Opinion
13-P-1874
12-17-2014
COMMONWEALTH v. ANTOINE E. AYOUB.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial that concluded on March 14, 2008, the defendant, Antoine E. Ayoub, was convicted of multiple counts of assault and battery by means of a dangerous weapon; assault and battery on a police officer; carrying a firearm without a license; possession of a firearm without a firearm identification card; possession of class B and class E substances; reckless operation of a motor vehicle; and refusal to stop for police. Following an unsuccessful direct appeal, the defendant filed a motion for new trial, which the trial judge denied. In his motion for a new trial, the defendant argued that his counsel had been constitutionally ineffective based on the failure of trial and appellate counsel to challenge: (1) the closure of the courtroom during jury selection; and (2) the introduction of drug and ballistic certificates without supporting testimony. We affirm in part, and reverse in part.
1. Standard of review. A defendant may make a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), which may be granted "if it appears that justice may not have been done." "The decision to allow a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or unless the trial was infected with prejudicial constitutional error." Commonwealth v. Nieves, 429 Mass. 763, 770 (1999). When a defendant asserts in his motion for new trial that counsel's failure to present a claim was due to ineffective assistance, "we do not evaluate the ineffectiveness claim separately." Commonwealth v. Randolph, 438 Mass. 290, 296 (2002). "If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice -- ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not." Ibid.
2. Public trial. The Supreme Judicial Court has held that in cases such as this, where the public trial claim was procedurally waived and the defendant argues ineffective assistance of counsel in a collateral attack on his conviction, "the defendant is required to show prejudice from counsel's inadequate performance." Commonwealth v. LaChance, 469 Mass. 854, 856 (2014). Here, the trial was closed to the defendant's family and friends during jury empanelment, though the family and friends were allowed to reenter the courtroom once testimony began. These facts do not demonstrate prejudice. "While a jury empanelment closed to spectators (other than jurors) and the defendant's family may be a structural error, it will rarely have an effect on the judgment, or undermine our reliance on the outcome of the proceeding." Id. at 859 (citations omitted).
3. Melendez-Diaz claim. On June 25, 2009, the United States Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which held that the Sixth Amendment to the United States Constitution does not permit the prosecution to prove its case via ex parte out-of-court affidavits, such as drug and ballistic certificates, as these are testimonial statements whose admission in evidence triggers the protections of the confrontation clause. On July 8, 2009, the defendant filed his brief on direct appeal, and oral argument was held on March 18, 2010. At neither point did he raise the issue of the Melendez-Diaz decision.
Despite this procedural waiver, he currently argues that his confrontation clause claim should be reviewed under the harmless beyond a reasonable doubt standard as described in Commonwealth v. Vasquez, 456 Mass. 350, 355-356, 360 (2010). However, the standard utilized in Vasquez does not apply here, given that the defendant failed to make his confrontation clause claim even after the Melendez-Diaz decision issued. As a result, we will apply the substantial risk standard for waived ineffective assistance claims. See Randolph, supra.
a. Ballistics certificate. Though the admission of the ballistics certificate qualified as error, and on appeal, defense counsel failed to challenge its admission, there was no substantial risk of a miscarriage of justice. To be considered a firearm within the meaning of G. L. c. 140, § 121, and thereby G. L. c. 269, § 10, the item in question must be: (1) a weapon; (2) capable of discharging a shot or a bullet; and (3) under a certain length. Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). "The burden on the Commonwealth in proving that the weapon is a firearm in the statutory sense is not a heavy one. It requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire." Ibid.
In this case, the police recovered from the center console area of the vehicle a loaded .45 caliber Sig Sauer semiautomatic pistol with a magazine attached. In addition to the ballistics certificate, the pistol, a magazine, a holster, and a spent projectile and casing were entered in evidence without objection. Moreover, the defendant testified to purchasing the firearm and firing it on previous "training" occasions. When considered alongside such overwhelming evidence, it is clear that counsel's failure to challenge the admission of the ballistics certificate posed no substantial risk of a miscarriage of justice. See Commonwealth v. Fancy, 349 Mass. 196, 204 (1965) (gun in question was loaded, thereby allowing jury to find it was operable); Commonwealth v. Hollister, 75 Mass. App. Ct. 729, 733 (2009) (noting importance of evidence whether gun had previously been fired).
b. Drug certificates. Defense counsel's failure to challenge the introduction of the drug certificates in evidence created a substantial risk of a miscarriage of justice. "In a case involving a narcotics offense, the Commonwealth must prove beyond a reasonable doubt that the substance at issue is a particular drug because such proof is an element of the crime charged." Commonwealth v. Paine, 86 Mass. App. Ct. 432, 434 (2014) (citations omitted).
Regarding the defendant's class B controlled substance charge, a silver pipe and a piece of paper with cocaine residue (both of which were recovered from the defendant's vehicle) were entered in evidence at trial, along with their resulting certificates of analysis. The defendant testified that he sometimes used cocaine for controlled buys when working as a confidential informant with the State police, and that he did not "have to worry about" having cocaine in his vehicle because of his connection to the State police. While this evidence is significant, see Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 242 (2009) (defendant admitted to drug dealing); Commonwealth v. Villatoro, 76 Mass. App. Ct. 645, 652-654 (2010) (defendant acknowledged substance was marijuana and described his long history of marijuana use), the defendant also denied any knowledge that cocaine was in the car at the time of the incident, and claimed that other than when he first test-drove the car, the night in question was the only time he had driven the vehicle. Furthermore, as indicated in the prosecutor's closing argument, the Commonwealth relied exclusively on the drug certificate to identify the residue as cocaine. When considering the admissible evidence in its entirety, it is clear that counsel's failure to challenge the admission of the drug certificate in regard to the class B charge posed a substantial risk of a miscarriage of justice. See Commonwealth v. Mendes, 463 Mass. 353, 360 (2012) ("Drug certificates assure the fact finder, to a degree that virtually no amount of circumstantial evidence can, that the charged substance is in fact a particular illegal drug") (citation omitted).
The same may be said of the drug certificate that accompanied the prescription pills. Police recovered from the defendant's briefcase a prescription bottle listing another person's name and containing thirty-seven white pills. The bottle, the pills, and the accompanying certificate of analysis were entered in evidence. Though the label on the bottle states that it contains tizanidine -- which, as the judge instructed the jury, is a class E substance -- there is no other evidence "establishing that the substance is, in fact, the drug alleged, as distinct from a different or counterfeit drug." Paine, 86 Mass. App. Ct. at 435. Contrast Commonwealth v. Alisha A., 56 Mass. App. Ct. 311, 312-315 (2002) (additional evidence of controlled substance included testimony from owner of pills and labeling on pills, confirming they were Klonopin); Commonwealth v. Greco, 76 Mass. App. Ct. 296, 298-300 (2010) (additional evidence of controlled substance included pill bottle bearing defendant's name and labeling on pills, confirming they were Seroquel). In these circumstances, the certificate constituted significant evidence to establish the identity of the substance, which the jury relied on to convict the defendant for this offense. Thus, counsel's failure to challenge the drug certificate that accompanied the prescription pills also gives rise to a substantial risk of a miscarriage of justice.
4. Conclusion. For the reasons explained, the judgments are reversed and the verdicts are set aside on the indictments charging possession of class B and class E substances. The order denying the defendant's motion for new trial is reversed as to those convictions. In all other respects, the order is affirmed.
So ordered.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: December 17, 2014.