Opinion
No. 10–P–1846.
2012-10-9
COMMONWEALTH v. William CASTRO.
By the Court (KAFKER, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a 2004 jury trial, the defendant was convicted of trafficking in cocaine, a quantity in excess of 200 grams, and possession of heroin with intent to distribute. In 2006, his convictions were affirmed by this court. The defendant then filed a pro se motion for a new trial, alleging ineffective assistance of counsel; the trial judge denied the motion and that order was affirmed by this court in 2008. The defendant now appeals the denial of his second motion for new trial, arguing for the first time that the admission in evidence of drug certificates without testimony from the analyst who prepared them was a violation of his Sixth Amendment right under the United States Constitution to confrontation, as explained in Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) ( Melendez–Diaz I ).
Commonwealth v. Castro, 65 Mass.App.Ct. 1116 (2006) (we note that further appellate review was denied).
Commonwealth v. Castro, 73 Mass.App.Ct. 1107 (2008) (we note that further appellate review was denied).
At oral argument, counsel represented that the defendant did object at trial to the admission of the drug certificates, citing Crawford v. Washington, 541 U.S. 36 (2004); the defendant did not pursue that argument at his first motion for a new trial or during either of his first two appeals. The defendant now argues that his second motion for a new trial should have been allowed because the Sixth Amendment analysis in Crawford v. Washington, supra, prohibited the admission of drug certificates without testimony by the performing analyst; he also contends that Melendez–Diaz I did not create a “new rule” and therefore should be applied retroactively. The Commonwealth responds that the defendant's convictions became final in 2006; that this appeal constitutes a collateral review; and that Melendez–Diaz I should not be applied retroactively. Both briefs were filed before the Supreme Judicial Court's decision in Commonwealth v. Melendez–Diaz, 460 Mass. 238, 239–240 (2011) ( Melendez–Diaz II ).
In Melendez–Diaz II, the court decided that the rule announced in Melendez–Diaz I as it relates to the inadmissibility of drug certificates without the analyst's testimony “is a ‘new’ rule within the meaning of Teague v. Lane, 489 U.S. 288 (1989) ( Teague ).” Melendez–Diaz II, supra at 240. Notably, “[u]nder the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.” Id. at 243, quoting from Whorton v. Bockting, 549 U.S. 406, 416 (2007). Since this appeal is a collateral review of the defendant's convictions, the Melendez–Diaz I decision “is not available to the defendant in this appeal from the denial of his motion for a new trial.” Melendez–Diaz II, supra at 240.
The motion judge, in careful findings, anticipated the court's ruling in Melendez–Diaz II. He correctly denied the defendant's second motion for a new trial and we affirm.
Order entered September 29, 2010, denying motion for new trial affirmed.