Opinion
09-P-2276
08-31-2011
COMMONWEALTH v. CHARLES IVERY.
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, the defendant, Charles Ivery, was convicted of distribution of cocaine in a school zone. He was then convicted, in a jury-waived trial, of a subsequent offense. On appeal, the defendant claims that the introduction of a certificate of analysis without the testimony of the analyst violated his right of confrontation under the Sixth Amendment to the United States Constitution, as interpreted by the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). He also claims that the trial judge abused her discretion when she admitted in evidence an 'arrest booking form' that contained the defendant's photograph and a document from the Boston Municipal Court showing the defendant's previous conviction of possession of a class B drug with intent to distribute.
The defendant's claim regarding the certificate of analysis is controlled in all material respects by Commonwealth v. Casali, 459 Mass. 139, 147 (2011). Here, as in Casali, a police officer testified regarding his training in identifying cocaine and also testified that he had field tested the substance and the results were positive for cocaine. See Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 874-875 (2010) (officer's testimony concerning training and positive field test result rendered admission of certificate of analysis harmless beyond a reasonable doubt). In addition, the defendant, knowing that the police officer had just rejected a sale of a substance he considered to be counterfeit, said to the officer, 'I'll take care of you'; 'I've got some real stuff.' Therefore, although the admission of the certificate of analysis without the testimony of the analyst was error, it was harmless beyond a reasonable doubt.
The defendant's argument that, during the jury-waived portion of the trial, the judge abused her discretion by admitting the booking form and the document from the Boston Municipal Court is unavailing. See the Commonwealth's brief at pages fourteen through eighteen and the arguments and authorities cited therein.
Judgment affirmed.
By the Court (Cypher, Kantrowitz & Berry, JJ.),