Commonwealth v. Escalera

945 N.E.2d 415, 79 Mass. App. Ct. 262, 2011 Mass. App. LEXIS 545
CourtMassachusetts Appeals Court
DecidedApril 14, 2011
DocketNo. 08-P-517
StatusPublished
Cited by4 cases

This text of 945 N.E.2d 415 (Commonwealth v. Escalera) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Escalera, 945 N.E.2d 415, 79 Mass. App. Ct. 262, 2011 Mass. App. LEXIS 545 (Mass. Ct. App. 2011).

Opinions

Wolohojian, J.

The defendant raises two primary issues in this appeal from his convictions of various drug and firearm offenses.1 First, he argues that admission of certificates of drug and ballistics analysis, absent live testimony, violated his right to confrontation pursuant to the Sixth Amendment to the United States Constitution. Second, the defendant contends that evidence seized from his residence should have been suppressed for lack of probable cause. We reverse all but the ammunition conviction given the error in admitting the certificates. But because we conclude that there was probable cause to search the defendant’s residence, we remand for new trial on those charges.

1. Sixth Amendment. Ballistics and drug certificates were admitted at trial over the defendant’s objection. There is no doubt that their admission, absent live testimony or the opportunity to cross-examine, violated the confrontation clause of the Sixth Amendment. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). We review, therefore, to determine whether the admission of the certificates was harmless beyond a reasonable doubt. “Our review presumes that the constitutional violation requires reversal, but an affirmative showing of harmlessness beyond a reasonable doubt by the Commonwealth will preserve the convictions.” Commonwealth v. Fluellen, 456 Mass. 517, 526 (2010). “In considering the essential question whether the error had, or might have had, an effect on the jury and whether the error contributed to or might have contributed to the verdicts, our focus is not on whether the jury could have convicted the defendant had the tainted evidence been excluded; it is not [264]*264enough for the Commonwealth to demonstrate that its other, properly admitted evidence was sufficient to convict the defendant or that the inadmissible evidence was consistent with the admissible evidence. Rather, we ask whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury’s verdicts.” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010) (quotations and citations omitted). See Chapman v. California, 386 U.S. 18, 23-24 (1967).

The Commonwealth primarily argues that the erroneous admission of the certificates was harmless beyond a reasonable doubt because neither the composition of the narcotics nor the operability of the firearms were “live” issues at trial. This, however, is not enough where, as here, there was little (if any) evidence to prove the nature of the substances or the operability of the firearms. See Commonwealth v. Vasquez, 456 Mass. 350, 368 (2010); Commonwealth v. Charles, 456 Mass. 378, 383 (2010). Even if a defendant does not contest the composition of the alleged drugs, or the operability of a firearm, the “defendant’s theory of his case cannot relieve the Commonwealth of its burden of proving every element of a crime beyond a reasonable doubt.” Commonwealth v. Shea, 398 Mass. 264, 269 (1986). Nor does the fact that defense counsel at various points referred to the objects as a “gun,” or heroin, or cocaine satisfy the Commonwealth’s burden of proving the guns’ operability or the substances’ composition.2 Commonwealth v. Charles, 456 Mass. at 383.

That said, we conclude based on Commonwealth v. Muniz, [265]*265456 Mass. 166, 172-173 (2010), that the admission of the certificate of ballistics analysis with respect to the ammunition charge was harmless beyond a reasonable doubt. The crime of unlawful possession of ammunition requires the Commonwealth to show that the bullets found in the defendant’s firearm were “designed for use in any firearm.” G. L. c. 140, § 121. Here, as in Muniz, 456 Mass, at 171, the Commonwealth introduced in evidence the gun and the rounds found inside the gun when it was seized. A police officer testified at trial that the rounds were found inside the gun. “The cartridges themselves and the officer’s testimony that they were found ... in the gun at the time it was seized[] provide overwhelming evidence that the cartridges met the statutory definition of ammunition.” Id. at 173.

2. Motion to suppress. The defendant argues that the affidavit supporting the application for a search warrant did not set forth a “nexus” with his residence sufficient to establish probable cause. To determine whether a sufficient nexus has been made out, we read the affidavit as a whole, without isolating or deconstructing its individual parts, or subjecting it to strained or hypercritical analysis. See Commonwealth v. Blake, 413 Mass. 823, 827 (1992). “The nexus may be found in ‘the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide’ the drugs he sells.” Commonwealth v. O’Day, 440 Mass. 296, 302 (2003), quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213, cert, denied, 484 U.S. 860 (1983).

“When that location is a residence, there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide ‘a sufficient nexus between the defendant’s drug-selling activity and his residence to establish probable cause to search the residence.’ ” Commonwealth v. Pina, 453 Mass. 438, 440-441 (2009), quoting from Commonwealth v. O’Day, 440 Mass. at 304 (single observation of drug dealer leaving his residence to go to drug transaction did not provide sufficient nexus). “Information establishing that a person is guilty of a crime does not necessarily constitute probable cause to search the person’s residence.” Commonwealth v. [266]*266Cinelli, 389 Mass. at 213. “It follows that probable cause to expect that drugs will be present in a home is not established by the fact that the defendant lives there.” Commonwealth v. Pina, 453 Mass, at 441. Just as residency alone does not establish probable cause, “the fact that a defendant drives from his home to the location of a drug transaction, and returns to his home on the transaction’s conclusion, with no other facts connecting the residence to drug sales, does not provide probable cause to search the residence” (emphasis added). Commonwealth v. Medina, 453 Mass. 1011, 1011 (2009), quoting from Commonwealth v. Pina, 453 Mass, at 441 (single round trip to and from drug transaction did not establish probable cause to search residence). Among the infinite variety of additional facts human behavior can provide (together with the reasonable inferences to be drawn from them) to establish probable cause to search a residence, one cannot exclude a drug dealer’s pattern of leaving and returning to his residence for each drug sale. A pattern of repeated activity giving rise to a reasonable inference that a dealer’s residence is being used as the base for his drug operation provides sufficient nexus to search his residence.

Summarized, the facts in the affidavit in this case were as follows.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Jamaine Warner.
Massachusetts Appeals Court, 2024
Commonwealth v. Escalera
970 N.E.2d 319 (Massachusetts Supreme Judicial Court, 2012)
Commonwealth v. Colon
951 N.E.2d 1005 (Massachusetts Appeals Court, 2011)
Commonwealth v. Monteiro
951 N.E.2d 989 (Massachusetts Appeals Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
945 N.E.2d 415, 79 Mass. App. Ct. 262, 2011 Mass. App. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-escalera-massappct-2011.