Com. v. Depina

917 N.E.2d 781

75 Mass. App. Ct. 842

COMMONWEALTH v. Deniz DePINA.¹

No. 08-P-1140.

Appeals Court of Massachusetts, Suffolk.

Argued June 3, 2009.

Decided December 8, 2009.

Kathleen M. O'Connell, Beverly, for the defendant.

Joseph M. Ditkoff, Assistant District Attorney (Yaw Gyebi, Jr., Assistant District Attorney, with him) for the Commonwealth.

Present: MILLS, GREEN, & SIKORA, JJ.

SIKORA, J.

A Superior Court jury convicted the defendant, Deniz DePina, of trafficking in cocaine in a school zone. The defendant appeals upon claims that (1) a search warrant did not authorize seizure of his cellular telephone, (2) a police officer unlawfully searched the cellular telephone by answering a call, (3) the trial judge erroneously admitted in evidence the substance of the officer's conversation with the caller, (4) the admission of certificates of drug analysis without the analyst's testimony violated his right to confrontation under the Sixth Amendment to the United States Constitution, and (5) the convictions lacked the support of sufficient evidence of constructive possession (the theory upon which the Commonwealth proceeded). Only the claim related to the certificates of analysis has merit. Under the United States Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), admission of the certificates of analysis without supporting testimony was a violation of the confrontation clause of the Sixth Amendment. Because we conclude that the erroneous admission of the certificates was not harmless beyond a reasonable doubt, we reverse. We address the defendant's other arguments because they are likely to recur at any retrial.

Procedural background. A grand jury indicted the defendant for trafficking in cocaine (fourteen grams or more but less than twenty-eight grams) in violation of G.L. c. 94C, § 32E(b)(1), and for doing so in a school zone, in violation of G.L. c. 94C § 32J. The defendant filed a motion to suppress evidence obtained by police through the seizure of his cellular telephone. A Superior Court judge denied the motion. A second Superior Court judge presided over the defendant's jury trial. The defendant moved in limine to exclude statements made by an unidentified person who had called the defendant's cellular telephone during the execution of a search warrant and had unknowingly spoken to a police officer answering the phone. He moved also in limine to exclude certificates of analysis of cocaine. He argued that admission of the certificates without the testimony of the chemist who had created them would violate his Sixth Amendment right to confront adverse witnesses. The trial judge denied both motions. During the trial, the defendant renewed his objections to the challenged evidence.

The defendant moved for a required finding of not guilty at the close of both the Commonwealth's evidence and all the evidence. The judge denied both motions.²

Factual background. 1. Search warrant application. Officer Kevin Jones of the Boston police department signed the affidavit in support of the search warrant application. His affidavit included the following information. In early 2006, a confidential informant under his supervision made a series of controlled buys in the third-floor apartment of 59 Burrell Street in the Roxbury section of Boston. On each occasion, the informant entered the building without narcotics in his³ possession and emerged with crack cocaine. Less than three days prior to the application for the search warrant, the informant made the last controlled buy. Through a window, officers observed him climb the stairs to the third floor of the building.

The informant identified the defendant as the person who had sold him the cocaine. The informant related also that, prior to the controlled buys, he had purchased crack cocaine from the defendant at the same third-floor apartment of 59 Burrell Street. The informant had reported also that the defendant had used a Chrysler Sebring convertible automobile to deliver crack cocaine to him (the informant) and "to various locations in and around Boston."

Officers learned through surveillance of 59 Burrell Street that, on numerous occasions, people entered the building, ascended the stairs, and left the building after a short period of time. Officer Jones characterized this activity as consistent with narcotics purchases. During their surveillance, officers never observed lights or any activity inside the second-floor apartment but consistently observed both inside the third-floor apartment. Therefore Officer Jones believed that the people observed climbing the stairs had visited the third-floor apartment. Officers saw the defendant enter and leave the building numerous times.

A clerk magistrate of the Boston Municipal Court issued a search warrant for the third-floor unit. The warrant authorized a search of the apartment for the following: "Crack Cocaine ... all books, papers, records, documents, currency, implements, paraphernalia, (as defined by G.L. c. 94C), . . . related to the illegal possession, manufacture, or distribution of cocaine; [and] any implement used for the cutting, weighing, cooking, storage, or bagging of cocaine." (Emphasis supplied.) It authorized also the search of the defendant's person.

2. Motion to suppress evidence. For the purpose of the hearing upon the motion to suppress, the parties stipulated to the truth of the grand jury testimony relating to the execution of the warrant. The motion judge found that, on the day after issuance of the warrant, police officers had watched the defendant park the Chrysler Sebring across from 59 Burrell Street and get out of the automobile; the officers then had approached the defendant, informed him of the warrant, and had taken his cellular telephone and house keys from him. The judge found that the cellular telephone had rung continuously as the officers searched the apartment, that one of the officers had answered a call, and that the caller had asked for a "big fifty," a term for fifty dollars worth of crack cocaine.

3. Evidence at trial. The jury could have found as follows. Officer Jones had surveilled 59 Burrell Street about ten times prior to execution of the warrant. The structure was a three-story dwelling with a separate apartment on each floor. He had seen a white Chrysler Sebring convertible parked in front of the building on multiple occasions and had seen the defendant enter and leave the car more than once.

At about 5:00 P.M. on February 8, 2006, and with the warrant, Jones and other officers parked near the building and waited for the defendant to arrive. They saw no one enter or leave while they waited. After an interval of twenty or thirty minutes, the defendant parked the white Chrysler Sebring convertible across the street, left the car, and walked toward the building with a set of keys in one hand. The officers met him in front of the building and informed him of the warrant. He told them that he did not live at the address and that he had come there to work in the second-floor apartment. The defendant then looked toward the third floor of the building and yelled repeatedly, "[H]ey, hey, hey." Sergeant Detective Paul Murphy took the keys from the defendant's hand and another officer handcuffed him. Officer England found two cellular telephones on the defendant's person and seized them.

Officer Murphy used one of the defendant's keys to unlock the building's main door. The officers then went to the third floor and Murphy knocked on the door to the apartment and announced his presence. He received no response, so he used another of the defendant's keys to open the door. A group of men were inside the apartment watching television. The unit contained three bedrooms. An elderly couple were in one of the bedrooms; the officers did not search it.

The officers searched only one of the three bedrooms. Its door was locked. Officer Murphy again used one of the defendant's keys to unlock it. The bedroom contained a bed, a small bureau, an end table with a television on it, and a small closet. The closet contained a pair or two of men's pants, one or two men's shirts, and some baseball caps. An officer opened a drawer in the end table and found a large bag which contained 13.25 grams of apparent crack cocaine. He found also a plastic bag which contained seven smaller plastic bags of apparent crack cocaine. A total of .99 grams of the substance was in the smaller bags. The drawer also held two boxes of sandwich bags and a third plastic bag with numerous cut plastic bags inside of it. Two razor blades and a box of baking soda were on the bureau.

During the search, one of the defendant's cellular telephones rang several times. Officer England answered one of the calls and the caller asked him for "a big fifty." Officer England told the caller to stop by the apartment to pick up the "big fifty" and the caller replied, "Okay."

At trial, Officer Paul Quinn offered the following expert testimony about cocaine distribution. Cocaine distributors sometimes use cut sandwich bags to package crack cocaine. Dealers use baking soda as an ingredient of crack cocaine and razor blades to cut it. Cellular telephones are a common tool of the cocaine distributor. Buyers often ask for cocaine over the phone without using the word "cocaine." Distributors sell crack cocaine in "twenties," "forties," "fifties," and "eight balls." A "fifty" is .5 grams of crack cocaine and costs fifty dollars. Twelve to fourteen grams would be an unusually large purchase for personal use.

Discussion. 1. Seizure of the cellular telephone. The defendant argues that the seizure of a cellular telephone from his person was unlawful because the search warrant did not specifically authorize a search for phones. He asserts that a cellular telephone was not an "implement[] ... related to the illegal possession ... or distribution of cocaine," for which the...