Commonwealth v. Jack Westbrooks.

79 Mass.App.Ct. 417

947 N.E.2d 51

COMMONWEALTH

v.Jack WESTBROOKS.

No. 09–P–1901.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 14, 2010.Decided May 5, 2011.

Scott A. Katz for the defendant.Kristen MacIsaac, Assistant District Attorney, for the Commonwealth.Present: MILLS, GRAINGER, & FECTEAU, JJ.FECTEAU, J.

The defendant, Jack Westbrooks, appeals from convictions of four violations of the controlled substances act after a jury trial in Superior Court.¹ Specifically, the defendant first complains that the admission of certificates of chemical analysis in the absence of testimony from the analyst violated his confrontation rights and was harmful error. While admission of the certificates was error, it was harmless beyond a reasonable doubt. Second, the defendant contends that the motion judge (who was not the trial judge) erred in denying the defendant's motion to suppress the evidence obtained from the execution of a search warrant. On our review of the warrant application, there was probable cause for the issuance of the search warrant for this location, and we affirm the judge's decision to deny the motion. Therefore, we affirm the convictions.

Background.² At about 2:45 p.m. on August 25, 2006, members of the Everett police department (including Detectives Kelley and Connor) arrived at the basement door at 9 Belmont Street in Everett to execute a search warrant. After the officers knocked on the door to the basement, the defendant answered it and the officers entered. One of the officers explained to the defendant that the officers were there to execute a search warrant. The defendant “was fine; he was cooperative.” The officers explained the warrant and read the defendant his Miranda rights.

The defendant asked the officers not to ransack his apartment and agreed to give the police the items he thought they were looking for, whereupon he began to retrieve a number of Ziploc bags containing different substances and handed them to Detective Kelley. First, he retrieved a Ziploc bag from a kitchen cabinet that contained a “green leafy substance,” which Detective Kelley “believed to be marijuana.” The defendant then retrieved a second Ziploc bag of marijuana from a kitchen drawer. Next, the defendant retrieved what Kelley said were “three bags of cocaine, and then two additional bags with pills” from a small vest on the couch. One of the bags had seventy-two pills, and the other had thirty-eight pills.

The officers searched for additional drugs. Detective Connor found two small bags of a “white powdery substance” that he believed to be cocaine and a “small bag of a green leafy substance” he believed to be marijuana in the top drawer of a bureau next to the bed. In the third drawer down from the top of the same bureau he also located a bag of ten blue Percocet pills. These blue pills, which were admitted in evidence, had the word “PERCOCET” stamped on them on one side. In the same drawer, he found fifteen white Percocet pills. Detective Connor also located two bags of white Percocets in a drawer inside the stove, one bag containing 179 pills and the other containing eighty-eight pills. At the coffee table, Detective Connor discovered another “small bag of green leafy substance,” which he believed at the time to be marijuana.

Sergeant Durant found ten orange suboxone pills during the search and gave them to Detective Kelley. Based on Detective Kelley's training and experience, he recognized buprenorphine as another name for suboxone. During the search, Detective Kelley also received marijuana from both Sergeant Durant and Sergeant O'Malley. Officers also seized several additional bags containing various substances.

At trial, a certificate of drug analysis was entered in evidence with each controlled substance and identified by Detective Kelley. The defendant turned over $286 during the search to Detective Kelley, which was entered in evidence. There was no drug paraphernalia found in the apartment other than the above evidence. The Commonwealth's police witnesses conceded on cross-examination the lack of evidence indicative of drug distribution, such as scales, dilutant, grinders, baggies or packaging materials, ledgers, safe or other security items, and weapons.

The defense was that the seized drugs were for personal use, not distribution. In support of this defense, the defendant testified to a lengthy history of drug use, dating from about 1990, when he got run over by a truck; as a result of his injuries, he was prescribed and began taking Percocet. Thereafter and for the interceding twenty years, the defendant was given Percocet pills, other than by prescription, by others, including coworkers and work customers and testified to using up to thirty Percocets a day.

The defendant admitted to keeping Percocet “[a]ll over” his apartment, keeping Percocet pills in his pocket at work, and hiding his “per [c]s” from most people. He testified that he was taking them “constantly,” having to “eat five, ten at times,” to get out of bed in the morning, taking another twenty Percocets in the afternoon and night. The defendant introduced three medical records in evidence to demonstrate his Percocet addiction.

When asked why some of the pills were blue and some white, the defendant explained, “That's just how they come.” He continued, “I just know—‘Percs'—I look at the thing, and if it says ‘Perc’ on it, or something.” He added, “I don't care about the color, as long as they're ‘Percs.’ ” When asked if he kept Percocets in his stove, the defendant said, “Yes.” He also confirmed that he had one bag containing 179 Percocets and another bag containing approximately eighty-eight Percocets. He also stated that along with taking six to seven Percocets in the morning before he got out of bed, “instead of coffee [he'd] have a joint.”

Regarding the cocaine, the defendant testified on direct examination that he used cocaine once a year at an annual party on Labor Day weekend. According to the defendant, he had purchased the supposed cocaine found in his apartment from a “kid from Chelsea” but had never used any of the three bags he had recently purchased (and was unclear whether he had used any of the alleged cocaine contained in two smaller bags discovered by the police). The defendant saved up “all year long” for cocaine and then obtained it from “a friend of [his] that [he] know[s] very well.” The defendant received a discount because the “kid is a pretty good friend of [his],” and the defendant “did it once a year with him for years.” The defendant stated that the other two bags found in his apartment were from the previous year when he “went and did the same thing.” The defendant stated that he “[d]idn't look and see what it was. Didn't know anything,” when he purchased the cocaine. Then, in response to the question whether there were three bags of cocaine that he delivered to the police, he responded, “That was, yes.” On cross-examination, the defendant confirmed that he was “caught with” “three eight balls” of cocaine, and when asked if he saw the “bags of cocaine introduced in evidence,” the defendant responded, “Yes.”

The defendant was also indicted for possession of buprenorphine. Detective Kelley testified that he recognized buprenorphine as another name for suboxone. The defendant said his friend gave him the suboxone pills to help him combat his opiate addiction because the defendant was taking thirty “Percs” a day. The defendant “knew what they were” and had never taken any but was saving them “until [he] was ready.”

Discussion. Certificates of drug analysis. The United States Supreme Court has held that the admission of the certificate from the forensic chemist without an opportunity for cross-examination is error. See Melendez–Diaz v. Massachusetts, ––– U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The defendant is entitled to a review under harmless error principles. Commonwealth v. Vasquez, 456 Mass. 350, 355–360, 923 N.E.2d 524 (2010). In determining whether the error was harmless, we ask “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Commonwealth v. Perez, 411 Mass. 249, 260, 581 N.E.2d 1010 (1991), quoting from Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In making an assessment of harmless/harmful error, the court must consider whether, “on the totality of the record before [it], weighing the properly and improperly admitted evidence together, [the court is] satisfied beyond a reasonable doubt that the [certificates] did not have an effect on the jury and did not contribute to the jury's verdicts.” Commonwealth v. Tyree, 455 Mass. 676, 701, 919 N.E.2d 660 (2010). “[A] number of factors [may be examined], including the importance of the evidence in the prosecution's case, the frequency of reference to the evidence, whether it was cumulative of other evidence, and whether the other evidence against the defendant was overwhelming.” Commonwealth v. Pimentel, 76 Mass.App.Ct. 236, 238, 921 N.E.2d 113 (2010), quoting from Commonwealth v. Rosario, 430 Mass. 505, 511, 721 N.E.2d 903 (1999). Also considered is “the relationship between the evidence and the premise of the defense.” Ibid., quoting from Commonwealth v. Mahdi, 388 Mass. 679, 696–697, 448 N.E.2d 704 (1983).

The defendant contends that there was inadequate evidence, independent from the certificates of chemical analysis, showing the nature of the substances for which he was charged and that his testimony ought not to be considered on this issue. As to this latter point, he contends that the harmless error analysis should not give much weight to his testimony because he did not stipulate to the nature of the substances seized by police. See Melendez–Diaz, supra at 2542 (defendant “will often stipulate to the nature of the substance in the ordinary drug case”); Commonwealth v. Muniz, 456 Mass. 166, 173 n. 7, 921...