Commonwealth v. Marte

993 N.E.2d 1201, 84 Mass. App. Ct. 136, 2013 WL 4082026, 2013 Mass. App. LEXIS 130
Massachusetts Appeals Court·Decided August 15, 2013·No. No. 09-P-776·Published·Cited by 6 cases

Opinion

Berry, J.

This case involves a series of four controlled cocaine “buys” by a State trooper, acting undercover, from a man known as “Carlos” — but later identified as the defendant, Adolfo Marte. Based on these controlled buys, a jury convicted the defendant of four counts of trafficking in cocaine in excess of twenty-eight grams. The defendant was also convicted of a single count of trafficking in cocaine in excess of 200 grams [137] based on seizures pursuant to a search warrant executed at the defendant’s apartment. See G. L. c. 94C, § 32E(6)(4). The search warrant was obtained on the same day as the defendant’s arrest, following the fourth controlled buy of cocaine.

At trial, over the defendant’s objection, the Commonwealth introduced certificates of drug analysis, without trial testimony from the chemical analyst, to support each of the five trafficking charges. This was constitutional error violating confrontation rights. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009). The principal issue in this appeal1 is whether the Commonwealth’s evidence — including field testing of the cocaine bought in the controlled buys and lack of field testing of the cocaine seized in the apartment — rendered the error in the admission of the drug certificates harmless beyond a reasonable doubt. See generally Commonwealth v. Vasquez, 456 Mass. 350, 352, 360-362 (2010).2

For the reasons that follow, we affirm the four convictions [138] based on the controlled buys. However, the conviction based on the seizure from the defendant’s apartment cannot stand.

1. Background. The following is a brief summary of the trial evidence. The circumstances underlying each of the controlled buys were, reduced to essential acts, nearly identical. Prior to each controlled buy, Trooper Daniel Tucker would contact the defendant (who used the name “Carlos”) requesting to purchase two ounces of cocaine. The defendant set a price of $2,200 for each two-ounce sale. The defendant would instruct Trooper Tucker to proceed to the parking lot of a nearby Friendly’s restaurant. During the first and second controlled buys, an associate of the defendant known as “Nieves” arrived by car at the Friendly’s parking lot and delivered to Trooper Tucker a plastic bag containing approximately two ounces of a white powdery substance. After the second buy, the defendant, in a telephone conversation, inquired whether the trooper was satisfied with the quality of the substance delivered and boasted, “You never have to worry about my packages, I’ve been around a long time.” The defendant himself made the third delivery. After the trooper’s call to the defendant, another man known as “Andino” made the fourth delivery at the Friendly’s, but shortly thereafter was joined by the defendant.

After each controlled buy, Trooper Tucker immediately performed a field test on the purchased substance. Each of the four field tests indicated the presumptive presence of cocaine. As previously noted, the defendant was arrested after Trooper Tucker made the fourth and final controlled buy. That same day, police executed a search warrant at the defendant’s apartment and seized a large quantity of a white powdery substance from a secret compartment, what the police expert characterized as a [139] drug “hide,” under the kitchen sink.3 Also seized were two scales and two boxes of plastic sandwich bags from the kitchen area of the apartment. Field tests were not performed on the substances found at the defendant’s apartment.

2. Standard of review. “The ‘essential question’ in analyzing harmlessness beyond a reasonable doubt is ‘whether the error had, or might have had, an effect on the [fact finder] and whether the error contributed to or might have contributed to the [findings of guilty].’ ” Vasquez, 456 Mass. at 360, quoting from Commonwealth v. Perrot, 407 Mass. 539, 549 (1990). “[I]t is not enough 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.” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010), quoting from Commonwealth v. Dagraca, 447 Mass. 546, 554-555 (2006). “Rather, to establish harmlessness beyond a reasonable doubt, the Commonwealth must show that other properly admitted evidence of guilt is ‘overwhelming,’ in the sense that it is ‘so powerful as to nullify any effect’ that the improperly admitted evidence ‘might have had’ on the fact finder or the findings.” Vasquez, supra at 362, quoting from Tyree, supra at 704 n.44.

Against this backdrop, we conclude that the totality of the Commonwealth’s evidence, including but not limited to the positive field test for cocaine, was sufficient to render the admission of the certificates of drug analysis harmless error with respect to the four controlled buys of cocaine delivered to Trooper Tucker, which were the predicates for the four convictions for trafficking in cocaine in excess of twenty-eight grams. However, our review of the trial record, as described in part 4, infra, reflects little evidence which would have established that the composition of the substance seized from the apartment was cocaine, except for the erroneously admitted certificate of analysis. Hence, we conclude the Commonwealth’s evidence did not overcome the Melendez-Diaz error with respect to the cocaine seized in the apartment — which was the predicate for the conviction for trafficking in excess of 200 grams.

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Commonwealth v. Marte, 993 N.E.2d 1201, 84 Mass. App. Ct. 136, 2013 WL 4082026, 2013 Mass. App. LEXIS 130 (Mass. Ct. App. 2013).

993 N.E.2d 1201 (Commonwealth v. Marte) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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