Opinion
10-P-722
12-05-2011
COMMONWEALTH v. ELVIS LOPEZ.
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 bench trial in Superior Court, the defendant was convicted of trafficking in cocaine (fourteen to twenty-eight grams), G. L. c. 94C, § 32E(b) (1); trafficking in cocaine in a school zone, G. L. c. 94C, § 32J; and possession of marijuana, G. L. c. 94C, § 34. We conclude that reversal of these convictions is required by the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). For purposes of a potential retrial, we address the defendant's argument that the judge erred in denying his motion to suppress, and we conclude that the motion was properly denied.
The defendant was also convicted of assault and battery upon a public employee, G. L. c. 265, § 13D, and resisting arrest, G. L. c. 268, § 32B. He has not alleged error as to those convictions. In addition, the defendant was charged with possession of cocaine, G. L. c. 94C, § 34, a lesser included offense of trafficking. At the close of trial, the judge stated that he was dismissing this charge as duplicative. On appeal, the Commonwealth acknowledges that the cocaine possession count was dismissed and that only the convictions for trafficking and marijuana possession are at issue. Nevertheless, a guilty finding was actually entered on the possession charge and a sentence imposed, a development that neither party has noted. Given that the Commonwealth has acknowledged that the judge intended to dismiss that count as duplicative and given that we are reversing the separate judgment that made it duplicative, we are also reversing the judgment on the charge of possession of cocaine and setting aside the finding on that charge.
1. Confrontation clause. Toward proving the composition of the alleged cocaine and marijuana and the weight of the alleged cocaine (necessary elements of the crimes charged), the Commonwealth introduced four laboratory certificates without the analyst testifying. The Commonwealth concedes that this was error, see Melendez-Diaz v. Massachusetts, supra at 2532, and acknowledges that the drug convictions can be upheld only if the error was 'harmless beyond a reasonable doubt.' Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010).
In determining whether the error was harmless, we ask 'whether 'on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the [fact finder] and did not contribute to the [fact finder's findings]." Ibid., quoting from Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). That standard is met only if other properly admitted evidence was ''so powerful as to nullify any effect' that the improperly admitted evidence 'might have had' on the fact finder or the findings.' Commonwealth v. Vasquez, supra at 362, quoting from Commonwealth v. Tyree, supra at 704 n.44. The Commonwealth bears the burden of demonstrating that the error was harmless beyond a reasonable doubt. Commonwealth v. Tyree, supra at 701.
Although the Commonwealth presented other evidence relevant to the identity of the alleged drugs, that evidence was not sufficiently 'overwhelming' to render admission of the certificates harmless beyond a reasonable doubt. Indeed, with the certificates before him stating with seeming exactitude the identity and weight of the substances, the judge had no reason to try to make his own assessment of those issues. Cf. Commonwealth v. Medina, 430 Mass. 800, 803 (2000) (in evaluating whether an error is harmless beyond a reasonable doubt, court should consider whether the error narrowed the jury's focus). On this record, we are compelled to conclude that the improper introduction of the certificates might have had an effect on the fact finder and, therefore, that this error was not harmless beyond a reasonable doubt.
The parties debate whether the defendant effectively admitted through his testimony that the substance found on him was cocaine. We have previously questioned the appropriateness of relying on such admissions in the harmless error analysis. See Commonwealth v. Mendes, 78 Mass. App. Ct. 474, 480-481 (2010), further appellate review granted, 459 Mass. 1104 (2011). Even were the Supreme Judicial Court to decide that a defendant's testimony may be considered in this context, reversal here would in any event be required, because the defendant made no admissions regarding the identity of the alleged marijuana or the weight of the alleged cocaine. The Commonwealth has not asked us to modify the relevant judgments to ones for simple possession of cocaine. See Commonwealth v. Colon, 52 Mass. App. Ct. 725, 731 (2001).
2. Suppression motion. The defendant argues that the judge erred in denying his motion to suppress the alleged drugs because they were discovered as the result of an unconstitutional patfrisk. We disagree.
Facts. During a traffic stop of the vehicle in which the defendant was a passenger, Marlborough police Officer Robert Bonino detected the odor of burnt marijuana emanating from the driver and observed a marijuana 'roach' in plain view in the vehicle's ashtray, equidistant between the driver and the defendant. Shining his flashlight into the car, Officer Bonino also observed a 'wooden billy club' on the floor behind the driver's seat. The defendant was ordered out of the vehicle, but fled before a frisk could be completed. Officer Bonino pursued the defendant on foot, eventually apprehending and arresting him. A search of the defendant revealed two packages of what appeared to be crack cocaine.
The judge found that the defendant fled when the officer was 'about to frisk' him. The defendant argues that this finding is clearly erroneous, and that the flight did not occur until after the frisk was underway. Because we conclude that the frisk was lawful, this factual dispute is immaterial.
Discussion. The defendant does not challenge the validity of the traffic stop, during which the police observed the marijuana roach in plain view. At the time, possession of even a small amount of marijuana was a criminal offense, and as the defendant acknowledged at oral argument, the police had probable cause to search the vehicle. Accordingly, the police had a valid basis for ordering the defendant to exit the vehicle, regardless of their degree of suspicion that he was personally involved in a crime. Commonwealth v. Cruz, 459 Mass. 459, 467 (2011). The question is whether they then had a valid basis to do a patfrisk.
In analyzing the reasonableness of the officer's behavior, we are mindful that 'there is danger for a police officer inherent in any auto stop,' Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999), quoting from Commonwealth v. Williams, 46 Mass. App. Ct. 181, 183 (1999), and that 'law enforcement officials may have little time in which to avert 'the sometimes lethal dangers of routine traffic stops." Commonwealth v. Stampley, 437 Mass. 323, 326 (2002), quoting from Commonwealth v. Gonsalves, supra at 671 (Fried, J., dissenting). For this reason, 'it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns.' Commonwealth v. Gonsalves, supra at 664. A police officer may conduct a protective frisk of a vehicle's passenger during a traffic stop if the circumstances, 'viewed objectively, would give rise to a heightened awareness of danger on the part of the [officer].' Commonwealth v. Stampley, supra. '[T]he officer need not point to specific facts that the occupants are armed and dangerous.' Ibid., quoting from Commonwealth v. Gonsalves, supra at 665. The circumstances of this case, including the presence of a weapon within easy reach of the defendant and the police observation of illicit activity inside of the car, were sufficient to 'warrant an objectively reasonable officer in securing the scene,' Commonwealth v. Stampley, supra, quoting from Commonwealth v. Gonsalves, supra, by removing the defendant from the car and frisking him for weapons. Because the frisk of the defendant was constitutionally permissible, the motion to suppress the evidence obtained as a result of the frisk was properly denied.
The defendant's reliance on Commonwealth v. Knowles, 451 Mass. 91 (2008), is misplaced. That case did not even involve an automobile stop.
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Judgments on indictments charging resisting arrest and assault and battery upon a public employee affirmed.
The remaining judgments are reversed, and the findings are set aside.
Order denying motion to suppress affirmed.
By the Court (Mills, Katzmann, & Milkey, JJ.),