Commonwealth v. Davis

83 Mass.App.Ct. 484

985 N.E.2d 1216

COMMONWEALTH

v.John DAVIS.

No. 11–P–1746.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 9, 2012.

Decided April 11, 2013.

James E. Methe for the defendant.

Zachary Hillman, Assistant District Attorney (Dean A. Mazzone, Assistant Attorney General, with him) for the Commonwealth.

Present: BERRY, KAFKER, & GREEN, JJ.

BERRY, J.

A Superior Court jury convicted the defendant of trafficking in 200 grams or more of cocaine, G.L. c. 94C, § 32E( b )(4), and doing so in a school zone, G.L. c. 94C, § 32J. On the defendant's consolidated appeal from his convictions and from the denial of his motion for a new trial, the Commonwealth concedes that the admission of certificates of drug analysis (drug certificates) violated the defendant's constitutional confrontation rights under Melendez–Diaz v. Massachusetts, 557 U.S. 305, 310–311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)( Melendez–Diaz ). We reject the Commonwealth's argument that the Melendez–Diaz error was harmless beyond a reasonable doubt. Accordingly, we reverse the defendant's convictions.

Notwithstanding the reversal, we address certain issues that remain live and will affect any further proceedings. Specifically, we address three points involving the denial of the defendant's motion to suppress recorded oral communications between a confidential informant (CI), the defendant, and a codefendant, Victor Alvarado. First, the defendant argues that the averments in State Trooper Steven M. Racki's affidavit in support of a warrant for the one-party consensual recording of conversations under Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029 (1987) (Blood warrant), failed to demonstrate the required nexus with organized crime. Second, the defendant contends that the Blood warrant was overbroad in scope. Third, the defendant argues that because the affidavit in support of the Blood warrant contained certain factual discrepancies (principally relating to telephone record information), the motion judge improperly declined to hold a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (Franks hearing), to test the veracity of statements in the trooper's affidavit. We affirm the denial of the motion to suppress and the denial of the motion for a Franks hearing.

In addition, we address the defendant's contention that double jeopardy barred the trial below and, hence, the convictions from which he now appeals. For reasons that follow, we conclude that there is no such double jeopardy obstacle.

1. Background. We briefly summarize the relevant background concerning the motion to suppress and shall supplement this background as needed in our analysis of particular issues. The defendant was arrested in connection with an undercover investigation by the State police in which cocaine was bought by the CI. After a series of sample controlled “buys” under police direction, Alvarado indicated to the CI that he could procure a kilogram of cocaine on short notice, and the CI advised Alvarado that he would be in touch about a purchase. Based on the large quantity of the planned purchase, Trooper Racki filed an affidavit in support of, and procured, a Blood warrant authorizing the tape recording of oral communications between the consulting CI and other persons—including, but not limited to, Alvarado—involved in the deal for the kilogram purchase.¹

On the day set for the controlled buy of the kilogram of cocaine, Trooper Racki, a surveillance team, and the CI arrived at the housing development where the transaction was to take place. The CI, under the Blood warrant, was equipped with a body wire to record his conversations. A car arrived at the site. The defendant was driving, and the two passengers were Alvarado and one Reggie Bragg.² The CI entered the car. The defendant and Alvarado produced the cocaine. The CI placed a small amount on his tongue to test the quality. The CI indicated to the individualsin the car that the cocaine was of acceptable quality. The body wire recorded the entire conversation that took place in the car among the CI, the defendant, Alvarado, and Bragg. The CI then exited the car under the guise of obtaining $24,000 in cash to pay for the cocaine. At that point, the CI met with Trooper Racki and confirmed to the trooper that the cocaine was in the car, commenting, “That shit's good.” The body wire recorded this conversation between the CI and Trooper Racki.

Surveillance officers then converged upon the car and arrested the defendant, Alvarado, and Bragg. Seized from the car were two bricks of a white, powdery substance which laboratory analysis confirmed was cocaine. Each brick of cocaine was covered in cellophane and wrapped with duct tape and wax—a manner of packaging that, Trooper Racki testified at trial, is characteristic of the bulk sale of cocaine at the kilogram level of weight. Also seized from the rear cargo area of the car was $29,000 in cash. Seized from the defendant's person was a ledger that contained names, notations, monetary figures, and references to cocaine in street vernacular.

2. Harmless error beyond a reasonable doubt analysis. In determining whether the constitutional error in the admission of the drug certificates was harmless beyond a reasonable doubt, the standard of review is 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. Vasquez, 456 Mass. 350, 360, 923 N.E.2d 524 (2010), quoting from Commonwealth v. Tyree, 455 Mass. 676, 701, 919 N.E.2d 660 (2010). The Commonwealth must establish that other properly admitted evidence of guilt was so “overwhelming” as to “nullify any effect” that the improperly admitted drug certificates might have had on the jury. Commonwealth v. Vasquez, supra at 362, 923 N.E.2d 524, quoting from Commonwealth v. Tyree, supra at 704 n. 44, 919 N.E.2d 660.

The Commonwealth cites several pieces of evidence which, it submits, rendered the admission of the drug certificates harmless beyond a reasonable doubt. These include: (1) that the CI, an experienced cocaine user, conducted a taste test of the cocaine and confirmed, “That shit's good”; (2) Trooper Holland's testimony at trial that the substance seized had the appearance and texture of cocaine; (3) Trooper Racki's testimony that the substance—formed as a brick and sheathed in cellophane, duct tape, and wax—was packaged in a manner consistent with the distribution of individual kilograms of cocaine; (4) that the $29,000 in cash found in the car was suggestive of the proceeds from cocaine distribution; and (5) the defendant's ledger, which, according to the testimony of the Commonwealth's expert, Sergeant Feeney, resembled the type of record frequently used by dealers to keep track of transactions.

We conclude that these pieces of evidence, weighed either individually or in combination, were not so powerful as to “nullify any effect” of the admission of the drug certificates. See Commonwealth v. Vasquez, supra at 362, 923 N.E.2d 524, quoting from Commonwealth v. Tyree, supra at 704 n. 44, 919 N.E.2d 660.

Of the foregoing evidence, the Commonwealth relies most heavily on the CI's taste test, which identified the substance as high quality cocaine. However, this subjective taste test lacks any scientific reliability. Indeed, even a positive field test—which, in contrast, has scientific underpinnings, and which may be conducted by a police officer experienced in drug investigations—does not mean, per se, that the error in admitting a drug certificate is harmless beyond a reasonable doubt. See Commonwealth v. Fernandez, 458 Mass. 137, 151 n. 20, 934 N.E.2d 810 (2010) (“no appellate case from Massachusetts has accepted as reliable field test results, regardless of the purpose for which they are offered”); Commonwealth v. King, 461 Mass. 354, 358–359, 960 N.E.2d 894 (2012) (police field test not dispositive in absence of testimony on officer's expertise and type of field test kit used); Commonwealth v. Billings, 461 Mass. 362, 364–365, 960 N.E.2d 900 (2012) (police field test not sufficient without testimony on officer's expertise and testimony on actual test results). Compare Commonwealth v. Connolly, 454 Mass. 808, 831, 913 N.E.2d 356 (2009) (field tests one factor in nullifying effect of drug certificates in circumstances where testing officers had seventeen and thirteen years, respectively, of narcotics investigation experience and both were subject to cross-examination); Commonwealth v. Casali, 459 Mass. 139, 147, 943 N.E.2d 936 (2011) (police field test rendered drug certificates harmless beyond reasonable doubt only in combination with defendant's own testimony that seized substances were heroin and marijuana, defense counsel's concession on that point, and evidence that defendant was admitted to hospital for symptoms of heroin withdrawal one day after crime). Given that a field test may not meet the constitutional harmless error standard, a fortiori, a lay taste test—even when conducted by an experienced cocaine user—does not meet the grade of proof required to render the error in admitting the drug certificates harmless beyond a reasonable doubt.

The remaining pieces of evidence to which the Commonwealth cites, supra, fare no better in proving harmless error. Trooper Holland's trial testimony regarding the appearance of the substance, while relevant in light of his experience in the field, is not the type of potent evidence required to render constitutional error harmless beyond a reasonable doubt. See Commonwealth v. Dawson, 399 Mass. 465, 467, 504 N.E.2d 1056 (1987) (“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...