence and whether the
other evidence against the defendant was overwhelming." Commonwealth v. Rosario, 430
Mass. 505, 511 (1999).
We also consider "the relationship between the evidence and the premise of the defense." Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).
The defendant argues that we
"need go no further than to examine that the evidence that should not have been admitted was the total evidence of an element
of the crime." After a careful search of the record, we agree with the defendant that the only material evidence that the
substances were cocaine, and that they weighed specific amounts, was contained in the drug analysis certificates.
"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). "The trial judge will first have to make a finding that any police or drug-user witness's experience
with a drug would or would not permit him to give an opinion as to what drug a particular substance was." Ibid.
Two police officers testified that the substances in the seized plastic bags "appeared" to be,
or "looked like" cocaine, and that the method of packaging and estimated street value was supported by their experience in
numerous other cases that cocaine had been distributed in a similar manner by automobile. One of the officers acknowledged
on cross-examination that he had no "real knowledge" of what the substances were, except for what was in the drug certificates.
The word cocaine frequently was used by the police, but at no time did the officers cite any objective evidence, criteria,
or field tests; they did not articulate how their expertise permitted them to identify the substances as cocaine. The defendant,
Montero, and Wright did not testify, and there is no evidence that at any time they specifically identified, admitted, or
referred to any of the substances as cocaine.
The major part of the officers' testimony constituted circumstantial evidence of
drug distribution. [FN3] Compare Commonwealth v. Little, 453 Mass. 766, 769 (2009)
("[n]arcotics investigators may testify as experts to describe how drug transactions occur on the street"). "We suspect it
would be a rare case in which a witness's statement that a particular substance looked like a controlled substance would alone
be sufficient to support a conviction," Commonwealth v. Dawson, supra, particularly
where, as here, there was insufficient evidence to conclude beyond a reasonable doubt that the substances were cocaine. [FN4]
The certificates remained the only direct evidence of the composition and weight of the seized packages.
instructed the jury that "the Commonwealth must prove to you that the substance that the defendant allegedly possessed was,
in fact, cocaine.... In considering this element, you may consider all the relevant evidence you had in the case about what
that substance was." He pointed out that "[i]n particular, you have a certificate of analysis ... and you should consider
that together with all other evidence." He concluded, "So from that certificate of analysis you're permitted but you're not
required to conclude that the substance was cocaine. It is entirely up to you to decide." Together with the prosecutor's statement
in closing argument that the four bags seized from Wright were "cocaine, analyzed as such," the certificates had a high evidentiary profile in the
case. [FN5] Contrast Commonwealth v. Madera, ante 154, 158 (2010).
asserts that "the nature and weight of the drugs were ... not live issues at trial." Because the trial judge admitted the
drug analysis certificates over objection without questioning the grounds for the objection or inviting argument, the defense
hardly was in a position to argue that the substances were not cocaine. See Mass.R.Crim.P. 22, 378 Mass. 893 (1979). See also
Smith, Criminal Practice & Procedure § 33.8 at 762 (3d ed.2007). In light of the law then in effect, "[i]t is neither
realistic nor fair in these circumstances to place much weight on the fact that the defendant ... did not attack the contents
of the certificate." Commonwealth v. Hollister, 75 Mass.App.Ct. 729, 732 (2009). See
Commonwealth v. Tyree, 455 Mass. 676, 704 n. 43 (2010).
We conclude that the
certificates were of significant importance in the Commonwealth's case because they were the only evidence of the composition
and weight of the substances, and the other evidence against the defendant was circumstantial and certainly not overwhelming.
The improperly admitted certificates cannot be said to have played little or no role in the outcome of the case. Consequently,
the error in their admission was not harmless beyond a reasonable doubt.
Verdicts set aside.
"Absent a showing that the analysts were unavailable to testify at trial and that
petitioner had a prior opportunity to cross-examine them, petitioner was entitled to 'be confronted with' the analysts at
trial[, quoting from Crawford v. Washington, 541 U.S. 36, 54 (2004) ]." Melendez-Diaz v. Massachusetts, 129 S.Ct. at 2532.
Montero and the defendant were tried together under a joint venture theory.
FN3. Much testimony was directed at estimating the street selling prices of
the packages. While some of the testimony relied directly on the $320 (found after the codefendants had been taken from the
cruiser) as the likely price paid for the four packages seized from Wright, the selling price of cocaine is irrelevant to
prove that the substances were cocaine. The defendant cites G.L. c. 94C, § 32G, penalizing the distribution of counterfeit
substances as indicating that counterfeit substances are being distributed. It
appears likely that only laboratory analysis would determine whether a substance is counterfeit.
FN4. We reject the Commonwealth's assertion that the jurors could inspect the
drugs during deliberations and could conclude from their own observations that the substances were cocaine. Although in Commonwealth v. Connolly, 454 Mass. 808, 831-832 (2009), the Supreme Judicial Court observed
that the jury could evaluate the weight of a quantity of cocaine that was entered in evidence and taken in the jury room,
there was no suggestion that the jury would have been able to assess the nature of the substance itself, nor would such a
suggestion be warranted.
The defendant disputes police testimony that the substances appeared to be of the
same size, and identically packaged, stating to the contrary that the forms of the substances varied from powder to small
and large rocks, and varied in color.
FN5. Each of the drug analysis certificates quoted from G.L. c. 111, § 13,
at the bottom of the page, as follows:
"This certificate shall be sworn to before a justice of the peace or notary
public, and the jurat shall contain a statement that the subscriber is the
analyst or an assistant analyst of the department. When properly executed,
it shall be prima facie evidence of the composition, quality, and the net weight of the narcotic or other drug, poison, medicine,
or chemical analyzed ... and the court shall take judicial notice of the signature of the analyst or assistant analyst, and
of the fact that [he or she] is such."
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