Opinion
08-P-1547
02-28-2012
COMMONWEALTH v. JAMES STEVENS.
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
A Superior Court jury found the defendant, James Stevens, guilty of possessing a Class B substance (cocaine) with intent to distribute, in violation of G. L. c. 94C, § 32A, and falsely applying for a motor vehicle license, in violation of G. L. c. 90, § 24B. He timely filed a notice of appeal and subsequently brought a new trial motion on grounds of ineffective assistance of counsel, which was denied without hearing. His appeal of that denial has been consolidated with his direct appeal. We vacate the judgments, set aside the verdicts, and remand for a new trial.
Discussion. The defendant argues that the trial judge erred by (1) admitting drug analysis certificates in violation of his Sixth Amendment confrontation rights under the United States Constitution; (2) incorrectly instructing the jury on the charge of false application for a motor vehicle license; (3) denying a pretrial motion to suppress evidence; and (4) denying his motion for new trial based on ineffectiveness of counsel.
1. Drug analysis certificates. When this appeal was filed, the defendant did not challenge the admission, without objection, of several drug analysis certificates at his trial. Following oral argument, and while the appeal was still pending, the Supreme Judicial Court decided Commonwealth v. Vasquez, 456 Mass. 350, 356-360 (2010). In Vasquez, the court determined that objection to the admission of a drug certificate would have been futile in cases, such as the present one, that were tried after Commonwealth v. Verde, 444 Mass. 279 (2005) (drug certificates admissible as public records) but before the issuance of the decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (drug certificates are testimonial and subject to the confrontation clause). Given the constitutional values at stake, the court in Vasquez concluded that it would treat any such claim of error as preserved and subject to the harmless beyond a reasonable doubt standard of review. Vasquez, supra at 352.
We subsequently granted the parties permission to submit additional briefing on the question of whether the erroneous admission of the certificates was harmless beyond a reasonable doubt. We conclude that it was not.
The prosecution was required to prove that the substance the defendant was charged with possessing was cocaine. Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 511 (2009). The question now before us is whether the properly admitted evidence in the case was 'overwhelming' in the sense that it was powerful enough to nullify any effect that the certificates might have had on the jury. See Commonwealth v. Vasquez, supra at 362.
The police conducted a search of a residence at 35 Prospect Street, Pittsfield, which led to the seizure of the drug evidence here in issue. The Commonwealth introduced several drug analysis certificates at trial for residue found on or near a pair of scissors, on a digital scale, and in a bedroom dresser drawer. State Police Sgt. David B. Foley (Foley) testified that in his opinion crack cocaine was being packaged in the residence for distribution. At a point during direct examination, Foley was shown Exhibit 15, which consisted of a number of sandwich bags, none of which had been tested for drugs. Examining the exhibit, Foley volunteered as to one of the bags, '[T]his one still has coke in it. Well, what appears to be . . . I would bet my paycheck that's crack cocaine.'
The only nonresidue drug evidence was a quantity of white powder in a 'twisty' located in the pants pocket of a pair of women's jeans found in a closet. Foley testified that the substance in the twisty field tested 'presumptive' for cocaine. No drug certificate was offered at trial with respect to the twisty.
Excluding the drug analysis certificates that were introduced, Foley's testimony, including his reference to the field test, was the only evidence presented by the Commonwealth that the substance the defendant was charged with possessing was cocaine. Even if we assume that the trial judge implicitly accepted Foley as an expert, see Commonwealth v. Grisset, 66 Mass. App. Ct. 454, 458 n.10 (2006), his testimony was insufficient to overcome the effect of the erroneously admitted drug certificates.
In its supplemental brief, the Commonwealth 'does not argue that . . . Foley's identification [of the drugs] was, by itself, proof that the substance was crack cocaine.' Indeed, it acknowledges that his opinion was 'conclusory in that he did not explain how his training and experience permitted him to identify the substances as crack cocaine.' Commonwealth v. MacDonald, 459 Mass. 148, 154 (2011) (a police officer's opinion as to the nature of a substance must not be conclusory). See Commonwealth v. Charles, 456 Mass. 378, 381-382 (2010). The basis for his identification is particularly wanting when one considers that the substances that were tested were mere residue found on different surfaces ranging from a pair of scissors to a digital scale.
While on the witness stand, Foley appears to have discerned for the first time cocaine residue on an untested exhibit. This observation did little to overcome the impact of the erroneously admitted certificates.
The Commonwealth emphasizes that a field test was done on the contents of the twisty found in the pants pocket. See Commonwealth v. Connolly, 454 Mass. 808, 831 (2009) (error in admission of drug certificates harmless where there was testimony that the substances field tested positive for cocaine). Unlike in Connolly, however, the substance that was field tested here was not the subject of any of the drug certificates in question. Consequently, the fact that the substance that was field tested produced a result of 'presumptive' for cocaine does not constitute independent evidence nullifying the impact of the erroneously admitted certificates. The present case is thus also distinguishable from Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 872-875 (2010), where the influence on the jury of improperly admitted drug certificates was overcome by earlier, positive field tests for cocaine on the same substances. Moreover, in Sullivan the positive results from the field tests performed immediately after each cocaine buy were further bolstered by evidence from an admitted drug user who testified that he recognized the substance he purchased from the defendant as cocaine.
We note that although the Commonwealth's Supplemental Brief repeatedly refers to the results of the field test that was done as being 'positive' for cocaine, the test results were, as stated by Foley, 'just presumptive' for that substance. See Commonwealth v. Fernandez, 458 Mass. 137, 153 (2010) (evidence of 'presumptive' field test result for suspected cocaine residue was 'incremental' and could not by itself nullify influence of improperly admitted drug certificate).
In the absence of such additional evidence, the jury here necessarily would have placed significant emphasis on the laboratory analysis described in the drug certificates in order to conclude that the residue was cocaine. Consequently, '[t]he improperly admitted certificates cannot be said to have played little or no role in the outcome of the case.' Commonwealth v. Melendez-Diaz, 76 Mass. App. Ct. 229, 235 (2010). Therefore, '[t]he error in their admission was not harmless beyond a reasonable doubt.' Ibid.
2. Improper jury instruction. The Commonwealth concedes that the trial judge incorrectly instructed the jury regarding the elements of falsely obtaining a motor vehicle license in violation of G. L. c. 90, § 24B, but posits that this error was harmless. As defense counsel did not object to the instruction, we assess the defendant's claim of error using the substantial risk of a miscarriage of justice standard. Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002).
During a sidebar conference the prosecutor raised a concern that the jury had been instructed on a crime different from the one for which the defendant was indicted, but the judge declined to reinstruct the jury on the issue.
Even if we assume the evidence against the defendant was overwhelming, the jury here were instructed in a way that substantially reduced the Commonwealth's burden of proof. See Commonwealth v. Kraatz, 2 Mass. App. Ct. 196, 201-202 (1974) (prosecution must prove beyond a reasonable doubt that defendant knowingly made a false statement to obtain driver's license). The jury were instructed that they could convict the defendant simply if they found he possessed a driver's license that was not genuine, with no mention of the requirement that the defendant knowingly made a false statement to obtain it. This error created a substantial risk of a miscarriage of justice. See Commonwealth v. Stoltz, 73 Mass. App. Ct. 642, 644-645 & n.4 (2009); Commonwealth v. Hall, 48 Mass. App. Ct. 727, 730 (2000), citing Commonwealth v. Glenn, 23 Mass. App. Ct. 440, 444-445 (1987).
3. Motion to suppress. The defendant contends there was insufficient probable cause to support the issuance of the search warrant for 35 Prospect Street. Accordingly, he claims that his motion to suppress the evidence recovered there should have been allowed. We disagree. The affidavit in support of the search warrant described in detail six controlled buys with surveillance, two of which involved direct drug transactions with the defendant, and described a pattern in which the defendant or his former girlfriend would drive from the residence to the drug transactions and back to the residence after the sales had occurred. This was more than sufficient to establish probable cause. See Commonwealth v. Warren, 418 Mass. 86, 89 (1994), citing Commonwealth v. Luna, 410 Mass. 131, 134 (1991).
4. Motion for new trial. The defendant asserts that he is entitled to a new trial, claiming that his trial counsel was ineffective for failing to seek dismissal of his indictment on grounds of grand jury impairment, and to cross-examine State troopers at trial about a certificate of analysis erroneously presented to the grand jury. Neither claim is availing.
a. Grand jury proceedings. 'Dismissal of an indictment based on impairment of the grand jury proceedings requires proof of three elements: (1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict.' Commonwealth v. Silva, 455 Mass. 503, 509 (2009), citing Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986). The defendant contends that the Commonwealth impaired the grand jury proceeding by introducing a certain drug certificate as evidence against him, even though the cocaine referred to in that certificate was from a controlled purchase from his former girlfriend with which the defendant was never charged.
In denying the motion, the trial judge concluded the certificate was introduced as a result of 'an inadvertent mistake and not a nefarious act' and that other, properly submitted evidence provided 'more than sufficient evidence to indict the defendant.' That determination was reasonable in light of the other evidence available to the grand jury and the fact that any inaccuracy in the Commonwealth's presentation was clearly not in bad faith. See Commonwealth v. Silva, supra at 510.
b. Failure to cross-examine. This argument, which concerns a failure to cross-examine certain trial witnesses for the prosecution about the aforementioned certificate, has been rendered moot by our determinations that the defendant is entitled to a new trial, and we do not reach it. See Commonwealth v. Santos, 454 Mass. 770, 771 & n.3 (2009). Conclusion. We vacate the judgments, set aside the verdicts, and remand the matter to the Superior Court for a new trial consistent with this memorandum and order. So ordered.
Similarly, we need not consider the defendant's claim of error in the denial of his request for a continuance of the trial.
Because the properly admitted evidence was sufficient to warrant submission of both indictments to the jury, retrial of these offenses is not barred by double jeopardy. See Lockhart v. Nelson, 488 U.S. 33, 34 (1988); Kater v. Commonwealth, 421 Mass. 17, 20 (1995).
--------
By the Court (Rapoza, C.J., Kafker & Hanlon, JJ.),