Commonwealth v. Leslie Bin Li

COMMONWEALTH

v. LESLIE BIN LI.

07-P-1509

Commonwealth Of Massachusetts Appeals Court

Entered: August 27, 2010.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Mills & Meade, JJ.

On November 13, 2009, we affirmed the defendant's convictions for distributing a class D substance (marijuana) and conspiring to violate the controlled substance laws, see 75 Mass. App. Ct. 1112 (2009), and the defendant sought further appellate review. The Supreme Judicial Court denied the application without prejudice and remanded the case for our reconsideration in light of Commonwealth v. Vasquez, 456 Mass. 350 (2010); Commonwealth v. Charles, 456 Mass. 378 (2010); and Commonwealth v. Muniz, 456 Mass. 166 (2010). Upon reconsideration, we reverse the conviction for distribution. The disposition in the prior decision remains unaffected with respect to the conspiracy conviction. ¹

We consider whether the erroneous admission of the drug certificate was harmless beyond a reasonable doubt. See Vasquez, supra at 360-368. We consider the defense strategy, which assumed that the substance found in the bag was marijuana, in light of Charles, supra at 383-384. ² Because objection to the certificate would have been futile under Commonwealth v. Verde, 444 Mass. 279, 288 (2005), we treat the defendant as if he had objected. The defendant had 'no further obligation [in order to] challenge th [e] error on appeal.' Charles, supra, at 383-384.

Although the observed circumstances of the transaction coupled with the amount of money exchanged for the substance in the white bag provided circumstantial evidence that the substance was marijuana, this evidence did not satisfy the Commonwealth's burden of proving that erroneous admission of the certificate of analysis was harmless beyond a reasonable doubt. See Vasquez, supra, at 362-364. See also Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 212 (2010) (officer who testified in conclusory manner that he 'believed' the substance to be cocaine was 'never qualified as an expert to give an opinion as to the nature of the substance in question.') ³ 'The officers certainly 'did not articulate how their expertise permitted them to identify the substances' as... marijuana.' Commonwealth v. Charles, supra at 382, quoting from Commonwealth v. Melendez-Diaz, 76 Mass. App. Ct. 229, 233 (2010). As such, we cannot say that the certificate identifying the substance as marijuana was harmless beyond a reasonable doubt. Contrast Commonwealth v. Villatoro, 76 Mass. App. Ct. 645, 652-654 (2010) (certificates were harmless beyond a reasonable doubt when '[t]he defendant not only admitted that the substance in question was marijuana, he testified at length on the subject, asserting the distinction between different grades of 'weed, ' explaining why he also had smoking implements and baggies on his person, and detailing his experience and long history of marijuana use').

Here, the drug certificate provided the core evidence of the identity of the substances that formed the basis of the conviction. ⁴ It cannot be said that the record establishes beyond a reasonable doubt that admission of the certificate did not contribute to the judge's finding of guilt. See Vasquez, supra at 360-368; Charles, supra at 381-384; Commonwealth v. Fluellen, 456 Mass. 517, 525-527 (2010); Commonwealth v. Rodriguez, 456 Mass. 578, 591-592 (2010); Commonwealth v. Morales, 76 Mass. App. Ct. 663, 668-669 (2010); Commonwealth v. Jones, 77 Mass. App. Ct. 53, 61-62 (2010). Contrast Commonwealth v. Connolly, 454 Mass. 808, 830-832 (2009); Commonwealth v. Harris, 75 Mass. App. Ct. 696, 707 & n.10 (2009); Commonwealth v. Johnson, 76 Mass. App. Ct. 80, 83-84 (2010); Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 872-875 (2010).

Judgment reversed.

Finding set aside.

By the Court (Duffly, Mills & Meade, JJ.),

Entered: August 27, 2010.

1. Though nominally appealing from his conspiracy conviction, the defendant made no argument directed to that judgment and he has thus waived any claims he might have had. At oral argument, in response to questions, counsel for the defendant agreed that a drug certificate was not necessary to prove conspiracy.

2. 'Although the defendant did not contest that the substances were drugs, the 'defendant's theory of his case cannot relieve the Commonwealth of its burden of proving every element of a crime beyond a reasonable doubt.' Commonwealth v. Shea, 398 Mass. 264, 269 (1986). Further, as we explained in Vasquez, supra at 368, by giving the defendant the benefit of the harmless beyond a reasonable doubt standard, as we have, 'the defendant is effectively in the same position as if he had objected to the admission of the drug certificates. A defendant who objects to a Federal (or State) constitutional error that goes to the heart of the government's case has no further obligation, if ...