Opinion
15-P-78
12-14-2015
COMMONWEALTH v. BARRY SPENCER, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We affirmed the defendant's conviction on direct appeal. See Commonwealth v. Spencer, 76 Mass. App. Ct. 1132, S.C., 458 Mass. 1103 (2010). The defendant filed a pro se motion for new trial on December 3, 2013. The court ordered the Commonwealth to respond to one issue, whether the defendant was entitled to the benefit of the holding in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Melendez-Diaz). The Commonwealth responded in a written memorandum filed May 22, 2014. The motion judge denied the motion without a hearing and issued a memorandum of decision on June 30, 2014, in which he held that the admission of the drug certificates was harmless beyond a reasonable doubt. The defendant appeals.
We conclude the analysis in Commonwealth v. Montoya, 464 Mass. 566 (2013), controls this case. Although the properly admitted evidence at trial could have allowed a jury to infer that the substance was cocaine, the evidence was not so overwhelming that it would have nullified the effect on the jury of the admission of the drug certificates on the subject of the identity and weight of the substances. See id. at 571-572.
We do not address the defendant's argument that the motion judge erred when he concluded that the defendant had waived his claim pursuant to Melendez-Diaz, supra, as our reading of the judge's decision indicates that he correctly concluded that the defendant had not waived this claim. Compare Commonwealth v. Montoya, supra at 571.
Order denying motion for new trial reversed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 14, 2015.