Opinion
No. 11–P–1253.
2013-01-29
COMMONWEALTH v. Shawn HOPPER.
By the Court (GRASSO, FECTEAU, & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial by jury, the defendant, Shawn Hopper, was convicted of trafficking in cocaine between twenty-eight and one hundred grams, in violation of G.L. c. 94C, § 32E( b )(2). In this appeal, he raises three issues: the denial of his pretrial motion to suppress, an alleged fatal variance between the charge in the indictment and the proof offered against him at trial, and the sufficiency of the evidence to support his conviction. For the reasons that follow, we affirm. The essential facts are recounted in connection with each of the three issues raised on appeal.
1. Motion to suppress.
We may infer from the judge's denial of the motion that he credited the testimony of the three police witnesses who were members of the Springfield Police Department. On that basis, he was warranted in concluding that prior to the search of the defendant, a foundation was established to support the conclusion that the confidential informant (CI) was reliable and its information had been gained from firsthand knowledge. See Commonwealth v. O'Day, 440 Mass. 296, 301–302 (2003), and cases cited. In addition, taking a commonsense view of the facts and circumstances known to the police, see Commonwealth v. Donahue, 430 Mass. 710, 712 (2000), by the time the police searched the defendant they had probable cause to believe the defendant, along with Ralph Baughn, were engaged in selling drugs from the Oz nightclub, and, that a few moments before his arrest, the defendant had participated in a drug sale to Glenn Flowers. See Commonwealth v. Santalitz, 413 Mass. 238, 240–41 (1992). 2. Alleged variance. The indictment charged the defendant with trafficking in cocaine in an amount not less than twenty-eight grams. See G.L. c. 94C, § 32E( b )(2). At trial, the prosecutor introduced in evidence three packets of cocaine seized from Flowers, twenty-six packets of cocaine seized from the defendant, and eleven packets of cocaine seized from Baughn, along with the corresponding certificates of analysis. Because the defendant raises the issue of a variance for the first time on appeal, it is untimely. See Commonwealth v. DeVincent, 358 Mass. 592, 596–97 (1971). In any event, this case is not like Commonwealth v. Barbosa, 421 Mass. 547, 550–551 (1995), where the indictment was deemed to be defective because it did not differentiate between two separate instances of criminal conduct that were part of the Commonwealth's presentation to the grand jury, with the result that the defendant could have been found guilty for criminal activity he was not charged with committing.
The judge who conducted the pretrial motion to suppress, and who has since retired, denied the motion without making any findings or rulings. The defendant raises no objection, but argues that even if the evidence presented by the Commonwealth is credited the motion was wrongly decided. In circumstances like this where the judge was not presented with conflicting accounts of the critical events and there were no material conflicts in the testimony of the witnesses, “we presume a judge's order to be supported by the appropriate factual determinations and legal analysis.” See Commonwealth v. Williams, 439 Mass. 678, 686 (2003).
The defendant's argument that his conviction was based on a decision by the jury to attribute to him the possession of the cocaine found both on the person of Baughn and Flowers is based on nothing more than speculation. The case against the defendant was tried by the prosecutor on the theory that the defendant was guilty as charged based on his unlawful possession of the cocaine found on his own person. The closing arguments by counsel are also consistent with this theory. The judge's instructions, to which there was no objection, accurately and completely defined the elements of the offense. See G.L. c. 277, § 35.
3. Sufficiency of the evidence.
The sole issue raised by the defendant on appeal as to the sufficiency of the evidence is that the Commonwealth did not establish that the drugs recovered from the defendant weighed in excess of twenty-eight grams as required by G.L. c. 94C, § 32E(b)(2). See Commonwealth v. Rodriguez, 415 Mass. 447, 453 (1993). In particular, the defendant argues that his due process rights were violated because the Commonwealth relied on an extrapolation process to prove the net weight of the cocaine recovered from the defendant which the defendant alleges for the first time on appeal was not reliable, nor in compliance with the policy of the Department of Health (DPH) laboratory.
The evidence at trial was consistent with the evidence presented during the pretrial motion to suppress, with the addition of testimony by Flowers that he actually bought three twenty-dollar bags of cocaine from the defendant shortly before their arrest on the night in question. The Commonwealth also offered evidence that the twenty dollars in “buy” money used by the CI was found in the possession of Baughn. The defense was that the twenty-six packets of cocaine found on the defendant's person were taken by the defendant from Baughn, who the defendant caught selling drugs to a third party, and that the defendant was on his way to discard them when he was arrested.
The testimony by Detective John Wadlegger that the drugs in question weighed twenty-nine grams is not independent evidence of the weight of the drugs because it appears that his testimony was based on the the certificate of analysis prepared by Rebecca Pontes, the State's chemist. Her testimony is discussed infra.
a. Testimony of Rebecca Pontes. Viewing the evidence in the light most favorable to the Commonwealth, there was testimony from Rebecca Pontes, a chemist employed by the DPH in its laboratory at the University of Massachusetts in Amherst, who explained, without objection, how suspected drug samples are received and processed by her laboratory. Pontes conducted the analysis and prepared the certificates for the three samples of white powder recovered from the defendant (twenty-six packets), Baughn (eleven packets) and Flowers (three packets). She testified that her laboratory follows a “standard protocol for drug analysis” recommended by the Federal Drug Enforcement Administration.
Pontes explained that this protocol allows for the use of a sampling methodology to obtain the net weight (total or gross weight of a package and its contents minus the weight of the package) of a limited number of items that are consistent with each other in appearance within a sample and then to calculate the net weight of the entire sample by a process of extrapolation.
The “standard protocol” is not in evidence.
The witness explained that the laboratory protocol used in this case required that the randomly selected items represent at least ten percent of the total number of items.
The defendant does not dispute the use of a sampling methodology to determine that all of the individually wrapped items in each of the three samples contained cocaine. The evidence indicates that each of the three samples consisted of small plastic “ziplocked” baggies, each consistent with each other in size, shape and color, containing “a white powdery substance,” stamped with a distinctive “Superman logo.” The laboratory analyst in this case tested the contents of six randomly selected individual items from among the twenty-six items seized from the defendant, using both gas chromatography as a screening test, and mass spectrometry as a confirmatory test. The use of such a sampling methodology to conclude that all the individual items in a sample contain a narcotic drug such as cocaine is reliable when, as in this case, the individual items have a distinctive and homogeneous appearance. See Commonwealth v. Shea, 28 Mass.App.Ct. 28, 33 (1989). See generally, Sufficiency of Random Sampling of Drug or Contraband to Establish Jurisdictional Amount for Conviction, 45 A.L.R. 5th 1 (1997 & Supp.2012) (collecting cases).
Pontes testified that she exceeded that requirement by testing
Ten percent of twenty-six items would require that at least three items be selected. In this case, Pontes selected twice that number.
and weighing more than twenty percent of the twenty-six packets recovered from the defendant. She testified that she calculated the average net weight for the six items she selected at random, and, by multiplying by twenty-six, calculated the total net weight of the sample recovered from the defendant to be 29.18 grams. The certificate of analysis for the twenty-six packets of white powder seized from the defendant also gives 29.18 grams as the total net weight of the cocaine, and adds the following: “The identification of the contents of the 26 plastic packets was determined by analysis of a random sample of 6 plastic packets. The net weight of the 26 plastic packets was derived from the average weight of the randomly sampled plastic packets.”
Pontes explained that the items selected for chemical analysis are screened using gas chromatography and then the chemical composition is confirmed using mass spectrometry. These methods have been described as “the near universal laboratory test.” Commonwealth v. Fernandez, 458 Mass. 137, 149 n. 17 (2010) (citation and internal quotation omitted).
b. There was no error in the determination of net weight based on extrapolation. The defendant maintains for the first time on appeal that the “standard protocol” utilized by Pontes, allowing for the use of extrapolation, is not reliable. The specific, written protocol was not offered by the defendant at trial and is not part of the record before us. Challenges to the scientific reliability of data upon which experts such as Pontes customarily rely in formulating their opinions must be made by filing a “pretrial motion stating the grounds for the objections and request[ing] a hearing in accordance with the principles set forth in Canavan's Case, 432 Mass. 304, 309–312 (2000), and Commonwealth v. Lanigan, 419 Mass. 15, 24–27 (1994).” Commonwealth v. Sparks, 433 Mass. 654, 659 (2001).
The defendant has thus waived his right to challenge the reliability of the protocol used for testing the suspected narcotics in this case. See Commonwealth v. Arroyo, 442 Mass. 135, 145 (2004); Commonwealth v. Bly, 448 Mass. 473, 489 (2007).
There is no merit to the defendant's alternative argument that Pontes did not follow the “standard protocol.” Viewed in the light most favorable to the Commonwealth, her testimony at trial was that the protocol provides that the extrapolation method is not used when the aggregate net weight yielded by that method is less than but “close” to the minimum weight required for the particular trafficking offense in question. In such cases, each individual item is separately weighed. In this case, the extrapolated aggregate net weight of the sample was in excess of twenty-eight grams, making it unnecessary to weigh each individual item.
Nevertheless, because Pontes appeared and was subject to cross-examination at trial, the certificate of analysis she prepared and signed under oath was admissible as “prima facie evidence of the composition, quality and the net weight of the narcotic ... analyzed.” G.L. c. 111, § 113. Here, the certificate of analysis, which was admitted without objection, gives the net weight as 29.18 grams. The use of a sampling methodology and extrapolation to derive the aggregate net weight of a sample of narcotic drugs is in widespread use, and was approved in Commonwealth v. Johnson, 410 Mass. 199, 200–201 (1991), and Commonwealth v. Coplin, 34 Mass.App.Ct. 478, 485 (1993).
Under G.L. c. 111, § 13, the inferences that may be drawn from the contents of a properly authenticated certificate of analysis “run [ ] through the case.” Commonwealth v. Shea, 28 Mass.App.Ct. 28, 33 (1989).
See Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) Recommendations, 7–13 (July 7, 2011)(outlining methods of analysis of seized drugs utilizing sampling techniques), at www.swgdrug.org (last visited Nov. 30, 2012).
Judgment affirmed.