Opinion
No. 11–P–16.
2012-06-11
COMMONWEALTH v. Anthony C. LACAVA.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of trafficking in twenty-eight grams or more but less than one hundred grams of cocaine (count one), possession of oxycodone (count three), and resisting arrest (count five). To prove that the substances at issue were in fact cocaine and oxycodone, the Commonwealth introduced certificates of analysis from the State crime laboratory. As the Commonwealth acknowledges, the admission of the drug certificates without testimony from the certifying analyst was constitutional error. See Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009). The Commonwealth also laudably and correctly concedes that the error was not harmless beyond a reasonable doubt. See Commonwealth v. Vasquez, 456 Mass. 350, 360–368 (2010). The defendant is therefore entitled to a new trial with respect to the two drug convictions.
The resisting arrest conviction (count five) is unaffected by the confrontation clause violations.
Separately, the defendant argues that the search warrant through which the Commonwealth obtained some of its drug evidence was invalid, because the officer who obtained the warrant did not appear in person before the issuing judge and because the judge telephonically authorized the officer to sign for him. See Commonwealth v. Nelson, 460 Mass. 564, 570–573 (2011) (reviewing the requirements of G.L. c. 276, § 2B).
This was the subject of two posttrial motions heard by the trial judge: a motion for new trial and a parallel motion to set aside the verdicts.
A police report that was provided to the defendant in discovery included the following: “Please note that the on-call magistrates did not answer repeated pages and it was suggested that the on-call Judge be called, thus, Judge Martha P. Grace was contacted. This process was facilitated through fax and e-mailings because the on-call Judge resides in the area of Worcester, Massachusetts.” Despite being armed with this information, and despite bringing motions to suppress on various other grounds, the defendant did not challenge the search warrant before trial based on police noncompliance with the “in person” requirement. There is substantial force to the Commonwealth's contention that the defendant thereby waived the argument. See Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004). Given that waiver, this issue was not properly preserved for appellate review. Notwithstanding that lack of preserved error, which would be an independent basis to reject the defendant's claim, we address the substance of the claim and, for the reasons stated, reject the defendant's appellate argument that the search warrant was invalid.
The officer who obtained the warrant submitted an affidavit detailing how he resorted to telephonic contact with a judge at a considerable distance away
During the trial, the defendant filed a motion to dismiss based on the Commonwealth's alleged failure to disclose exculpatory evidence (the specific fact that the issuing judge did not herself sign the warrant but authorized the officer to do so). The judge indicated that the defendant should re-raise the issue in a posttrial motion. The defendant filed two posttrial motions raising compliance with the “in person” requirement, a motion for a new trial and a motion to set aside the verdicts. In denying the motion for a new trial, the judge noted that the defendant was seeking to set aside the verdicts, and we agree with the parties that the judge treated the two motions as one and implicitly denied the motion to set aside the verdicts as well.
only after attempts to obtain a warrant through the usual means failed. Based on those efforts, the trial judge concluded that “[t]he police officers went to great lengths to obtain a valid search warrant and relied on the issuing justice's verbal authorization of the warrant after she had received and read [the officer's] affidavit but had been unable to affix her signature due to technological problems relating to the faxing equipment.” In Nelson, which was issued after the trial judge here ruled on the posttrial motions, the Supreme Judicial Court directed that “in the rare case where an officer must rely on communication by telephone and facsimile transmission to obtain an otherwise valid search warrant, the motion judge must make an express finding that the officer exhausted all reasonable efforts to find a judge before whom he could personally appear.” 460 Mass. at 573. Although the trial judge in the case at hand did not have the benefit of Nelson, the plain thrust of the findings he made was that the police had “exhausted all reasonable efforts” before following the emergency course of action they did. While it is true that the trial judge did not hold an evidentiary hearing, neither did the defendant request one or even suggest that the underlying facts were actually in dispute. We discern no error in the judge's denial of the posttrial motions for a new trial and to set aside the verdicts.
The police officers were in Wakefield. After their attempts to reach the assigned “on-call” clerk magistrate, the officers reached the on-call judge, who was located in the Worcester area.
The judgment as to count five is affirmed. The judgments as to counts one and three are reversed, and the verdicts on those counts are set aside.
These counts may be retried. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995).
So ordered.