Opinion
12-P-604
12-28-2012
COMMONWEALTH v. JOSHUA J. SOTO.
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 distributing a class A controlled substance (heroin), G. L. c. 94C, § 32(a), and possessing a class D controlled substance (marijuana), G. L. c. 94C, § 34.
The defendant's motion for a required finding of not guilty on the count alleging violation of G. L. c. 94C, § 32J, was allowed.
The defendant argues (with respect to both convictions) that the admission of drug certifications without live testimony by the certifying chemist (or a prior opportunity for cross-examination) violated his right to confrontation. The Commonwealth acknowledges the error and also that it was not harmless beyond a reasonable doubt. We agree, and both convictions must accordingly be reversed. The defendant concedes, as he must, the sufficiency of the evidence on the marijuana possession charge. However, he argues that the evidence was insufficient to convict him of distributing heroin. We agree. Even viewed in the light most favorable to the Commonwealth, the evidence did not support a conviction of distribution of a class A substance beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). There was no evidence of what, if anything, happened while the defendant and Ramos were in the automobile. They were not observed to lean towards each other, or to make any sort of a hand-to-hand transaction or movement. In fact, they were not observed to do anything at all while in the car. Contrast, e.g., Commonwealth v. Clark, 446 Mass. 620, 622 (2006) (defendant leaned into vehicle, reemerged, spoke with another man; their hands met briefly, and defendant pocketed green paper); Commonwealth v. Soto, 45 Mass. App. Ct. 109, 111 (1998) (after 'planned rendezvous' with driver of car on street containing 'heroin house,' defendant reached into car and left within fifteen seconds). The officer's testimony, which was not qualified as that of an expert, that the duration of the ride was similar to what he had seen in unrelated drug transactions, was alone insufficient to permit the jury to find beyond a reasonable doubt that a drug transaction occurred during this particular ride. Moreover, because there was no evidence as to the value of the heroin found near Ramos, the fact that a $20 bill was found between the seat and the console of the car did not support an inference that it related to, or resulted from, the sale of the drug.
Because this case was pending on direct appeal when Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009), was decided, the defendant is entitled to the 'harmless beyond a reasonable doubt' standard of review. Commonwealth v. Vasquez, 456 Mass. 350, 352, 360 (2010).
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On the charge of distributing heroin, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. On the charge of marijuana possession, the judgment is reversed and the verdict is set aside.
So ordered.
By the Court (Vuono, Grainger & Wolohojian, JJ.),