Opinion
No. 11–P–1505.
2012-05-29
COMMONWEALTH v. Osvaldo ALVARADO.
By the Court (TRAINOR, SMITH SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 30, 2004, a Superior Court jury convicted the defendant, Osvaldo Alvarado, of distribution of cocaine and distribution of cocaine within a school zone. The defendant then pleaded guilty to the second offense portion of the distribution of cocaine indictment. At the trial, a drug certificate was introduced in evidence, but the analyst who prepared the certificate did not testify. On April 1, 2004, the defendant filed a notice of appeal. On October 24, 2006, this court affirmed the judgments in a decision pursuant to our rule 1:28. Commonwealth v. Alvarado, 67 Mass.App.Ct. 1111 (2006). The Supreme Judicial Court denied further appellate review on November 30, 2006. Commonwealth v. Alvarado, 447 Mass. 1113 (2006).
On December 13, 2010, the defendant moved for a new trial, claiming that the admission of the drug certificate without the opportunity to cross-examine the analyst violated confrontation rights pursuant to the Massachusetts and Federal Constitutions. The defendant cited Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009) ( Melendez–Diaz I ). In that decision, the United States Supreme Court concluded that drug certificates are testimonial, subject to the requirements of the confrontation clause, and are inadmissible in a criminal trial without the opportunity for cross-examination of the analyst who prepared them. The defendant argued in his new trial motion that Melendez–Diaz I was not a new rule and that it applied retroactively on collateral review of convictions that were final before the decision.
The motion judge delayed his decision until the Supreme Judicial Court ruled on a case involving the same issue, namely, whether Melendez–Diaz I is a new rule. On July 26, 2011, the court ruled that Melendez–Diaz I announced a new constitutional rule of criminal law, such that it did not apply retroactively on collateral review of convictions that were final before the new rule was announced. Commonwealth v. Melendez–Diaz, 460 Mass. 238, 242–248 (2011) ( Melendez–Diaz II ). The motion judge denied the defendant's motion for a new trial on the basis of Melendez–Diaz II.
We agree with the motion judge that Melendez–Diaz II applies to this matter, and accordingly affirm.
Order denying motion for new trial affirmed.