Opinion
09-P-1970
09-14-2011
COMMONWEALTH v. JAY DAROSA.
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
In a jury-waived trial on February 6, 2009, the defendant, Jay Darosa, was convicted of (1) trafficking in cocaine weighing 200 grams or more; (2) negligent operation of a motor vehicle ; and (3) distribution of cocaine. We reverse.
The defendant has not appealed from this conviction, and it is not before us.
The defendant also was indicted on two charges of school zone violations, but his oral motion for required findings of not guilty was allowed.
The charges against the defendant arose from a sale of powdered cocaine to an undercover police officer in Brockton on February 5, 2003, and a high-speed chase by the police about one month later when the defendant was observed throwing a woman's pocketbook from his car; the pocketbook was found to contain a substantial amount of crack cocaine.
The defendant raises a single issue in this appeal, arguing that the drug certificates were admitted in evidence over the defendant's objection and that there was no other evidence of the substance's identity or weight. See Crawford v. Washington, 541 U.S. 36 (2004) (confrontation clause guarantees defendant right to confront those who bear testimony against him), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (confrontation rights violated by admission of drug certificates without defendant having opportunity to cross-examine laboratory analyst).
Discussion. There is no dispute that the defendant preserved the issue and that we review to determine whether the error was harmless beyond a reasonable doubt. Commonwealth v. Rivera, 76 Mass. App. Ct. 67, 69 (2009). Following a colloquy on the defendant's waiver of a jury trial, and before any witness testimony, the prosecutor informed the judge, without objection:
'We do have a stipulation with respect to the weight and that 227 grams of cocaine would be -- it is -- of cocaine would be consistent with an intent to distribute. . . . And thereby agreeing not to produce independent expert evidence by way of a narcotics investigator.'
See Mass.R.Crim.P. 11(a)(1)(C)(iv), as appearing in 442 Mass. 1509 (2004). For cases such as this one, initiated before September 7, 2004, see Mass.R.Crim.P. 11(a)(1)(D)(v), 378 Mass. 862 (1979).
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Defense counsel soon stated he 'would ask the court to take a running objection on the evidence -- the exhibits that are going to be entered here . . . on each and every item.' Also, in his opening statement, defense counsel asked the judge to find the defendant guilty of distributing cocaine to the undercover officer, and to find the defendant guilty of negligent operation of a motor vehicle, as part of his trial strategy.
During the trial, the Commonwealth on two occasions introduced drug analysis certificates. Defense counsel objected in the first instance raising his earlier running objection, and more particularly objecting to the certificate on Crawford grounds. The judge noted that the defendant's 'rights are reserved.' In the second instance, counsel made the 'same objection' to the drugs and to the drug certificate. The judge stated, 'Fine.' There was no further reference to the certificates or to the stipulation during the trial or in closing arguments, with one exception. During the prosecutor's closing argument, suggesting the cocaine in the pocketbook thrown from the defendant's car was not for personal use, but for distribution, the judge stated, '[B]ut there's a stipulation that it's consistent with intent to distribute, right?'
Appellate proceedings were stayed on the Commonwealth's motion to correct the record. The Commonwealth sought to show that a portion of the stipulation was missing in the transcript, and that the missing portion showed that the stipulation included the nature of the substance and its weight. In opposition, defense counsel stated he did not stipulate to the elements of weight or the identity of the substance as cocaine. The trial judge concluded that there was 'no indication in [her] notes of any stipulation as to the nature of the substance or of the weight of the substance except as it relates to intent,' and ruled the record should reflect that the stipulation was that 'possession of cocaine weighing 227 grams is consistent with intent to distribute rather than personal use.' A plain reading of the stipulation supports the judge's interpretation.
The Commonwealth argues that the testimony of experienced police officers provided proof that the substances were cocaine. The defendant counters that there was no independent evidence beyond the usual inspection and police characterization that the substances were cocaine. Considering the judge's interpretation of the stipulation, that it went only to whether the amount of 227 grams was sufficient to prove intent to distribute, it is apparent that the remaining elements, weight and identity, had to be proven to the judge. Here, where the testimony of the officers about the nature of the substance was merely conclusory and there was no testimony regarding weight, we conclude that the error was not harmless beyond a reasonable doubt. See Commonwealth v. DePina, 75 Mass. App. Ct. 842, 852-853 (2009); Commonwealth v. Pimental, 76 Mass. App. Ct. 236, 239-240 (2010).
Judgments reversed.
Findings set aside.
By the Court (Rapoza, C.J., Cypher & Hanlon, JJ.),
Clerk