Opinion
10-P-725
02-22-2012
COMMONWEALTH v. CALVIN HODGE.
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
Following a jury trial, the defendant was convicted of possession of heroin with intent to distribute, subsequent offense; possession of cocaine with intent to distribute, subsequent offense; and an accompanying school zone violation. See G. L. c. 94C, §§ 32, 32A, and 32J. On appeal, the defendant argues (1) that the introduction of certificates of drug analysis at trial was a constitutional confrontation clause error that was not harmless beyond a reasonable doubt; and (2) that there was insufficient evidence at trial to support the convictions. We agree as to the confrontation clause error, but find that there was sufficient evidence to support the convictions. Accordingly, a new trial may be held.
The defendant waived a jury trial on the subsequent offense portions of the possession with intent to distribute charges and was found guilty.
Factual background. In December, 2006, officers from the Framingham police department were investigating the apartment building at 10 Main Street as a location for drug activity. Detective Matthew Gutwill obtained a warrant to search apartment 307, which was rented by one Fred Kintchen. During the execution of the warrant, the police found a large metal Sentry safe in Kintchen's bedroom closet, but not the keys to unlock it.
The police forced open the safe and found that it contained, among other items, glass vials with caps, three digital scales, $6,700 in cash, plastic bags, 113 bags of heroin marked with 'Santa Clause' and 'socks,' forty-three bags of cocaine, jewelry, and wax packaging. Also found in the safe was an identification card from Gold's Gym bearing the defendant's name and signature. In other areas of the apartment, the police found a box containing four bags of 'crack' cocaine and five packages of heroin, cell phones, rubber gloves, cocaine residue and powder on the cutting board in the kitchen, and a spoon that appeared to have had powder on it.
During the search, the defendant, who was observed exiting the apartment complex two or three days prior, arrived at the apartment complex. The defendant was arrested, and in his possession the police found a cell phone, $321 in cash, and a set of keys. The police later determined that one of the keys opened the safe found in the apartment bedroom closet, while the other two keys opened the exterior door of the apartment complex and the door to apartment 307, respectively.
Discussion. 1. Certificates of drug analysis. At trial, drug certificates of analysis from the State police crime lab, which confirmed that the substances found during the search were heroin and cocaine, were admitted into evidence. Pursuant to the United States Supreme Court's ruling in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), decided after the defendant's trial, the Commonwealth concedes that the admission of the certificates was error, but maintains that it was harmless beyond a reasonable doubt. See Commonwealth v. Vasquez, 456 Mass. 350, 355-360 (2010). '[T]o establish harmlessness beyond a reasonable doubt, the Commonwealth must show that other properly admitted evidence of guilt is overwhelming, in the sense that it is so powerful as to nullify any effect that the [drug certificates] might have had on the fact finder or the findings.' Id. at 362 (internal quotations omitted). In other words, to affirm the defendant's convictions, we must be 'satisfied, beyond a reasonable doubt, that the erroneously admitted certificates of analysis had little or no effect on the verdicts.' Ibid.
Our standard of review is the same, regardless of whether defense counsel objected to the admission of the drug certificates at trial. See Vasquez, 456 Mass. at 355-360.
Beyond the drug certificates, the only direct evidence concerning the identity of the seized substances came from Detective Gutwill and Detective Kevin Slattery, both of whom testified that, based on their appearances, they believed the substances to be heroin and cocaine. We are, therefore, unconvinced that the drug certificates had little or no effect on the jury or its findings, as, 'it would be a rare case in which a witness's statement that a particular substance looked like a controlled substance would alone be sufficient to support a conviction.' Vasquez, 456 Mass. at 365, quoting from Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). While circumstantial evidence, such as the packaging of the substance and the presence of items considered tools of the drug trade, are relevant to the inquiry, '[t]his is not a case where the facts independent of the drug certificates overwhelmingly prove the nature of the substances' seized during the search. Id. at 367. For these reasons, we conclude that the erroneous admission of the drug certificates was not harmless beyond a reasonable doubt. 2. Sufficiency of the evidence. The defendant also argues that there was insufficient evidence to support the convictions for possession of cocaine and heroine with intent to distribute. We review such challenges under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Moreover, we include improperly admitted evidence in our analysis. Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 235 (2011).
There was also evidence that Detective Gutwill conducted a field test on the residue found on the cutting board, which yielded a positive finding of cocaine; however, no field test was performed on the seized substances that formed the bases of the indictments. Compare Commonwealth v. Connolly, 454 Mass. 808, 831 (2009) (field test performed on substances purchased in multiple controlled buys and on substance found in minivan). Therefore, we need not further address the matter.
As the United States Supreme Court held in Lockhart v. Nelson, 488 U.S. 33 (1988), 'a reversal based on such ordinary 'trial errors' as the 'incorrect receipt or rejection of evidence' . . . 'implies nothing with respect to the guilt or innocence of the defendant,' but is simply 'a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect." Id. at 40, quoting from Burks v. United States, 437 U.S. 1, 14-16 (1978).
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Applying these principles, we conclude that there was sufficient evidence to support the convictions. As outlined above, the jury could have found that during the search of an apartment suspected of drug activity, the defendant, after being seen exiting the location two or three days prior, arrived on the scene with keys to both the apartment being searched and the safe therein, which contained cocaine, heroin, multiple instruments of the drug trade, and a gym membership card with the defendant's name and signature on it. The evidence of guilt was supported by the testifying officers' training and experience in narcotics related crimes. This evidence was sufficient for a reasonable jury to find that the defendant constructively possessed cocaine and heroin with an intent to distribute.
Conclusion. Accordingly, because of the evidentiary Melendez-Diaz error, the judgments must be reversed. The defendant may be retried. See ibid.
Judgments reversed.
Verdicts and findings set aside.
By the Court (Berry, Trainor & Hanlon, JJ.),