Opinion
10-P-244
08-16-2011
COMMONWEALTH v. MARK S. BERRY.
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
The defendant, Mark S. Berry, was found guilty in District Court in a jury-waived trial of possession of marijuana and distribution of a class C drug (hydrocodone). On appeal he claims error in the denial of his motion to suppress evidence (including drugs) obtained pursuant to a search warrant. He also argues that the admission of laboratory drug certificates without live testimony violated his confrontation rights and that this error was not harmless beyond a reasonable doubt.
Discussion. 1. Motion to suppress. The affidavit in support of the search warrant relied on information supplied by a confidential informant, including the assertion that the informant made numerous past purchases of drugs from the defendant's apartment. The defendant contends that the Commonwealth failed to establish the reliability and basis of knowledge of the confidential informant under Aguilar-Spinelli. Here, the motion judge correctly concluded that the affidavit established the informant's basis of knowledge, but that the informant was not reliable. Nevertheless, independent police corroboration can and did compensate for a deficiency in the reliability of the informant. See Commonwealth v. Cast, 407 Mass. 891, 896 (1990). The police conducted two controlled buys from the defendant's apartment. In addition, another informant (who was a defendant in a separate case) named the defendant as the source of illegally possessed pharmaceutical pills. The affidavit also states that several neighbors have complained of heavy traffic to the defendant's unit, believing that the defendant was selling drugs. This information was sufficient to corroborate the informant's reliability. Consequently, the affidavit provided probable cause to believe contraband would be found in the apartment. The motion judge did not err in denying the defendant's motion to suppress.
See Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985) (Spinelli v. United States, 393 U.S. 410 [1969], and Aguilar v. Texas, 378 U.S. 108 [1964], provide structure for probable cause analysis).
The motion judge stated that the informant satisfied the basis of knowledge prong because he had direct knowledge of the defendant's drug sales. See Commonwealth v. Spano, 414 Mass. 178, 185 (1993) (basis of knowledge satisfied where informant provides details about mechanisms of drug transaction). Furthermore, the judge noted that deficiencies, if any, in the basis of knowledge prong were remedied by the controlled buys.
Although the police were only able to observe the confidential informant enter the apartment building, but not the apartment itself, 'police [are] not required to risk disclosure of their surveillance by accompanying the informant' to an apartment within a multi-unit dwelling. Commonwealth v. Warren, 418 Mass. 86, 90 (1994). Commonwealth v. Velez, 77 Mass. App. Ct. 270, 273-274 (2010).
2. Drug certificates. Admission of the drug certificates over the defendant's objection was error, see Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), and we review to determine whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010). In making this determination, we consider various factors, none of which is exclusive or exhaustive. Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).
a. Marijuana. To prove the contents of the glassine bags were marijuana, the Commonwealth provided testimony from Detectives John Manning and Scott Chaulk. Detective Manning, an officer experienced in narcotics investigations, identified the substance as marijuana based on '[t]he way [it's] packaged . . . into dime bags,' and he noted the '[g]reen, herbal-like substance' containing 'seeds in there, sticks, stems, all consistent with marijuana.' He also stated that based on '[t]he odor, there's absolutely no doubt in my mind that's marijuana.' Thus, not only did Detective Manning testify that the substance looked like marijuana, but based on his experience he described the characteristics that distinguished the substance as marijuana. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 158 (2010). Contrast Commonwealth v. Charles, 456 Mass. 378, 382 (2010); Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 244 (2009). Detective Chaulk, who was also trained in narcotics investigations, viewed the glassine bags and testified that he believed the substance was marijuana. Given this evidence, the Commonwealth satisfied its burden of demonstrating that the introduction of the marijuana certificate was harmless beyond a reasonable doubt.
The defendant asserts, based on Commonwealth v. Dawson, 399 Mass. 465, 467 (1987), that the detectives cannot give expert opinion unless the judge explicitly determines that the officers are qualified as experts. However, '[t]he mere fact that [the judge] permitted the witness to give expert testimony implies such a finding.' Commonwealth v. Boyd, 367 Mass. 169, 183 (1975). In the absence of a request by the defendant, a judge is not required explicitly to find that the officer is qualified to testify as an expert. See Commonwealth v. Salcedo, 405 Mass. 346, 350 (1989) ('It is evident from the transcript that the judge believed the . . . officer was qualified, and his allowing the testimony implies he made that finding').
b. Hydrocodone. The Commonwealth, however, has failed to establish that the certificate of analysis for the residue in the bottle was harmless beyond a reasonable doubt. Although the prescription label on the bottle indicated that it contained 120 hydrocodone pills, the bottle was empty. Contrast Commonwealth v. Greco, 76 Mass. App. Ct. 296, 299 (2010) (admissible evidence included actual pills). At no point during trial did the Commonwealth introduce any pills, nor did either Detective Manning or Chaulk testify as to the composition of the residue in the bottle. Furthermore, the Commonwealth concedes that the certificate is the only evidence presented at trial to establish that the residue in the bottle was a class C substance, as defined in G. L. c. 94C, § 31. As the identity of the controlled substance is a necessary element of the crime charged, and the Commonwealth failed to introduce any other admissible evidence that the bottle in fact contained a class C substance, we cannot say that the introduction of the certificate was harmless beyond a reasonable doubt.
Because we conclude that the admission of the certificate of analysis for the hydrocodone was not harmless error, and therefore vacate the judgment and set aside the finding as to the charge of distribution of a class C substance, we need not address the defendant's argument on sufficiency of the evidence on the distribution charge.
Conclusion. As to the charge of distribution of a class C controlled substance, the judgment is vacated and the finding set aside. As to the charge of possession of a class D drug, the judgment is affirmed.
So ordered.
By the Court (Rapoza, C.J., Mills & Green, JJ.),