Commonwealth v. Nelson

460 Mass. 564

953 N.E.2d 164

COMMONWEALTH

v.Joseph NELSON.

SJC–10811.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 2011.Decided Sept. 15, 2011.

Kathryn Hayne Barnwell, Boston, for the defendant.Shirley Xiao Li Cantin, Special Assistant District Attorney (Bethany Stevens, Assistant District Attorney, with her) for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.IRELAND, C.J.

The defendant was convicted of possession of a class C substance, clonazepam, and a class E substance, trazodone, in violation of G.L. c. 94C, § 34; possession with intent to distribute a class D substance, marijuana, in violation of G.L. c. 94C, § 32C ( a ); and a drug violation near a school or park in violation of G.L. c. 94C, § 32J. He appealed, and we granted his application for direct appellate review to consider the first impression issue whether the judge erred in denying his motion to suppress because the police officer who applied for a search warrant did not personally appear before the judge who issued the warrant. He also argues that the officer's requisite oath was not properly administered, in violation of G.L. c. 276, § 2B. As to his trial, he argues that the admission of drug certificates without the testimony of the analyst violated his constitutional rights, and that there were errors concerning the testimony of the Commonwealth's expert and the prosecutor's opening statement and closing argument. Because we conclude that the erroneous admission of the drug certificates was not harmless beyond a reasonable doubt, we reverse the defendant's convictions and remand the case for further proceedings consistent with this opinion.

Facts and background. We present the essential facts, reserving details for our discussion of the issues raised.

On January 20, 2008, Sergeant Timothy Lima of the Stow police department obtained a search warrant for an apartment where the eighteen year old defendant lived with his mother. The apartment is 833.9 feet from a middle school. Lima and other police officers conducted a search of the defendant's bedroom, which was occupied at the time by the defendant and two other individuals. Inside the bedroom, Lima found a backpack on the floor that contained marijuana packaged inside plastic baggies and white pills in a prescription bottle labeled “trazodone.” Lima found several individual pills on a night stand and an assortment of drug paraphernalia in the room, including four compact digital scales, cut plastic baggies, “bongs,” marijuana pipes with residue, “grinding instruments,” rolling papers, a razor blade, and an air pump used for smoking marijuana.

At trial the Commonwealth called Detective Charles Robert Mercer of the suburban Middlesex County drug task force as an expert on the distribution of marijuana. He examined the evidence that was seized and testified that the quantity and packaging of the marijuana, as well as the paraphernalia, was consistent with possession with intent to distribute.

The drugs were admitted in evidence along with certificates of analyses from the State laboratory identifying them as marijuana, trazodone, and clonazepam. The chemical analyst did not testify; instead Lima read the results from each certificate to the jury as part of his testimony.

The defendant did not testify or call any witnesses. Through argument and cross-examination of the Commonwealth's witnesses, the defense was that the defendant was a “pothead,” that the marijuana and pills belonged to one of the other individuals in his room, and that the police never saw the defendant sell drugs to anyone.

Discussion. 1. Motion to suppress. We set forth the relevant facts as found by the motion judge supplemented with uncontroverted evidence from the motion hearing. Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008) (court may supplement judge's findings if uncontroverted and judge explicitly or implicitly credited witnesses' testimony).

Lima was the sole witness at the hearing on the motion. His testimony and the affidavit he prepared in support of his application for a search warrant were as follows.

On the evening of Saturday, January 19, 2008,¹ the defendant's mother telephoned the Stow police department to inform them that she had found a large quantity of marijuana and cocaine inside the defendant's bedroom. Sergeant Lima went to her residence where the mother told him that the defendant had been selling drugs out of the house; that she had detected the odor of marijuana coming from inside his bedroom; and that she found marijuana and cocaine in a large backpack located in the bedroom. She informed Lima that the defendant was in Fall River that evening, presumably purchasing drugs.

The following morning Lima applied for a search warrant that would authorize him to search the defendant's bedroom. Because it was a Sunday, Lima followed a protocol to contact an “on-call” judge. After three or four unsuccessful attempts that involved, inter alia, communicating with the State police, Lima received a telephone call from a Superior Court judge (warrant judge) who was visiting family in New Jersey.

The warrant judge then went to a nearby police station and telephoned Lima at the Stow police station. Through telephone communication and documents exchanged by facsimile transmission, Lima's application and affidavit were reviewed, and the warrant judge signed a properly witnessed warrant and transmitted a facsimile to Lima. Lima had signed his affidavit under the pains and penalties of perjury, and the warrant judge signed that Lima had “made oath that the foregoing affidavit by him subscribed is true.” The warrant issued no later than 11:33 a.m.

At the conclusion of his testimony detailing these exchanges, Lima stated that the warrant judge “signed the [application for the warrant] and swore me in over the phone.” The motion judge further questioned Lima concerning the sequence of events. In his written findings, the motion judge stated: “[The warrant judge] swore [Lima] over the telephone [and] read [from the facsimile] the affidavit page by page. [The warrant judge] ... then faxed back a signed search warrant.” (Emphases added.)

Lima and other police officers executed the warrant at approximately noon that day. Police seized drugs and drug paraphernalia, as set forth above.

The defendant argues that the motion judge should have allowed the motion to suppress because the warrant was obtained without the proper oath, and Sergeant Lima did not personally appear before a neutral magistrate.²

The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that a warrant be issued only on probable cause, supported by oath or affirmation.³ General Laws c. 276, §§ 1 and 2B, require an affidavit and an oath. ⁴ The purpose of G.L. c. 276, §§ 1– 2C, is to ensure that the Commonwealth can demonstrate by a writing (i.e., affidavit) that any given search was reasonable and supported by probable cause. Commonwealth v. Monosson, 351 Mass. 327, 330, 221 N.E.2d 220 (1966). In addition, G.L. c. 276, § 2B, is a statutory prohibition against the admission of evidence without probable cause. Commonwealth v. Upton, 394 Mass. 363, 366, 476 N.E.2d 548 (1985).

“In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Stephens, 451 Mass. 370, 381, 885 N.E.2d 785 (2008).

a. Propriety and timing of oath. The defendant claims that there is no evidence that Lima was given the proper oath, and even if he was, it was not administered until after the warrant issued, in violation of the Fourth Amendment, art. 14, and G.L. c. 276, §§ 1 and 2B. This argument is waived. At the hearing, the defendant asked whether it was proper for someone to be sworn over the telephone. However, because the defendant did not raise the issue of the actual words Lima used to “make oath” or its timing, Lima was not questioned in this regard, and the motion judge made no findings addressing these issues in detail.⁵

Nevertheless we conclude that the motion judge found that a proper oath was given over the telephone before the warrant issued.⁶ His findings are supported by the record, recited supra, i.e., Lima's testimony; his signature on the affidavit averring it was signed under the pains and penalties of perjury; the warrant judge's signature on that affidavit confirming that Lima “made oath that [his affidavit] is true”; and that the warrant judge also crossed out the introductory statutory language, “Then personally appeared before me,” accurately to reflect the conditions under which he took Lima's oath. See note 4, supra. See also Commonwealth v. Keefe, 73 Mass. 332, 7 Gray 332, 337 (1856) (magistrate's signature on jurat is “certificate of the magistrate that the requisite oath has been taken”). Cf. United States v. Richardson, 943 F.2d 547, 548 & n. 1, 549 (5th Cir.1991) (where warrant based solely on oral testimony over telephone, violation of Fourth Amendment where magistrate could not recall whether he used the word “swear” when he asked officer if his statements were true and correct). Moreover, Lima's signature under the pains and penalties of perjury, although not required by the statute, would subject him to a potential charge of perjury, just as an oral oath would. See generally State v. Tye, 248 Wis.2d 530, 540–541, 636 N.W.2d 473 (2001) (purpose of oath is to remind magistrate and investigator of importance and solemnity of process and to protect target of search by creating liability for perjury).

b. Requirement to appear personally before magistrate.

Because the warrant judge was in New Jersey, Lima did not “appear personally” before him when the warrant issued, in...