Opinion
11-P-43
11-15-2011
COMMONWEALTH v. SAMUEL SANTANA (and a companion case [FN1]).
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 defendants appeal from the denial of their separate motions for a new trial. Each defendant contends that, pursuant to Crawford v. Washington, 541 U.S. 36, 57-61 (2004), and as further explicated in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the drug certificate of analysis that was admitted at trial was improper and the motion for a new trial must thereby be granted. As this issue is controlled by the recent case of Commonwealth v. Melendez-Diaz, 460 Mass. 238 (2011), we affirm the ruling of the motion judge.
Hereinafter Melendez-Diaz I.
Hereinafter Melendez-Diaz II.
The motion judge's decision can be affirmed on grounds other than those articulated in his memorandum of decision. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) ('An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings').
On February 13, 2004, a jury in Superior Court convicted both defendants of trafficking in cocaine with a net weight of 200 grams or more after a joint trial. Santana was also convicted of assault and battery on a police officer. On November 30, 2006, after the issuance of Commonwealth v. Verde, 444 Mass. 279 (2005), this court affirmed both defendants' convictions in a unpublished decision. Commonwealth v. Marquez, 67 Mass. App. Ct. 1117 (2006). In their direct appeal, the defendants raised no issue related to the admission of the drug certificates.
We note that this trial was conducted shortly before issuance, on March 8, 2004, of Crawford v. Washington, supra. The rule established in Crawford however, though available to a defendant whose case was on direct appeal when Crawford was decided, is not available for cases challenged collaterally thereafter. See Whorton v. Bockting, 549 U.S. 406, 416-417 (2007); Commonwealth v. Caillot, 454 Mass. 245, 254 n. 6 (2009) (Crawford decision not retroactive to cases already final on direct review). Similarly, Melendez-Diaz II decided that the rule of Melendez-Diaz I would not be available for application to convictions that were final prior to its issuance. See Melendez-Diaz II, supra at 239-240; Commonwealth v. Boria, 460 Mass. 249, 251 (2011).
On August 31, 2010, and October 14, 2010, Santana and Marquez, respectively, filed separate motions for a new trial, both of which argued entitlement to relief under Melendez-Diaz I. The motion judge considered the motions together and denied them in a single memorandum of decision on December 15, 2010. The judge ruled that the admission of the certificates was error but that the error was harmless beyond a reasonable doubt. Both defendants appealed and we granted the Commonwealth's motion to consolidate the appeals on March 24, 2011.
Retroactivity of the Melendez-Diaz case: The Supreme Judicial Court ruled in Melendez-Diaz II that the rule announced in Melendez-Diaz I, is a new rule that will not be applied retroactively. See 460 Mass. at 246. The defendants ask us to make an exception in this case as the final convictions were issued in the midst of several doctrinal shifts in Massachusetts law. In particular, the defendants highlight the unfortunate timing of the final convictions. Although this case was tried before the issuance of Crawford, supra, an objection was made at trial to the admission of drug certificates on the basis of the confrontation clause. At the time the defendants' convictions became final, the law in Massachusetts was governed by Verde, supra, which viewed drug certificates as nontestimonial and thus admissible in compliance with the confrontation clause. This view was later rejected by Melendez-Diaz I, 129 S. Ct. at 2536-2537. Nevertheless, like the defendant in Melendez-Diaz II, the only basis for awarding relief to the defendants in this case is to give Melendez-Diaz I retroactive application. Relief on this basis is foreclosed by Melendez-Diaz II, supra.
It is not significant whether the confrontation issue was raised on direct appeal. See Commonwealth v. Boria, 460 Mass. 249, 253 ('[F]ailure to press the defendant's objection to the admission of the drug certificates in the direct appeal did not constitute ineffective assistance').
Accordingly, the motion judge properly denied the defendants' motions for a new trial.
Order denying motions for new trial affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),