Commonwealth v. Vasquez

923 N.E.2d 524, 456 Mass. 350, 2010 Mass. LEXIS 120

• Court: Massachusetts Supreme Judicial Court
• Decided: March 26, 2010
• Docket: SJC-10577
• Status: Published

Opinions

Marshall, C.J.

The defendant was tried and convicted of possession and distribution of cocaine after our decision in Commonwealth v. Verde, 444 Mass. 279 (2005) (Verde), and before the United States Supreme Court issued Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz); defense counsel did not object at trial to the admission of State police crime laboratory certificates of drug analysis (drug certificates). We consider whether in these circumstances the admission in evidence of the drug certificates in violation of the defendant’s rights under the confrontation clause of the Sixth Amendment to the United States Constitution requires reversal of his convictions.

The defendant was convicted of distribution and possession of cocaine. See G. L. c. 94C, §§ 32A, 34. Immediately following trial, he pleaded guilty to subsequent offender charges related to the two distribution convictions. See G. L. c. 94C, § 32A (c) and (d). During his trial, without objection from defense counsel, the Commonwealth introduced in evidence three drug certificates attesting that certain substances sold or possessed by the defendant were cocaine. The analysts who signed the drag certificates did not testify at trial, and defense counsel had no prior opportunity to cross-examine them. The admission of the drug certificates was in accord with our holding in Verde, where we concluded that drug certificates were not “testimonial statements” within the meaning of the confrontation clause of the Sixth Amendment, Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (Crawford),2 and were admissible against a criminal defendant under the “public records” exception to the hearsay rule. See Verde, supra at 284 (drug certificates “are well within the public records exception to the confrontation clause”). After the defendant’s trial had concluded, the Supreme Court granted certiorari in Melendez-Diaz, supra.3 Melendez-Diaz abrogated Verde, and the Supreme Court held expressly that drug certificates are within the category of out-of-court testimonial statements whose admission in evidence against a criminal defendant triggers the protections of the confrontation clause. See Melendez-Diaz, supra at 2532.

The defendant appealed from his convictions, raising a Melendez-Diaz challenge for the first time. See Commonwealth v. Vasquez, 75 Mass. App. Ct. 446, 451 (2009). A divided panel of the Appeals Court upheld the convictions and reported the “[i]ssues involving the drug certificates” to this court. Id. at 462. See G. L. c. 211A, § 12.⁴

As we explain below, defense counsel’s actions with regard to the admissibility of the drug certificates must be considered in light of our decision in Verde, which unquestionably was binding on the judge. Because any objection to the admissibility of the drug certificates would have been futile, and because the constitutional issues at stake for the defendant are substantial, we review the constitutional error as though preserved by proper objection at trial. Applying that standard to this case, we cannot say that the admission of the drug certificates was harmless beyond a reasonable doubt. See Commonwealth v. Vinnie, 428 Mass. 161, 163, cert, denied, 525 U.S. 1007 (1998) (preserved constitutional errors reviewed “to determine whether or not they were harmless beyond a reasonable doubt”). We reverse the judgments, set aside the verdicts, and remand for a new trial.⁵

1. Facts. We first summarize the facts as the judge at this jury-waived trial could have found them, reserving discussion of certain facts to later sections of this opinion.

In 2005, the Hampden County narcotics task force (task force), operating under the auspices of the State police, was investigating narcotics trafficking in the South End section of Springfield. Acting on information developed in the course of the investigation, on July 7, 2005, State Trooper Henot Rivera, a member of the task force, went undercover to 284 Dwight Street Extension, apartment 4 left (4L), to attempt to purchase cocaine from an individual known to him only as “Flaco,” whom Rivera later identified as the defendant. Rivera knocked on the door of apartment 4L, was allowed inside by an unknown man, and was then introduced to the defendant. Rivera, who testified that all of his conversations with the defendant were in Spanish, asked the defendant for an “eight ball.”

Rivera testified that the defendant “sent” an unknown man “to retrieve that amount of crack cocaine”; the man left the apartment and after returning gave the defendant “the crack cocaine that [Rivera] had ordered,” which Rivera purchased from the defendant for $120 in prerecorded police “buy money.” The entire transaction took approximately five minutes. On leaving the apartment, Rivera testified that he gave “the eight ball of crack cocaine” to an “evidence officer,” who took the material to a State police crime laboratory to be analyzed.

The task force’s investigation of narcotics distribution at 284 Dwight Street Extension was then temporarily suspended because of another law enforcement operation in the area. On October 18, 2005, Rivera again returned in an undercover capacity to apartment 4L. He was met on the fourth-floor porch outside the apartment by the same unknown man who had allowed him into the apartment on July 7, 2005. When Rivera said that he wanted to purchase crack cocaine, the defendant came out of the apartment onto the porch where Rivera asked for an “eight ball of crack.” The defendant only had “sixteenths,” which, Rivera testified, were “smaller amounts of crack.” The defendant, in Spanish, “called down” to “Munchy,” later identified as Juan Rebollo, and “summonsed him up to bring an eight ball of crack.” When Rebollo came to the fourth floor, the defendant invited Rivera into the apartment, where the defendant told Rebollo, “Go ahead and sell [Rivera] the crack.” On cross-examination, Rivera testified that the defendant’s “exact words” to Rebollo were, “Sell to him.” Rivera testified that he then purchased “an eight ball of crack cocaine” from Rebollo for $120 in marked police “buy money,” and then followed the same procedure he had used on July 7 for securing and analyzing the materials.

On October 20, 2005, police officers executed a search warrant for 284 Dwight Street Extension, apartments 4L and 2R. They encountered a number of individuals throughout apartment 4L, including the defendant, from whom they recovered $493 in cash and some keys. From apartment 4L they also recovered a pair of scissors, sandwich bags, a scale, $274 in a “running” toilet bowl, a “walkie-talkie,” a set of keys, a utility bill, and a clear white bag containing a white powdery substance. From apartment 2R, they recovered a strong box with $2,905 in cash, rubber bands, and some documents in the defendant’s name, among other things. The defendant was arrested at the scene.

2. The trial. Through Trooper Rivera, the prosecutor introduced in evidence the substances that Rivera purchased on July 7 and October 18, as well as corresponding drug certificates attesting that each substance contained cocaine. Through Trooper Juan Colon, another member of the task force, the Commonwealth introduced in evidence a small bag of white powder recovered on October 20 from apartment 4L, and a corresponding drug certificate attesting that the substance was cocaine. Defense counsel did not object to the admission of any of the alleged narcotics or the drug certificates,⁶ nor did he object to the Commonwealth’s characterization of the substances as “drugs” or “crack cocaine” in the prosecutor’s questions. In his closing argument, defense counsel appeared to concede that the substances in question were narcotics. For example, he told the judge that the police “found no fingerprints on anything they had in terms of three separate sets of drugs.” At another point in his closing argument, he called the materials “contraband.” The defendant, however, did not stipulate that the substances were cocaine.

The defense was mistaken identity. Defense counsel called three witnesses — the defendant, his girl friend, and the eleven year old son of the defendant’s girl friend — for the purpose of establishing that, at the time of the alleged narcotics sale on July 7, 2005, all three were driving from Springfield to John F. Kennedy International Airport in New York City, where the son would fly to Puerto Rico. The viability of the alibi was severely tested at trial.

In addition, the defendant testified that he had not witnessed the transaction between Trooper Rivera and Juan Rebollo on October 18, 2005. Rebollo was called by the defense and questioned about the October 18 transaction. He largely confirmed the defendant’s testimony that the defendant was not involved in the October 18 drug deal. On cross-examination by the Commonwealth, Rebollo admitted that in connection with a plea bargain on charges related to the October 18 transaction, he had admitted under oath to the truth of facts read into the record that he, Rebollo, had been instructed by the defendant to sell crack cocaine to Rivera. Rebollo explained that the statement of facts he swore to was not correct, and that he vouched for its truth only because “I thought that the deal they were offering me was a deal that was convenient for me . . . .”

We turn now to the question of the appropriate standard of review.

3. Standard of review. A decision whether to affirm, modify, or reverse a conviction focuses in the first instance on the standard of review on appeal. In general, where a proper objection is lodged at trial to an alleged infringement of a constitutional right, we review to decide “whether the record establishes ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Commonwealth v. Peixoto, 430 Mass. 654, 660 (2000), quoting Chapman v. California, 386 U.S. 18, 24 (1967).⁷ Where the constitutional challenge has not been properly preserved, we generally apply a standard of review less favorable to the defendant: we consider whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997) (substantial risk standard requires reversal of verdict “if the evidence and the case as a whole . . . [leaves] us with a serious doubt that the defendants’ guilt [has] been fairly adjudicated” [citations omitted]).

Determining the proper standard of review is no rote matter. The presence or absence of an objection at trial, in itself, is not the sole criterion by which we determine the appropriate standard of appellate scrutiny. See, e.g., Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984), and cases cited (excusing defendant’s failure to object to constitutional error because state of law at trial did not “afford the defendant a genuine opportunity to raise his claim”). In this case several circumstances weigh in favor of according the defendant the more favorable standard of appellate review.

First, objection to the admission in evidence of the drug certificates would have been futile because the judge was required to follow Verde. It is true, of course, that the Supreme Court, and not this court, is the final arbiter of what the Federal Constitution demands, and that Verde was not controlling for purposes of Federal review. See Commonwealth v. Masskow, 362 Mass. 662, 667 (1972) (“We are of course bound by decisions of the Supreme Court on questions of Federal law . . .”). Nonetheless, it is also true that this court is the highest appellate authority in the Commonwealth, and our decisions on all questions of law are conclusive on all Massachusetts trial courts and the Appeals Court. Principles of stare decisis required the trial judge in this case to take Verde “at face value until formally altered.” Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir. 1973). See, e.g., Commonwealth v. Calderon, 431 Mass. 21, 24-28 (2000) (reversal of conviction required where judge failed to follow procedures for peremptory challenges established by this court). Cf. Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486 (2003), and cases cited (Appeals Court has “no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided”).⁸ In this sense, the position of a Massachusetts trial court vis-a-vis this court is not unlike the position of a Federal District Court to its corresponding Circuit Court of the United States Court of Appeals. “District courts are, of course, bound by the law of their own circuit . . . .” Zuniga v. United Can Co., 812 F.2d 443, 450 (9th Cir. 1987), quoting Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933 (9th Cir. 1981), cert, denied, 459 U.S. 828 (1982). See Eulitt v. State of Me., Dep’t of Educ., 386 F.3d 344, 349 (1st Cir. 2004) (same); United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990) (same). No matter how strongly a Massachusetts trial judge may disagree with this court on an interpretation of Federal constitutional law, or how confident a judge may be that the Supreme Court will disagree with this court on such a question, so long as our holding has not been abrogated, it is the law the judge must apply.⁹

Because the judge was required to follow our holding in Verde, a point not mentioned by the Appeals Court, see Commonwealth v. Vasquez, 75 Mass. App. Ct. 446, 458-459 (2009), the parties’ extensive arguments about whether Melendez-Diaz was presaged by Crawford, or whether the former case constitutes new Federal constitutional doctrine in its own right, miss the mark. See Commonwealth v. Vasquez, supra at 451-460. For regardless whether Crawford foreshadows Melendez-Diaz, in Massachusetts courts the line from Crawford to Melendez-Diaz was bisected by our decision in Verde. Verde distinguishes this matter from cases in which the line from a new constitutional doctrine to its latest development is unbroken, and thus requires a different analysis.¹⁰

Second, because an objection to the admission of a drug certificate would have been futile, the rationale for denying the defendant a more favorable standard of review is not applicable. Objections at trial serve an important remedial purpose in our adversary system. The “rationale behind the requirement of a specific [objection] is to enable the judge to make any necessary correction” at trial. Commonwealth v. McDuffee, 379 Mass. 353, 359 (1979). See Commonwealth v. Torres, 420 Mass. 479, 482-483 (1995) (same). Here, a confrontation clause objection to the admission of the drug certificates, no matter how compelling, could not have accomplished the intended purpose of an objection, for the judge would have had no choice but to overrule the objection. Thus, for the attorney who raised a confrontation clause challenge to the admission of a drug certifícate and for the attorney who did not raise such an objection, the result for the defendant would have been the same — admission of a drug certificate. It would serve no purpose to treat the two defendants differently on appellate review. See Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The law does not require the doing of a futile act”). But see Crawford, supra at 68. See generally note 9, supra; Newton, An Argument for Reviving the Actual Futility Exception to the Supreme Court’s Procedural Default Doctrine, 4 J. Appellate Prac. & Process 521 (2002).

Finally, considerations of fundamental fairness weigh against applying the less favorable standard of review to the defendant. Although Crawford effected a clear break from prior confrontation clause jurisprudence, see Whorton v. Bockting, 549 U.S. 406, 416 (2007) (Crawford announced “new rule” “flatly inconsistent with the prior governing precedent”), the reach of Crawford was, and remains, vigorously debated. See, e.g., State v. O’Maley, 156 N.H. 125, 134-137 (2007), cert, denied, 129 S. Ct. 2856 (2009) (discussing various disparate interpretations of Crawford). See also Briscoe v. Virginia, 130 S. Ct. 1316 (2010) (vacating and remanding post-Crawford confrontation clause decision of Supreme Court of Virginia in light of Melendez-Diaz). Our holding in Verde was not an aberration, and reflected the unsettled nature of confrontation clause jurisprudence in Crawford’s wake,¹¹ an uncertainty not of the defendant’s or his counsel’s making.

Drug certificates, the Supreme Court has now held, fall within the “core class of testimonial statements” that trigger confrontation clause protections. Melendez-Diaz, supra at 2532. In the language of our jurisprudence, the “substantial nature” of the rights involved is “unquestionable.” Commonwealth v. Stokes, 374 Mass. 583, 589 (1978). Admission of the drug certificates was constitutional error, but it was error in circumstances where contrary precedent had enjoyed a long, unproblematic history in this Commonwealth, see Verde, supra at 282-283 (noting admission of drug certificates as early as 1923 and noting “ancient” common-law principle of public records exception), and where our established precedent had been explicitly reaffirmed by this court in the wake of Crawford. See Verde, supra at 284. The defendant should not be penalized because of any doubt on the state of the law that Verde may have created.

We next consider whether admission of the drug certificates at trial was harmless beyond a reasonable doubt.

4. Merits. Before a “[Fjederal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). 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].” Commonwealth v. Perrot, 407 Mass. 539, 549 (1990). As an appellate court, 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 [fact finder] and did not contribute to the [fact finder’s findings].”¹² Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). Our review looks “to the basis on which ‘the [fact finder] actually rested its verdict’ ” (emphasis in original). Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), quoting Yates v. Evatt, 500 U.S. 391, 404 (1991). The inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error” (emphasis in original). Sullivan v. Louisiana, supra.

The standard of harmlessness beyond a reasonable doubt is a stringent one, for if “loosely applied,” the concept of harmless error “can serve too readily as a bridge for a procession of mistakes and injustices.” Commonwealth v. Sinnott, 399 Mass. 863, 872 (1987), quoting Commonwealth v. Marini, 375 Mass. 510, 521 (1978). For the reasons we now discuss, we cannot say that the admission of the drag certificates was harmless beyond a reasonable doubt.

In a case charging a narcotics offense, the Commonwealth must prove beyond a reasonable doubt “that a substance is a particular drug” because such proof is an element of the crime charged. Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 511 (2009). See, e.g., G. L. c. 94C, §§ 32-32E, 34. See also Commonwealth v. Farley, 443 Mass. 740, 745, cert, denied, 546 U.S. 1035 (2005) (Commonwealth must prove “each and every element” of crime beyond reasonable doubt). The Commonwealth cannot meet its burden of proving the trafficking in, distribution, or possession of cocaine without proof that the substance at issue was, beyond a reasonable doubt, “cocaine” and not another drug or ersatz cocaine. See United States v. Miller, 471 U.S. 130, 142 (1985) (“a conviction cannot stand if based on an offense that is different from that alleged in the grand jury’s indictment”). The three dmg certificates introduced against the defendant as part of the Commonwealth’s prima facie case were potent, unrefuted evidence that the substances at issue were cocaine. Presumably for that reason the Commonwealth does not challenge the damaging evidentiary force of the drug certificates for the defendant. Rather, it argues that other evidence introduced at trial established circumstantially that the materials purchased or seized were, in fact, cocaine and sufficed to meet its burden of proof on that issue, citing Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) (proof that substance is particular drug “may be made by circumstantial evidence”).

We agree that there was circumstantial evidence properly admitted at trial that the white powder sold to Trooper Rivera on July 7 and October 18, 2005, was cocaine.¹³ The question we are asked to resolve, however, is not, in the abstract, the strength of the Commonwealth’s case, but whether we can be satisfied, beyond a reasonable doubt, that the erroneously admitted certificates of analysis had little or no effect on the verdicts. Then, and only then, can we say that their admission in evidence was harmless beyond a reasonable doubt. It 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, supra at 701, quoting 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. Commonwealth v. Tyree, supra at 704 n.44, quoting Commonwealth v. Dagraca, supra at 555.

Moreover — and of particular relevance to this case — where the improperly admitted evidence directly implicates the Commonwealth’s proof of an element of the crime, our inquiry must necessarily focus on the effect of the improperly admitted evidence as it pertains to that element. See, e.g., Commonwealth v. Depina, ante 238, 249 (2010) (admission of ballistics certificate harmless beyond reasonable doubt because other “lawfully admitted evidence [at trial] that the revolver was a working firearm and that the ammunition was designed for use in a firearm” was “overwhelming” [emphases added]); Commonwealth v. Rainwater, 425 Mass. 540, 551 (1997), cert, denied, 522 U.S. 1095 (1998), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162, 168 & n.1 (2001) (assuming admission of evidence was constitutional error, error was harmless beyond reasonable doubt where such evidence “supplied no missing element in the proof” of crimes for which defendant was convicted); Commonwealth v. Sinnott, supra at 873 (if erroneously admitted evidence “is corroborative of other evidence which, without such corroboration, permits reasonable doubt concerning a necessary element of proof,” erroneously admitted evidence “is not merely cumulative because it would necessarily have contributed to the verdict, and reversal would be required” [emphasis added]).¹⁴ The inquiry here, therefore, is whether the testimony of the police officers (or any other evidence not including the drug certificates) as to the chemical composition of each substance was so “overwhelming” as to “nullify any effect” the admission of the drag certificates might have had on establishing beyond a reasonable doubt the element of the crimes that the substances were “cocaine.” The analysis of the strength of the Commonwealth’s other evidence is significant only if, and to the extent that, it can bring us to the conclusion that the admission of the drug certificates had little or no effect in proving that element.

We consider first the probative impact of the drug certificates. Just how damaging the admission of the drug certificates was to the defendant is apparent when we consider our earlier underlying rationale for admitting drug certificates without live testimony from the chemical analysts who swore to their veracity. In Verde, we stated that drug certificates were “merely records of primary fact, with no judgment or discretion on the part of the analysts,” and that such certificates “state the results of a well-recognized scientific test determining the composition and quantity of the substance.” Verde, supra at 282, 283. Verde's reasoning that drug analyses and drug certificates are both ministerial in nature and always reliable would have been entirely familiar to the fact finder in this case, a judge, as well as to the prosecutor and defense counsel. Certificates such as those admitted in this case are a staple in virtually every drug case; they assure the fact finder, to a degree that virtually no amount of circumstantial evidence can, that the charged substance is in fact a particular illegal drug.

The Commonwealth called seven witnesses, all police officers, in its case-in-chief. None testified to any expertise or training in chemical analysis, and none was involved in generating the drug certificates used at trial. There was no evidence of “field tests” performed on the substances purchased by Trooper Rivera or seized from the defendant’s residence. Contrast Commonwealth v. Connolly, 454 Mass. 808, 831 (2009).¹⁵ None of the officers observed the effects of the substances on anyone ingesting them. See Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) (“great weight of authority in this country” permits “an experienced user of a controlled substance to testify that a substance that he saw and used was a particular drug” [emphasis added]). What the police witnesses did say concerning the chemical composition of the substances at issue is that they relied on the drug certificates for their testimony that the substances they purchased or seized were “drugs” or “cocaine.”

The principal witness for the prosecution, Trooper Rivera, testified in general terms that he had “quite a bit of training having to do with identifying, tracking, and monitoring narcotics operations,” that he was “familiar with crack cocaine,” as well as “the terminology used by dealers and users regarding purchasing and selling crack cocaine on the streets of Springfield,” and that he had previously made hundreds of undercover purchases of crack cocaine.¹⁶ Rivera also testified that, based on his “training and experience,” the substance in the bag he purchased on July 7, 2005, was “consistent with crack cocaine.”¹⁷ However, when pressed on cross-examination, Rivera stated: “This is how I determine those drags were in fact drugs, by the certificate of analysis that was the analysis that was performed by a chemist.” When asked how he knew that the substances that he purchased on October 18, 2005, were the same “drugs” entered in evidence, he stated: “Again, the form — the custody form which was filled out indicates that. And also based on the lab number which corresponds with the lab numbers which are on the drags themselves, and the envelope which is filled out in the name of Jorge Vasquez, all indicate that these are the drags.”

Rivera’s testimony that the substance he purchased on July 7 was “consistent with cocaine” was probative of the distribution charges. The judge did not, however, make a finding, prior to Rivera’s testimony, that Rivera’s experience permitted him to offer an opinion that the substance was “cocaine.” See Commonwealth v. Dawson, supra (when police or drag-user witness testifies as to nature of substance, judge “will first have to make a finding” that witness’s experience with drag would “permit him to give an opinion as to what drug a particular substance was;” qualified witness’s “knowledge and competence” and “lack of training in chemical analysis, will bear on the weight to be given to his testimony”). See also note 17, supra. Moreover, “it would be a rare case in which a witness’s statement that a particular substance looked like a controlled substance would alone be sufficient to support a conviction.” Commonwealth v. Dawson, supra. See Commonwealth v. Melendez-Diaz, 76 Mass. App. Ct. 229, 233 (2010) (admission of drug certificates not harmless beyond reasonable doubt where “word ‘cocaine’ frequently was used by the police, but at no time did the officers cite any objective evidence, criteria, or field tests; they did not articulate how their expertise permitted them to identify the substances as cocaine”); Cook v. United States, 362 F.2d 548, 549 (9th Cir. 1966) (noting “judicially” that “whether or not a powder or substance is a narcotic cannot be determined by mere inspection of its outward appearance”).

Mistaken identification of cocaine by trained and experienced law enforcement personnel is not unknown in the annals of our law. See, e.g., Commonwealth v. LaVelle, 414 Mass. 146, 148 (1993) (undercover informant purchased substance police detectives “presumed to be cocaine” but that laboratory test proved was another substance); Care & Protection of Frank, 409 Mass. 492, 495-496 (1991) (police seized powdery substance from mother that they believed was cocaine but that laboratory tests proved was another substance). Cf. Commonwealth v. Scott, 428 Mass. 362, 363 (1998) (defendant sold “bag which purportedly contained cocaine but actually contained baking soda”). See also G. L. c. 94C, § 32G (prohibiting possession with intent to distribute counterfeit substance).¹⁸

As to the substance seized from the defendant’s apartment on October 20, 2005, the drug certificate for that was introduced through Trooper Colon, about whose specific experience and training in investigating the distribution of narcotics or in identifying substances as narcotics, if any, there was no testimony. Cf. Commonwealth v. Dawson, supra. The drug certificate identifying the substance as cocaine was the only evidence pertaining to the substance’s chemical nature.¹⁹ On this record we cannot say that the drug certificates had no effect on the fact-finding judge, and did not contribute to the verdicts.

To be sure, in addition to the drug certificates, other evidence tied the defendant to wrongdoing of some sort, specifically drug dealing. The doors to the defendant’s apartment, as multiple officers testified, were barricaded, and before the October 18 purchase there were several men hovering on the stairs of the building who asked Rivera his purpose before permitting him to proceed to the fourth floor. Evidence seized from 284 Dwight Street Extension included a scale, rubber bands, a substantial amount of cash, sandwich bags, and a walkie-talkie — all relevant on the issue of distribution. But none of this properly admitted evidence established that the substances purchased and seized were “cocaine,” as the indictments charged.²⁰ See, e.g., Commonwealth v. Soares, 384 Mass. 149, 152-153 n.4, 156 (1981) (discussing evidence that defendant was conspirator in alleged drug distribution operation, and noting in passing that police seized in certain residence, among other things, plastic bag, large sum of money, bills, scale, and package of white powder identified by laboratory analysis as methamphetamine). This is not a case where the facts independent of the drug certificates overwhelmingly prove the nature of the substances sold to the undercover police or recovered from the defendant’s apartment. Contrast Commonwealth v. Doherty, 411 Mass. 95, 102 (1991), cert, denied, 502 U.S. 1094 (1992), quoting Francis v. Franklin, 471 U.S. 307, 325-326 (1985) (erroneous intent instruction harmless beyond reasonable doubt where “principals’ intent was not in dispute” because facts “ ‘overwhelmingly preclude[d]’ the absence of an intent to kill” on part of principals). Cf. Commonwealth v. Depina, ante 238, 249-250 (2010). To conclude, as the dissent is willing to do, post at 373 (Cordy, 1, dissenting in part and concurring in part), that the only direct evidence that the white powder purchased or seized was cocaine, namely, uncontroverted scientific evidence that the Legislature has declared to be prima facie proof that the powder is cocaine, see G. L. c. 22C, § 39, meant little or nothing to the fact finder would turn the harmless error standard on its head. To reach such a conclusion beyond a reasonable doubt in this case would eviscerate the standard altogether.

We place little weight on defense counsel’s decision not to challenge the admission of the drug certificates. The certificates were admitted by a judge who was the trier of fact at a time when Massachusetts law provided that the admission of drug certificates without an opportunity to cross-examine the chemical analyst who prepared them did not violate the confrontation clause of the Sixth Amendment. See Verde, supra at 283-284. Even so, the defendant did not stipulate that the substances were, in fact, cocaine. See Melendez-Diaz, supra at 2542 (defense attorneys and their clients “will often stipulate to the nature of the substance in the ordinary drug case”). The Commonwealth’s burden of proving every element of its case cannot be transferred to the defendant because of his counsel’s choice of defense. Commonwealth v. Shea, 398 Mass. 264, 269 (1986) (“defendant’s theory of his case cannot relieve the Commonwealth of its burden of proving every element of a crime beyond a reasonable doubt”).²¹ Cf. Melendez-Diaz, supra at 2540 (“More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court”).

We disagree with the Commonwealth that reversal is not required because the chemical nature of the substances was “an uncontested issue at trial.” The identity of the substances purchased or seized was very much a live issue, as the Commonwealth’s case depended on it. By giving the defendant the benefit of the harmless beyond a reasonable doubt standard, as we have, the defendant is effectively in the same position as if he had objected to the admission of the drug certificates. A defendant who objects to a Federal (or State) constitutional error that goes to the heart of the government’s case has no further obligation, if he wishes to challenge that error on appeal, to contest the issue. There is, and should be, no burden on a defendant to continue to object to evidence at the risk of losing his constitutional rights.²² In the case of a preserved constitutional error, as we have here, the constitutional error cannot go unchecked on appeal because the defendant did not build his defense around it.

5. Conclusion. The judgments are reversed, the verdicts are set aside, and the cases are remanded to the Superior Court for a new trial consistent with this decision.

So ordered.

2 In Crawford v. Washington, 541 U.S. 36, 53-54 (2004) {Crawford), the United States Supreme Court held that admission of “testimonial statements” against a criminal defendant without testimony by the declarant at trial is prohibited by the confrontation clause unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant.

3 The petitioner in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz), had appealed from a ruling by the Appeals Court, Commonwealth v. Melendez-Diaz, 69 Mass. App. Ct. 1114 (2007), S.C., 76 Mass. App. Ct. 229 (2010), upholding his convictions of distributing and trafficking in cocaine, a decision reached by the Appeals Court in reliance on Commonwealth v. Verde, 444 Mass. 279 (2005) {Verde). See Melendez-Diaz, supra at 2531. On remand, the Appeals Court held that the admission of the drug certificates in that case was not harmless beyond a reasonable doubt, and reversed the defendant’s convictions. See Commonwealth v. Melendez-Diaz, 76 Mass. App. Ct. at 235.

4 The defendant subsequently applied for further appellate review with regard to the sufficiency of certain evidence. We denied his application.

5 We acknowledge the amicus briefs filed by the Committee for Public Counsel Services and Pomerleau Wood LLP on behalf of the defendant.

6 Each drug certificate introduced in evidence was prepared as a notarized affidavit signed by a State police crime laboratory chemist and stated, among other things, that the substance analyzed was “Cocaine, a derivative of coca leaves, and a Class B Controlled Substance as defined under Chapter 94C, Section 31 of the General Laws.” The drug certificates also bore the following legend: “Chapter 22C, Section 39 A certificate by a chemist of the department of the result of an analysis made by him of a drug furnished him by a police officer of the department, signed and sworn to by such chemist, shall be prima facie evidence of the composition, quality, and weight of such drug” (emphasis added).

7 Some constitutional errors amount to “structural error which defies analysis by harmless error standards.” Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995), citing Sullivan v. Louisiana, 508 U.S. 275, 280-282 (1993). The error at issue here is not structural. See Melendez-Diaz, supra at 2542 n.14 (declining to address “in the first instance” question “whether the error [in admitting drug certificates] was harmless”).

8 The trial in this case occurred before the Supreme Court granted certiorari in Melendez-Diaz, supra. See note 3, supra, and accompanying text. Because the judge was bound by Verde, the outcome would be no different had the trial occurred after the Supreme Court had granted certiorari, but before it had issued the Melendez-Diaz decision.

9 Other State courts have applied a similar futility analysis. See, e.g., St. Pierre v. State, 96 Nev. 887, 890-892 (1980), quoting United States v. Wanger, 426 F.2d 1360, 1360 (9th Cir. 1970) (excusing failure to object where State court’s interpretation of Federal Constitution was binding on trial court at time of trial, but was abrogated by Supreme Court while case was on direct appeal; objection “would have been futile” as erroneous jury instruction “had been upheld by this court on prior occasions”; court refused to fault defendant or his attorney for failure to object to instructions “which applied the law as it was firmly established” or to request instructions which, “at the time of trial, would have been inconsistent with the law as it then existed”); Black v. State, 816 S.W.2d 350, 362-364 (Tex. Crim. App. 1991) (same; objection “would have been an effort in futility”; given “settled state” of State case law interpreting Federal Constitution at time of trial, court refused to fault defendant or his attorney for failure to object; under “established precedent,” trial judges “would have been correct in overruling the objection”). Cf. State v. Goodyear, 100 Ariz. 244, 247-248 (1966) (excusing failure to object where objection “would have been futile” given “established rule of evidence” that was abrogated after trial by Supreme Court decision); People v. Hillery, 62 Cal. 2d 692, 711-712 (1965) (same).

10 The Commonwealth points to several of our post-Verde decisions that, it maintains, should have put defense counsel on notice that the drug certificates were “testimonial.” See Commonwealth v. Robinson, 451 Mass. 672, 678-680 (2008) (police testimony of statement made by unavailable witness not testimonial under Crawford where, among other things, statement was made without police prompting); Commonwealth v. Lao, 450 Mass. 215, 224-227 (2007) (wife’s statements to police about defendant’s actions testimonial under Crawford but her statements to third party not testimonial); Commonwealth v. DeOliveira, 447 Mass. 56, 58 (2006) (minor rape complainant’s statement to emergency room personnel not testimonial under Crawford). In those cases we did comment on the uncertain scope of Crawford, but none concerned the admissibility of drug certificates, and nothing in any of the cases relied on by the Commonwealth is incompatible with our ruling in Verde, or suggests that we doubted Verde’s continued viability.

11 See, e.g., United States v. Ellis, 460 F.3d 920, 923-927 (7th Cir. 2006) (documents indicating that medical tests showed presence of drugs in defendant’s blood and urine not testimonial under Crawford, despite having been prepared in contemplation of prosecution); Pruitt v. State, 954 So. 2d 611, 616-617 (Ala. Crim. App. 2006) (drug certificate not testimonial under Crawford and admissible under business records exception to hearsay rule); People v. Geier, 41 Cal. 4th 555, 607 (2007), cert, denied, 129 S. Ct. 2856 (2009) (report of deoxyribonucleic acid [DNA] test results not testimonial); State v. Cunningham, 903 So. 2d 1110, 1119-1121 (La. 2005) (statute allowing admission of drug certificate as prima facie evidence unless defendant subpoenas analyst before trial does not violate confrontation rights under Crawford); State v. O’Maley, 156 N.H. 125, 139-140 (2007), cert, denied, 129 S. Ct. 2856 (2009) (report of blood test results not testimonial); State v. Dedman, 136 N.M. 561, 569 (2004) (same); State v. Forte, 360 N.C. 427, 435, cert, denied, 549 U.S. 1021 (2006) (same for report of DNA test results); Magruder v. Commonwealth, 275 Va. 283, 296-306 (2008), vacated and remanded sub nom. Briscoe v. Virginia, 130 S. Ct. 1316 (2010) (where State submits drug certificate in evidence, State statute granting defendant certain rights adequately protects defendant’s rights under confrontation clause). Cf. Commonwealth v. Carter, 593 Pa. 562, 569 n.3, 574 (2007) (drug certificate admissible under business exception to hearsay rule and admission without trial testimony of analyst does not violate confrontation clause, applying pre-Crawford law on collateral review).

12 To that end, we “look to factors such as ‘the importance of the evidence in the prosecution’s case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; . . . and the weight or quantum of evidence of guilt.’ ” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010), quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). Although we have articulated factors guiding our review for harmless error beyond a reasonable doubt, there is no uniform standard for all cases; the results of our review are determined by the circumstances of each case. See Commonwealth v. Mahdi, 388 Mass. 679, 697 (1983) (factors listed above, though “useful,” are “not exclusive or exhaustive”).

13 As we discuss, infra, there was no comparable evidence concerning the substance seized on October 20, the day the search warrant was executed.

14 Cf. Commonwealth v. Repoza, 400 Mass. 516, 522 n.7, cert, denied, 484 U.S. 935 (1987) (erroneous instruction on intent not harmless beyond reasonable doubt where defendant did not concede that murder, not manslaughter, had occurred, because there is “always an element of intent for the jury to determine in murder cases in which the defendant does not concede that a conviction of murder in the first or second degree would be warranted if the proper person were prosecuted” [emphasis added]).

15 But see National Research Council, Strengthening Forensic Science in the United States, A Path Forward, 134-135 (2009) (“Most controlled substances are subjected first to a field test for presumptive identification. This is followed by gas chromatography-mass spectrometry (GC-MS), in which chromatography separates the drug from any diluents or excipients, and then mass spectrometry is used to identify the drug” [emphases added]). See also Callaham v. United States, 937 A.2d 141, 147 (D.C. 2007) (“a positive field test, standing alone, [does not] prove beyond a reasonable doubt that the substance was cocaine”).

16 Rivera testified that he asked the defendant for an “eight ball” on both July 7 and October 18, and received the purported drugs in return.

17 Protocols for the analysis of cocaine, heroin, and marijuana samples promulgated by the State police require that a chemical analysis be conducted for each substance; identification of the substance on the basis of a visual inspection alone is not authorized.

18 The Committee for Public Counsel Services (CPCS) has provided us in its amicus brief with examples of numerous unreported cases in which defendants were arrested and charged with a violation of the controlled substances statutes of the Commonwealth because a police officer believed that a substance was an illegal controlled substance, but where subsequent testing by the Commonwealth resulted in a negative finding.

19 Trooper Colon made one conclusory reference to the substance seized on October 20, 2005, as “some narcotics.” Immediately thereafter, he referred to what he seized as one “clear plastic bag with white powder substance.” Powdered cocaine is a nondescript white powder, visually indistinguishable from other white powders. See Cook v. United States, 362 F.2d 548, 549 (9th Cir. 1966).

20 Although it appears from the officers’ testimony for the Commonwealth that apartment 4L had been under investigation for some time for suspected drug-related activity, the fact of the investigation says nothing about the nature of the substances seized and purchased by law enforcement authorities.

21 The judge, the prosecutor, and defense counsel all likely would have viewed the drug certificates objectively as establishing beyond a reasonable doubt the element of the crimes of distributing and possessing “cocaine.” See G. L. c. 94C, §§ 32A, 34.'There would have been no reason for the Commonwealth or defense counsel to dwell on the point, and there would have been no reason for the judge to look beyond the certificates to find that the Commonwealth had proved the “cocaine” element of the charged crimes beyond a reasonable doubt.

22 It would also serve no practical purpose in effect to require a defendant who has objected to evidence (the identification of the white powder) to repeat at each point in the trial when white powder is mentioned, “I do not concede that it is cocaine.”