Com. v. Muniz

921 N.E.2d 981

456 Mass. 166

COMMONWEALTH v. Exsel MUNIZ.

SJC-10553

Supreme Judicial Court of Massachusetts, Hampden.

Argued December 8, 2009.

Decided March 2, 2010.

Susan E. Taylor, New Bedford, for the defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Kathryn Hayne Barnwell, for John Dessources, amicus curiae, submitted a brief.

Debra S. Krupp, Boston, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

IRELAND, J.

In 2007, the defendant was tried and found guilty of unlawful possession of a firearm, a firearm without a firearms identification card, ammunition without an identification card, a class B controlled substance (cocaine), and a class D controlled substance (marijuana). He was also convicted on two indictments charging armed robbery while masked. The defendant appealed and his convictions were affirmed. Commonwealth v. Muniz, 74 Mass.App.Ct. 1110, 905 N.E.2d 604 (2009). We granted the defendant's application for further appellate review limited to whether, in light of the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (Melendez-Diaz), drug and ballistics certificates, admitted in evidence over the defendant's objection that they violated his right under the Sixth Amendment to the United States Constitution to confront and cross-examine witnesses, were harmless beyond a reasonable doubt. We conclude that the admission of the certificates was not harmless beyond a reasonable doubt with regard to the defendant's convictions of unlawful possession of a firearm and unlawful possession of cocaine, and we reverse his convictions. We reverse his conviction of unlawful possession of marijuana on separate grounds. We affirm his conviction of unlawful possession of ammunition because the error in admitting the ballistics certificate with regard to that conviction was harmless beyond a reasonable doubt.

Facts and procedural history. We present the facts the jury were warranted in finding only insofar as they aid in understanding the issues before us, reserving details for our discussion.

On September 1, 2005, as part of an investigation of the robbery at a store, Holyoke police officers proceeded to a nearby apartment building where the defendant resided. There, they saw the defendant standing in front of the building's doorway. They noticed a strong odor of marijuana. One officer saw the defendant drop something, and a marijuana cigarette was found on the ground near the defendant's foot. In a subsequent search of the defendant's apartment conducted pursuant to a search warrant, police found a loaded handgun hidden inside a stove vent, a magazine, and fourteen cartridges. A police officer testified that he found a "small bag of cocaine" and "two small bags of marijuana."

A State police ballistics expert signed a certificate stating that the gun was a nine millimeter Beretta semiautomatic pistol with a five-inch barrel; that he test-fired the gun using one of the cartridges the officers found and two live cartridges from the inventory of the firearms identification section of the State police; and that "[n]o malfunctions were noted." A Department of Public Health assistant analyst signed a certificate stating the latter two substances the officer found were cocaine and marijuana.¹ These certificates were admitted in evidence over the defendant's objection.

The defendant appealed from his convictions arguing, in relevant part, that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford), the admission of the drug and ballistics certificates violated his constitutional rights. Id. at 51-52, 124 S.Ct. 1354 ("ex parte in-court testimony or its functional equivalent" such as affidavits, confessions, depositions, and pretrial statements are testimonial and subject to the confrontation clause). In his appeal, the defendant noted that Melendez-Diaz was before the United States Supreme Court, but no decision had issued.

In an unpublished memorandum and order issued pursuant to its rule 1:28, the Appeals Court affirmed the defendant's convictions, stating that, with regard to the admission of the certificates, it was bound by this court's decision in Commonwealth v. Verde, 444 Mass. 279, 280, 283-284, 827 N.E.2d 701 (2005) (Verde) (drug certificates of analysis introduced in evidence at trial were business records and did not implicate the confrontation clause). Commonwealth v. Muniz, 74 Mass.App.Ct. 1110, 905 N.E.2d 604 (2009). However, the court acknowledged the Supreme Court's pending decision in Melendez-Diaz and preserved the defendant's right to seek postconviction relief on the issue of the constitutionality of the admission of the certificates in evidence. When the Melendez-Diaz decision issued, the Court overruled our holding in Verde, stating that drug certificates were the functional equivalent of an affidavit and therefore testimonial. Melendez-Diaz, supra at 2532. Admission of certificates without a showing that the analyst was unavailable and that the defendant had a prior opportunity to cross-examine him or her was error. Id.

Discussion. The Commonwealth concedes, as it must, that it was error to admit the ballistics and drug certificates. Because the defendant objected to the admission of the certificates on constitutional grounds,² we review the errors to determine whether they were harmless beyond a reasonable doubt. Commonwealth v. Molina, 439 Mass. 206, 211-212, 786 N.E.2d 1191 (2003).

When determining whether an error was harmless beyond a reasonable doubt, we consider

"`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,' Commonwealth v. Perrot, 407 Mass. 539, 549 (1990)[. O]ur focus is not on whether the jury could have convicted the defendant had the tainted evidence been excluded; 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. Dagraca, 447 Mass. 546, 554-555 (2006). . . . 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. . . . An assertion that the error is harmless . . . is most particularly vulnerable where the over-all strength of the Commonwealth's case radiates from a core of tainted evidence. See, e.g. Commonwealth v. Dagraca, supra at 554. . . ."

Commonwealth v. Tyree, 455 Mass. 676, 701-702, 919 N.E.2d 660 (2010). With these principles in mind we turn to the admission of the ballistics and drug certificates in this case.

1. Ballistics certificate. Concerning the two indictments charging possession of a firearm, the Commonwealth was required to prove that "the instrument in question [was] (1) a weapon, (2) capable of discharging a shot or bullet, and (3) under a certain length." Commonwealth v. Sampson, 383 Mass. 750, 753, 422 N.E.2d 450 (1981), citing G.L. c. 140, § 121. At issue here is whether the Commonwealth met its burden to prove that the gun was capable of discharging a shot or bullet. Concerning the ammunition the Commonwealth had to prove that the item in question was "designed for use in any firearm." G.L. c. 140, § 121.³

The Commonwealth submitted a "certificate of examination and test firing" in this case. The certificate not only stated that a test firing of the gun included the use of one of the cartridges that was found and that there were no malfunctions, but also stated that the gun and ammunition were items "within the meaning of" G.L. c. 140, § 121. The analyst who signed the certificate did "swear and affirm" that he was "qualified as a Ballistics Expert . . . in compliance with [G.L. c. 140, § 121A,] for the issuance of this certificate."⁴ Moreover, the notary public's signature was preceded by the statement: "I know this subscriber to be a qualified Ballistics Expert of the Massachusetts State Police Firearms Identification Section."

When the judge instructed the jury concerning the charges of unlawful possession of a firearm and ammunition, in addition to defining the elements that Commonwealth had to prove, she stated:

"[A] certificate has been entered in evidence, a certificate by a ballistics expert of the firearms identification section of the Department of Public Safety, and the law in Massachusetts has a statute that allows such certificate to be entered in evidence as . . . prima facie evidence as to whether or not the item furnished is a firearm . . . or ammunition as defined in Massachusetts. . . . [T]hat certificate . . . is evidence which you may consider if you wish on that issue."

The Commonwealth argues that the admission of the ballistics certificate attesting that the gun and ammunition were within the meaning of the statute was harmless beyond a reasonable doubt.

a. Firearm. At trial, the Commonwealth offered in evidence the gun itself; the testimony of the officer who found the gun that it appeared in good condition, had a round in the chamber, and was "ready to be fired"; and the ballistics certificate. The same officer testified that the gun had been sent to the State police laboratory for testing. The ballistics certificate then was introduced in evidence without further comment, other than the defendant's objection that he could not challenge the qualifications of the expert or the method used to test the gun.

Relying on cases that have stated that expert testimony is not necessary to prove that a gun meets the...