Commonwealth v. DeMATOS

77 Mass.App.Ct. 727

933 N.E.2d 992

COMMONWEALTH

v.Justin DeMATOS.

No. 08-P-204.

Appeals Court of Massachusetts,Bristol.

Argued July 22, 2010.

Decided Sept. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Joseph M. Kenneally for the defendant.

Steven E. Gagne, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, DREBEN, & KAFKER, JJ.

DREBEN, J.

Charged with trafficking in cocaine in an amount exceeding twenty-eight grams and trafficking within 1,000 feet of a school, the defendant, Justin DeMatos, was convicted of the lesser included offense of trafficking in cocaine in an amount of fourteen grams or more but less than twenty-eight grams, G.L. c. 94C, § 32E( b )(1), and was also convicted of the school zone violation. In his direct appeal, the defendant claims that he was deprived of his constitutional right of confrontation by the admission, over his objection, of certificates of drug analysis of the substances involved. His case was tried after the decision in Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005), and before the decision in Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

Postconviction, he claimed his counsel was ineffective in not seeking a Franks- Amral ¹ hearing, and he sought such a hearing in support of his motion for a new trial. The motion was denied. That denial was consolidated with his direct appeal. We affirm his convictions and the denial of his motion for a new trial.

1. Evidence at trial. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), the evidence at trial was as follows: On March 26, 2003, armed with a search warrant, ² Fall River police officers announced their presence and, after receiving no response, forced their way into the defendant's first-floor apartment at 162 McCloskey Street. Inside were three men and a pit bull terrier. Upon seeing the police, the defendant fled, carrying a pink box; some of its contents fell along the path of his flight. Among items subsequently retrieved were several vials of steroids, hypodermic needles, and a key. Police later used the key to open a safe in the defendant's apartment.

When the defendant was apprehended shortly after the chase, the pink box was next to him and contained $8,000 wrapped in a rubber band. Two golf-ball-sized plastic bags containing white powder believed to be cocaine were near the box. The police handcuffed the defendant and brought him to his apartment where he waived his Miranda rights. ³ When questioned, he told police that he did not have any money or contraband other than what was in the pink box. Police, however, found in his apartment an additional bag of white powder, $2,679, a spoon with a powder residue, baggies, and three rolled-up dollar bills. ⁴ Near the rear entrance through which the defendant had fled, police retrieved a small digital scale. The money, the three bags of white powder, the rolled-up dollar bills, the scale, the baggies, and the spoon with the residue were among the exhibits at trial and were sent to the jury. ⁵

After having been shown the bag of white powder found in the apartment, the defendant said, “Oh I forgot about that cocaine. Besides, that's just personal use.” When asked what he was doing with two and one-half ounces of cocaine, ⁶ he told the officer that he smokes cocaine all the time, and that three ounces were “no big deal to him.” According to the officer, the defendant pointed out that the police only found one-half of an ounce in his house and also stated that he was smoking cocaine when the police initially knocked on the door. The police officer in charge of the investigation (Paul Gauvin) indicated on cross-examination that he believed the defendant “was a little high” when apprehended.

Certificates of drug analysis were admitted in evidence showing that each of the three bags as well as the residue on the spoon were cocaine. According to the certificates, one of the two bags found with the defendant after his chase contained 27.79 grams of cocaine, the other bag contained 27.91 grams, and the bag found in the apartment contained 14.86 grams of cocaine (a total of 70.76 grams).

After a voir dire, a police officer with extensive experience in narcotics investigations testified that fourteen grams is one-half of one ounce and that twenty-eight grams is one ounce, that one ounce of cocaine would sell for between eight and twelve hundred dollars, and that one-half of one ounce would sell for between four to six hundred dollars. When asked whether the possession by a person of sixty-eight to seventy grams of cocaine was consistent with personal use or with distribution, his answer was distribution, and when asked whether that amount of cocaine and $10,000 in cash was consistent with personal use or with distribution, he stated it would be consistent with distribution.

2. Melendez-Diaz issue. The United States Supreme Court's decision in Melendez-Diaz requires us to hold that the admission of the drug certificates was constitutional error. The certificates were within the “core class of testimonial statements” that trigger confrontation clause protections. Melendez-Diaz, supra at 2532, quoting from Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Here, the defendant objected to their admission, and, in any event, in cases tried after the decision in Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005), and before Melendez-Diaz, the standard of review is whether the admission of the drug certificates at trial was harmless beyond a reasonable doubt. Commonwealth v. Vasquez, 456 Mass. 350, 352, 923 N.E.2d 524 (2010). The standard is strict, and the question is whether

“we can be satisfied, beyond a reasonable doubt, that the erroneously admitted certificates of analysis had little or no effect on the verdicts.... It is not enough for the Commonwealth to demonstrate that its other, properly admitted evidence was ‘sufficient’ to convict the defendant.... Rather, to establish harmlessness beyond a reasonable doubt, the Commonwealth must show that other properly admitted evidence of guilt is ‘overwhelming.’ ”

Id. at 362, 923 N.E.2d 524, quoting from Commonwealth v. Tyree, 455 Mass. 676, 701, 704 n. 44, 919 N.E.2d 660 (2010).

The Supreme Judicial Court has identified a number of factors that may be looked at, ⁷ see Vasquez, supra at 360 n. 12, 923 N.E.2d 524, but has stated “there is no uniform standard for all cases.” Ibid.

“Proof that a substance is a particular drug ‘may be made by circumstantial evidence.’ ” Commonwealth v. Charles, 456 Mass. 378, 381-382, 923 N.E.2d 519 (2010), quoting from Commonwealth v. Dawson, 399 Mass. 465, 467, 504 N.E.2d 1056 (1987). In Dawson, one of two questions reported was:

“Whether a substance can be identified as a controlled drug as defined by G.L. c. 94C, § 31 through the testimony of experienced police officers or the users of the drug rather than through laboratory analysis or testimony by a qualified chemist?”

Id. at 466-467, 504 N.E.2d 1056. The court answered the question in the affirmative adding:

“The trial judge will first have to make a finding that any police or drug-user witness's experience with a drug would or would not permit him to give an opinion as to what drug a particular substance was. If the judge finds the witness qualified, the knowledge and competence of that witness, and his lack of training in chemical analysis, will bear on the weight to be given to his testimony. We suspect 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.”

Id. at 467, 504 N.E.2d 1056. See Vasquez, supra at 365, 923 N.E.2d 524. The court in Dawson also noted that “[t]he great weight of authority in this country permits, for example, an experienced user of a controlled substance to testify that a substance that he saw and used was a particular drug.” Dawson, supra.

In this case, the defendant was a user of drugs. Indeed, he admitted to the police that he was using cocaine at the time of their initial entry-a statement buttressed by the police officer's testimony that the defendant was a little high when apprehended. The defendant stated that he smoked all the time, that he had forgotten “about that cocaine” in the apartment, that the cocaine was for his personal use, and that three ounces was not a big deal.

In these circumstances, where the defendant admitted to being a substantial user of cocaine, stated that he was using cocaine in his apartment at the time the police arrived, and when shown the drugs found in the apartment, acknowledged that he had forgotten that cocaine was there, we consider the evidence that the composition of the drugs in the apartment was cocaine was so powerful that the certificates had little or no effect on the verdicts. See Commonwealth v. Harris, 75 Mass.App.Ct. 696, 707 & n. 10, 916 N.E.2d 396 (2009) (error harmless beyond a reasonable doubt where, among other evidence, defendant had signed statement admitting substance was cocaine). Equally strong, particularly in view of the defendant's statement that “three ounces was no big deal,” is the inference that the bags of white powder found near him after he was apprehended was the same substance.

The overwhelming evidence of narcotics, including the large sum of money, the scale, the baggies, the spoon with a powder residue, and the defendant's flight, together with the defendant's admission that he was using cocaine when the police entered, and his implicit, if not explicit, admission that the drugs were cocaine lead us to conclude that the admission of the drug certificates had little or no effect in proving the substances found were cocaine. ⁸

The evidence of the certificates as to the amount of cocaine, although a more difficult question, was also, in...