Opinion
11-P-210
05-04-2012
COMMONWEALTH v. FRANTZ MOREL.
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
The defendant appeals from his convictions of possession of cocaine with intent to distribute and intent to distribute cocaine in a school zone. G. L. c. 94C, §§ 32A(d) and 32J. We affirm.
The defendant's conviction for possession of marijuana was placed on file with his consent.
On appeal, the defendant argues that (1) the jury instructions impermissibly referred to drug certificates entered in evidence as 'prima facie evidence', (2) the trial judge erred in denying his pretrial motion to suppress, (3) the gaps in the chain of custody of the drugs were so significant that they made the evidence inadmissible, (4) the Commonwealth's police expert gave improper opinion testimony, and (5) the prosecutor's closing argument impermissibly referenced facts not in evidence. Background. Lieutenant Slattery of the Framingham Police Department had received tips from three confidential informants that Cheryl Messina was dealing drugs from behind her Smith House apartment complex residence and that her supplier was a black male in his thirties. One of the informants provided the supplier's license plate number. Following the informants' tips, Slattery began monitoring the rear parking lot of the Smith House complex. Slattery also had knowledge of Messina's drug use from prior dealings with her.
On October 1, 2007, Slattery was sitting in his unmarked police cruiser near the Smith House complex when he observed the defendant's vehicle pull into the parking lot, where it remained for several minutes, after which Messina emerged from the building. Slattery observed Messina look around the parking lot before entering the vehicle. Slattery drove from his surveillance position, entered the parking lot, and parked behind the defendant, leaving approximately seventy-five to eighty feet between the two vehicles. As he approached the defendant's vehicle on foot, Slattery noticed the defendant's hands move to and from the center console. Slattery also observed the defendant putting a wad of cash under his buttocks, and observed another quantity of cash on the defendant's lap. Slattery asked the defendant and Messina what they were doing, and the defendant said they were just talking.
Slattery called for backup, which arrived a few minutes later. At this point, Slattery asked Messina to step out of the vehicle and speak with him. Messina did so, and during the conversation voluntarily conveyed that she and the defendant were conducting a narcotics transaction, along with specifics of where the defendant kept the narcotics. Slattery then ordered the defendant to exit the car and read him his Miranda rights. The defendant signed a consent form to have his vehicle searched, including the closed compartments. Slattery discovered marijuana and crack cocaine in the vehicle during his search.
Discussion. 1. Drug certificate as prima facie evidence. The defendant argues that the jury instructions pertaining to the drug certificates were erroneous because the trial judge referred to the certificates as 'prima facie evidence.' We disagree.
General Laws c. 22C, 39, states: 'A certificate by a chemist of the department [of State police] of the result of an analysis made by him of a drug furnished [to] him by a member of the [S]tate police, signed and sworn to by such chemist, shall be prima facie evidence of the composition, quality and [,] when appropriate, net weight of any mixture containing such drug.' Provisions such as 39 that label certain forms of evidence as prima facie evidence 'are merely a matter of administrative convenience that eliminate uncertainty as to what will constitute sufficient proof.' Commonwealth v. Maloney, 447 Mass. 577, 582 (2006). 'In criminal cases, when evidence 'A' is prima facie evidence of fact 'B,' then, in the absence of competing evidence, the fact finder is permitted but not required to find 'B' beyond a reasonable doubt.' Id. at 581, citing to Commonwealth v. Lykus, 406 Mass. 135, 144 (1989). Accordingly, 'the Legislature's decision that 'A' is prima facie evidence of 'B' does not impermissibly lower the Commonwealth's burden of proof, at least where 'A' is enough to establish 'B' beyond a reasonable doubt.' Id. at 582. Section 39 simply informs fact-finders of the probative value they are permitted to assign to drug certificates properly admitted into evidence.
In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), the United State Supreme Court held that the admission of drug certificates created by laboratory analysts required that those analysts be available and subject to cross-examination pursuant to the holding in Crawford v. Washington, 541 U.S. 36, 54 (2004), and the Confrontation Clause of the United States Constitution. Melendez-Diaz did nothing to overrule or otherwise alter the precepts of G. L. c. 22C, 39, and the law remains in effect so long as the requirements of the Confrontation Clause are satisfied. In this case the requirements were met as the analysts who created the certificates in question all testified. Therefore, the court was free to return to the Legislature's declaration that drug certificates are to be considered prima facie evidence.
The fact that a party offers more than just prima facie evidence, e.g., the testimony of a live witness to the same fact, does not transform the prima facie evidence into something less probative. For example, the Commonwealth may establish that a defendant is guilty of a second operating under the influence (OUI) offense by introducing a certified prior conviction, and may or may not choose to buttress that fact with live witness testimony. See Commonwealth v. Bowden, 447 Mass. 593, 601 (2006). If a witness does testify, the prima facie nature of the prior OUI evidence is unchanged. Similarly, although the admission of drug certificates in evidence must now be accompanied by the opportunity for opposing counsel to examine the author of those certificates, the presence or absence of the actual examination does not alter the inherent prima facie character of the certificates. There was no error in the judge's instruction.
The Legislature has provided that the State record of the prior OUI conviction is prima facie evidence in such a case. G. L. c. 90, § 24(4).
2. Motion to suppress. As an initial matter, we conclude that there was no seizure of the defendant prior to the officer's exit order. See Commonwealth v. Thomas, 429 Mass. 403, 406 (1999); Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007); Commonwealth v. Franklin, 456 Mass. 818, 820-821 (2010).
We further conclude that the exit order was justified because Lieutenant Slattery had acquired sufficient probable cause to believe that the defendant was engaged in a cocaine transaction inside the vehicle based on (1) the information provided by the three confidential informants, see Commonwealth v. O'Day, 440 Mass. 296, 302 (2003); (2) Slattery's knowledge of Messina's prior involvement with drug offenses, Commonwealth v. Kennedy, 426 Mass. 703, 709 (1998); (3) Slattery's observations during the encounter prior to the exit order, see Commonwealth v. Peters, 48 Mass. App. Ct. 15, 17-18 (1999), Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001), and Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 616 (2011); and (4) Ms. Messina's admission, against her penal interest, that she was engaged at the time in a cocaine transaction with the defendant see Commonwealth v. Nowells, 390 Mass. 621, 626 (1983). The motion to suppress was properly denied.
3. Chain of custody. We turn next to the defendant's claim that the cocaine and marijuana evidence should have been excluded based on defects in the chain of custody. 'Alleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility.' See Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992). There is no error in admitting evidence despite a weakness in the chain of custody where counsel is allowed to argue that weakness to the jury. Ibid. Here, we conclude that the trial judge was within his discretion to admit the drugs, and the record indicates that defense counsel took advantage of its opportunity to challenge the strength of the narcotics evidence. There was no error in the admission of the cocaine and marijuana.
4. Expert Testimony. The defendant next claims that portions of the testimony of Sergeant Brown, the Commonwealth's narcotics expert, impermissibly included opinion testimony as to the defendant's guilt. Brown's testimony that 'if you have a hide in your vehicle, you are in the business of distributing drugs' was indeed improper. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 161 (2010). In this case the trial judge sustained defense counsel's contemporaneous objection to the testimony. Although the added safeguard of a contemporaneous specific curative instruction would have been preferable, the general curative instruction given by the judge before deliberations that '[t]estimony that has been excluded or stricken . . . is not evidence,' combined with the other evidence of guilt, assured that the stricken opinion testimony did not affect the outcome. See Commonwealth v. Woods, 36 Mass. App. Ct. 950, 951-952 (1994) (admission of expert opinion that the defendant was selling crack cocaine' and 'was involved in a drug transaction,' was not prejudicial in light of other evidence of guilt); Commonwealth v. Delqado, 51 Mass. App. Ct. 661, 664 (2001).
5. Closing Argument. Lastly, the defendant contends that the prosecutor's closing argument exceeded the permissible bounds of advocacy because the prosecutor (1) drew the jury's attention to the towns listed on the newspaper in which the drugs were wrapped, which included the defendant's hometown of Fitchburg, and (2) referenced the drug 'hide' in the defendant's vehicle. Because the defendant did not object to the prosecutor's closing argument, we 'examine whether anything said by the prosecutor was improper and, if so, whether [it] created a substantial [risk] of a miscarriage of justice.' Commonwealth v. Frank, 433 Mass. 185, 195 (2001).
The prosecutor's reference to the 'hide' was properly based on unstricken admissible testimony by Sergeant Brown, and was therefore permissible. Although the fact that the newspaper was from Fitchburg was not mentioned at trial, the newspaper itself was entered in evidence without objection, and was wrapped around the 3.13 grams of crack cocaine in the defendant's vehicle. It was within the permissible bounds of advocacy for the prosecutor to draw the jury's attention to the towns listed on the newspaper. See Commonwealth v. Smith, 456 Mass. 476, 487 (2010) (a prosecutor may argue any inferences that may be fairly drawn from the evidence).
Even were we to find that the statements were improper, they would not rise to the level of a reversible error, because (1) the defendant did not seasonably object, (2) the Commonwealth's reference to the newspaper as being from Fitchburg was limited to a collateral issue and did not go to the heart of the case, (3) the judge provided contemporaneous curative instructions with regard to excluded or stricken testimony and later instructed the jury that arguments are not evidence, and (4) finally and most importantly, under the circumstances the statements could not have made a difference in the jury's conclusions. See Commonwealth v. Taylor, 455 Mass. 372, 383-384 (2009).
Judgments affirmed.
By the Court (Kantrowitz, Trainor & Hanlon, JJ.),