Opinion
15-P-191
12-30-2015
COMMONWEALTH v. ROBERT ANGER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the Superior Court of trafficking in cocaine in excess of 200 grams, G. L. c. 94C, § 32E(b)(4). His conviction was affirmed by this court, 70 Mass. App. Ct. 1103 (2007), and his petition for further appellate review was denied by the Supreme Judicial Court, 450 Mass. 1101 (2007). He appeals from the denial of his second motion for a new trial. He has appealed from that ruling asserting two errors related to the testing of the drugs that he was convicted of dealing; we discuss the issues in turn, referring to the undisputed facts as they pertain to our consideration.
The defendant's first motion for a new trial, alleging ineffective assistance of counsel, was denied and no appeal was taken.
Melendez-Diaz rule. Retroactivity. The defendant asserts that the holding of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-311 (2009), should be applied retroactively to his case, notwithstanding that his conviction was final before the date of that decision. As a new rule, the Supreme Court's holding in Melendez-Diaz is not to be applied retroactively. Commonwealth v. Melendez-Diaz, 460 Mass. 238, 242-246 (2011).
The defendant asserts that equitable considerations mandate retroactivity in this instance because his codefendant will receive the benefit of the Supreme Court's invalidation of laboratory certificates introduced without testimony that satisfies the confrontation clause of the United States Constitution. Melendez-Diaz v. Massachusetts, supra. The codefendant fled the jurisdiction after the first day of trial and was convicted in absentia. He was eventually apprehended and incarcerated by Federal authorities. As a consequence his sentencing did not occur, unlike that of the defendant, until after the Supreme Court's decision was issued. The defendant characterizes this record as presenting two similarly situated individuals receiving impermissibly disparate treatment. We do not agree.
Every enunciation of a new rule will, perforce, apply to some defendants and not to others purely as a result of timing. The perception of inequity pressed by the defendant is no greater here, and perhaps less, than the potential difference in result that may occur when two individuals are sentenced on two successive days. The Supreme Judicial Court has recognized that there is "no fundamental injustice or unfairness in applying Melendez-Diaz as a new rule with prospective effect." Commonwealth v. Melendez-Diaz, supra at 248. The codefendant here has committed the additional crime, consequently is subject to an additional conviction of fleeing the jurisdiction while defaulting on the drug charges at issue. The defendant's argument that his codefendant received an inequitable benefit from this activity is unpersuasive. The defendant himself has not been penalized.
Newly discovered evidence. The defendant asserts that the 2014 report of the Commonwealth's Inspector General detailing irregularities at the William A. Hinton State Laboratory constitutes newly discovered evidence entitling him to a new trial. Specifically he complains of the use of "extrapolation" to measure the weight of the cocaine in his case. The drugs in this case were analyzed in 2004 in Amherst, not at the Hinton Laboratory located in Jamaica Plain. The misconduct at the Hinton Lab, i.e., the improper use of some drug samples to infer the weight or composition of other untested samples in a manner contrary to law, was not found to have occurred at Amherst. The defendant argues, however, that there is an inference of misconduct affecting the specific drugs seized from him because there is a nexus between the two laboratories, i.e., "[b]oth facilities were run by the Massachusetts Department of Public Health." We decline to accept this strained assertion.
The motion judge found in another case that the Massachusetts State Police audit of the Amherst laboratory "did not reveal any unreliable testing." Commonwealth v. Cotto, 471 Mass. 97, 103 n.11 (2015).
Even were we to consider the relationship between these two separate laboratories sufficiently close to characterize the activity in Hinton as newly discovered evidence in this case, it would still not avail the defendant. On this record it does not appear that the jury would have reached a different conclusion. See Commonwealth v. Figueroa, 422 Mass. 72, 79 (1996). The evidence was that the police recovered three plastic bags that the defendant had removed from the trunk of a car belonging to the codefendant. Each bag was tested and analyzed separately. The certificates of analysis, specifying the weight and composition of cocaine found in each bag, were introduced at trial. The total weights of 13.91 grams, 104.97 grams, and 94.78 grams exceeded 200 grams in the aggregate. The defendant could not sustain his burden to demonstrate that the weight of the three bags was less than 200 grams even if an extrapolation technique had been used. See Commonwealth v. Comita, 441 Mass. 86, 93 (2004).
Order denying second motion for new trial affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 30, 2015.