Commonwealth v. Malone

83 Mass.App.Ct. 1107

981 N.E.2d 233

COMMONWEALTH

v.Kevin MALONE.

No. 10–P–657.

Appeals Court of Massachusetts.

January 18, 2013.

OPINION TEXT STARTS HEREBy the Court (KANTROWITZ, TRAINOR & GRAINGER, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

During the defendant, Kevin Malone's 2008 trial, the judge admitted drug analysis certificates without the testimony of the chemical analyst. A Hampden County jury found the defendant guilty on three counts: (1) trafficking in cocaine, G.L. c. 94C, § 32E(b)(2); (2) possession of marijuana, G.L. c. 94C, § 34; and (3) trafficking in cocaine within one hundred feet of a public park, G.L. c. 94C, § 32J.

Following Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the defendant filed a motion for a new trial. The motion judge allowed the motion as to Counts 1 and 3, but denied it as to Count 2, finding the improper admission of the drug analysis certificate in that instance to be harmless error beyond a reasonable doubt. The defendant appeals.

1. Discussion. The admission of the drug analysis certificate violated the defendant's right to confrontation, and thus was error. Melendez–Diaz, supra at 321–322. Nevertheless, the conviction may still be affirmed if we determine that the error was harmless beyond a reasonable doubt. Commonwealth v. Vasquez, 456 Mass. 350, 360, 923 N.E.2d 524 (2010). To determine if an error is harmless beyond a reasonable doubt, “we ask whether, on the totality of the record ..., 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. Mendes, 463 Mass. 353, 358, 974 N.E.2d 606 (2012), quoting from Commonwealth v. Tyree, 455 Mass. 676, 701, 919 N.E.2d 660 (2010). The totality of the record includes evidence from both the Commonwealth's case and the defendant's case. Id. at 361, 919 N.E.2d 660.

a. The Commonwealth's case. We begin with the Commonwealth's case. In a narcotics case, “the Commonwealth must prove beyond a reasonable doubt ‘that a substance is a particular drug’ because such proof is an element of the crime charged.” Commonwealth v. Vasquez, 456 Mass. 350, 361, 923 N.E.2d 524 (2010), quoting from Commonwealth v. McGilvery, 74 Mass.App.Ct. 508, 511, 908 N.E.2d 783 (2009). Here, the Commonwealth's evidence that the substance was marijuana stemmed from testimony by Officer Mark Templeman. During his testimony, he concluded that the substance was marijuana based solely on its appearance as “a green leafy vegetable matter,” without any reference to odor. Simply describing the appearance of the substance, however, is insufficient to prove that the substance is, in fact, the alleged drug. Commonwealth v. Charles, 456 Mass. 378, 382, 923 N.E.2d 519 (2010), quoting from Commonwealth v. Dawson, 399 Mass. 465, 467, 504 N.E.2d 1056 (1987) (“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”). Like in Charles, the Commonwealth here presented “no evidence that the officers detected any identifiable odors or recognized any other distinguishing characteristics of the substances beyond their appearance.” Charles, supra at 382, 923 N.E.2d 519. Although the trial judge qualified Officer Templeman to give opinion testimony on whether the substance was marijuana, his conclusion rested solely on the substance's appearance, and thus cannot meet the Commonwealth's burden to prove that the substance was marijuana. Id. at 382–383, 923 N.E.2d 519.

Second, Officer Templeman claimed that the packaging was consistent with street-level distribution in Springfield. While the manner of packaging is certainly evidence of distribution, it is not conclusive on the chemical composition of the charged substance. Id. at 383, 923 N.E.2d 519;Vasquez, supra at 366–367, 923 N.E.2d 524. Therefore, testimony on packaging cannot overcome the improper admission of a drug analysis certificate. Vasquez, supra at 367, 923 N.E.2d 524. Finally, there is no evidence the officers performed field tests on the seized substances. See id. at 364, 923 N.E.2d 524;Commonwealth v. Pixley, 77 Mass.App.Ct. 624, 633, 933 N.E.2d 645 (2010). Contrast Commonwealth v. Connolly, 454 Mass. 808, 831, 913 N.E.2d 356 (2009) (concluding error harmless where circumstantial evidence of cocaine included positive field tests).

Based on the record, the Commonwealth's circumstantial evidence does not provide the necessary assurances to the fact finder “that the charged substance is in fact a particular illegal drug.” Mendes, supra at 360, 974 N.E.2d 606, quoting from Vasquez, supra at 364, 923 N.E.2d 524.

b. The Defendant's case. The totality of the record, however, does not end with the Commonwealth's case. We must also examine the defendant's case to determine if evidence elicited there, either alone or in combination with the evidence from the Commonwealth's case, can overcome the improper admission of the drug analysis certificate. At trial in the present case, the defendant made several admissions that the substance was marijuana, both in his direct examination and during his counsel's closing arguments.

Testimony by a defendant can render the admission of drug certificates harmless because “testimony about [his] personal drug use establishe[s][his] credibility for identifying the substances in [his] possession as cocaine and marijuana.” Mendes, supra at 361, 974 N.E.2d 606. Courts have found such an error harmless where the defendant testified at length regarding his heavy drug use. See ibid. (defendants “explained at length how they would smoke the drugs, through use of ‘roach clip[s],’ ‘blunts,’ and ‘rolling papers' ”); Commonwealth v. Villatoro, 76 Mass.App.Ct. 645, 652–654, 925 N.E.2d 45 (2010) (defendant “testified at length on the subject, asserting the distinction between different grades of ‘weed,’...