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Commonwealth v. Figueroa

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 2, 2012
10-P-621 (Mass. Apr. 2, 2012)

Opinion

10-P-621

04-02-2012

COMMONWEALTH v. ANDRES FIGUEROA.


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

This is a consolidated appeal from the defendant's convictions of trafficking in cocaine and heroin, and the denial of his new trial motion. G. L. c. 94C, § 32E(b)(2), and § 32E(c)(2). The Commonwealth concedes that the admission of the two certificates of analysis without the analyst's testimony was error. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). However, the Commonwealth contends there was ample admissible circumstantial evidence in the case, apart from the drug certificates, to establish the identity of the substances.

For error arising out of the admission of a drug certificates of analysis, a reviewing court must be satisfied 'beyond a reasonable doubt that the certificate had 'little or no effect on the verdicts." Commonwealth v. Nelson, 460 Mass. 564, 573-574 (2011), quoting from Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010). The Commonwealth's burden is to demonstrate its other properly admitted proof of the defendant's guilt for each of the crimes was 'overwhelming,' in the sense that such proof was so powerful as to nullify any effect the improperly admitted certificate may have had on the trier of fact. Commonwealth v. Vasquez, supra at 362, quoting from Commonwealth v. Tyree, 455 Mass. 676, 704 n.44 (2010).

Based on the record, we conclude that the defendant's conviction for trafficking in cocaine shall stand because the Commonwealth has shown that its other properly admissible evidence rendered the admission of the cocaine certificate of analysis harmless beyond a reasonable doubt.

As for the defendant's conviction for trafficking heroin, the Commonwealth has not shown that the error of admitting the laboratory certificate of analysis of heroin was harmless beyond a reasonable doubt. Therefore that conviction is reversed.

Background. Based on the Commonwealth's trial evidence, the jury would have been warranted in finding the following. The police conducted a search under a warrant of the apartment where the defendant was living with his companion, Crystal Connors. The police seized approximately ninety-five grams of cocaine and forty-nine grams of heroin; documents containing various identities used by the defendant; $2,000 in cash; five cellular phones; a digital scale; a grinder; and plastic bags. The drugs were packaged in numerous small 'twists.'

a. Cocaine. At trial, Connors testified in the Commonwealth's case-in-chief. She testified unequivocally that the white powdery substance the police had seized from the bedroom was cocaine. The cocaine was stored inside the cabinet of a television stand (or bureau) near the bed that she shared with the defendant.

Connors had been charged as a codefendant on offenses parallel to those lodged against the defendant. She testified pursuant to a cooperation agreement.

Connors had a longstanding personal familiarity with cocaine use. Connors testified that she was introduced to the defendant by a friend, in or about 2003, at a time in her life when she was addicted to cocaine. Connors had on more than one occasion previously purchased cocaine from the defendant, in amounts of one to two grams, until she began an exclusive relationship with him in December of 2003. She typically spent four to five nights per week with the defendant at the apartment. Prior to and during this same time period of time -- December, 2003, to March, 2004 -- she was addicted to cocaine. The defendant provided her with cocaine which she used during the time she was living with him. A witness's 'familiarity with the properties of [a specific drug] through past experience [of consuming it] coupled with [her] 'present observation' of the substance at issue is sufficient to establish its identity.' Commonwealth v. MacDonald, 459 Mass. 148, 153 (2011), quoting from Commonwealth v. Cantres, 405 Mass. 238, 246-247 (1989).

In addition, during the course of their live-in relationship, Connors saw a supplier deliver drugs on a weekly basis to the defendant at the apartment. She testified the defendant received heroin and cocaine in a 'packaged' form which, in turn, the defendant then distributed to buyers, in the general vicinity of Fitchburg.

Connors observed the defendant distribute or sell small 'baggies' containing cocaine to buyers. She accompanied him when he engaged in these transactions. Transactions often occurred 'twice a week' for the three-month period in question. She explained how the drug sales were arranged by the defendant and carried out by him (with her help). During the trial, Connors positively identified one of the two glassine bags (shown to her by the prosecutor) as containing cocaine (in powder form).

b. Heroin. Connors had markedly less past experience with heroin than she had with cocaine. She testified she had previously 'sniffed' heroin on two occasions. Her experience was (in her words) 'disgusting' and caused her to vomit for three hours afterward. The timing of these two heroin sniffs was not clear from the trial record, nor was it clear that her two sniffing experiments occurred when she was living with the defendant.

Connors testified that she believed the second drug substance was heroin, which was delivered to the defendant in original packaging, and later broken down by him and repackaged in small clear plastic bags for distribution. However, other than such a belief concerning what the substance was, she did not have firsthand knowledge or experience so as to be able to identify this second substance as heroin. In short, Connors's testimony concerning this second substance was not sufficient to render admission of the heroin certificate of analysis harmless beyond a reasonable doubt.

Trooper Mark Blanchard, a thirteen-year veteran of the State police, who had specialized training and extensive experience in the drug investigations, appeared both as a percipient and an expert witness for the Commonwealth. Trooper Blanchard identified the laboratory certificates of analysis for the cocaine and heroin. But he did not offer an independent opinion concerning what the substances were, not does it appear that he would have had a foundation to do so. Rather, Trooper Blanchard's expertise was directed to describing the local street trade of cocaine and heroin, the search of the bedroom in the apartment, the discovery of the subject controlled substances, and the resulting arrests of the defendant and Connors. There was not evidence of any field tests performed on the alleged heroin substance. Compare Commonwealth v. Connolly, 454 Mass. 808, 831 (2009).

Conclusion. There was strong and powerful circumstantial evidence properly admitted at trial to prove beyond a reasonable doubt that the white powdery substance seized from the defendant's bedroom was in fact cocaine. In particular, Connors's testimony was based on her personal use and knowledge of cocaine, her feelings about the defendant giving her cocaine to ingest, and her contemporary observations of the defendant receiving, storing, and packaging the cocaine for resale. This testimony, combined with Trooper Blanchard's testimony concerning the search and the customary packaging of cocaine for the street trade, allows us to fairly conclude that the Commonwealth's properly admitted circumstantial evidence as to the identity of the substance was so overwhelming as to nullify any effect that the inadmissible certificate might have had on the trier of fact. Commonwealth v. Tyree, 455 Mass. at 704 n.44.

The principal theory of the defense was that the defendant neither possessed nor exercised dominion over the drugs. The drugs, defense counsel argued to the jury, were the property of another adult male who lived in the apartment and later was arrested.
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In marked contrast to all of the evidence proving the white substance to be cocaine, the Commonwealth's evidentiary proof of the second substance as heroin was limited, and was neither so overwhelming nor powerful as to render harmless the error in the heroin certificate of analysis. Connors had used heroin twice and admittedly was not addicted to it. Her personal experience with heroin was plainly thin, compared to her wide and extensive habit-induced usage of cocaine powder. The police expert's testimony respecting both the weight and composition of the heroin, rested entirely on the drug certificate and that the seized substance (other than the cocaine) was heroin packaged for resale.

The judgment on the count charging trafficking in cocaine is affirmed. So much of the order denying the motion for a new trial on that count is also affirmed. So much of the order denying the motion for a new trial on the count charging trafficking in heroin is reversed. The judgment on that count is reversed, the verdict is set aside, and the case is remanded to the Superior Court for further proceedings on that count alone.

So ordered.

By the Court (Berry, Trainor & Hanlon, JJ.),


Summaries of

Commonwealth v. Figueroa

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 2, 2012
10-P-621 (Mass. Apr. 2, 2012)
Case details for

Commonwealth v. Figueroa

Case Details

Full title:COMMONWEALTH v. ANDRES FIGUEROA.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 2, 2012

Citations

10-P-621 (Mass. Apr. 2, 2012)