Commonwealth v. Ramsey

466 Mass. 489

995 N.E.2d 1110

COMMONWEALTH

v.Aaron RAMSEY.

SJC–11300.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 9, 2013.

Decided Sept. 27, 2013.

Susan E. Taylor, New Bedford, for the defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

In 2008, a jury in the Superior Court found the defendant guilty of unlawful possession of a firearm, in violation of G.L. c. 269, § 10 ( a ); and unlawful possession of a class B controlled substance, cocaine, in violation of G.L. c. 94C, § 34. As proof that the weapon the defendant possessed was a firearm and the substances found in his clothing were cocaine, the Commonwealth offered in evidence a ballistics certificate and two certificates of drug analysis. The certificates were admitted without testimony from the analysts who had prepared them, and without objection by the defendant. The defendant subsequently appealed, arguing that he was denied his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution because the certificates were admitted without a showing of the unavailability of the analysts or a prior opportunity to cross-examine them, in contravention of Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). A divided panel of the Appeals Court affirmed the firearms conviction but reversed the drug conviction. Commonwealth v. Ramsey, 79 Mass.App.Ct. 724, 730–731, 949 N.E.2d 927 (2011). We granted both parties' applications for further appellate review. Because we are satisfied that the improper admission of both the ballistics certificate and drug certificates did not contribute to the jury's verdict, where the defendant conceded as part of his trial strategy that he possessed both the gun and cocaine and agreed that the jury be instructed that the Commonwealth had proven all elements of both charges beyond a reasonable doubt, we conclude that the certificates' introduction at trial was harmless beyond a reasonable doubt. Accordingly, we affirm both convictions.

1. Facts. We present the essential facts the jury could have found, reserving certain details for our discussion of the issues. On January 1, 2007, Springfield police Officer Ramon Sierra and his partner responded to a shooting at a local restaurant. While traveling to the scene, Officer Sierra heard several shots fired and then saw the defendant walking “at a very fast pace ... [with] his hands in front of his body....” Despite Sierra's order to stop, the defendant continued on, reached for something in his waistband, and then threw away an item that Sierra recognized to be a weapon. Police apprehended the defendant who, after indicating that he had been wounded, was transported to a hospital for treatment of injuries to his foot. The attending nurse removed what appeared to be “crack” and powder cocaine from the defendant's sock. The substances were collected for evidence and subsequent drug analysis issued positive results for cocaine.

In the meantime, Sierra searched the area where the defendant discarded the weapon and located a semiautomatic pistol. A third police officer, who had inspected the gun, noted that it was unloaded but contained a magazine, and seized it for later assessment of its operability. The ensuing ballistics certificate showed that the pistol bore no malfunctions and could discharge a bullet. A search for other ballistics evidence uncovered several spent shell casings both inside and outside the restaurant.

At trial, a State police trooper testified as an expert witness that the recovered handgun was test fired by a colleague and that, based on comparisons the trooper personally made with test specimens, two of the cartridge casings retrieved from outside the restaurant were positively identified as having been fired from the seized weapon.

The defendant testified, admitting that he possessed both the gun and the cocaine, but raising a defense of necessity as to the firearms charge. ¹ He stated that, on the morning of January 1, [466 Mass. 492]2007, he was at the restaurant extending wishes for a happy New Year to acquaintances when he suddenly heard gunshots and noticed that one of his friends was hurt. After he spotted a gun lying on a nearby table, the defendant grabbed it while picking up his injured friend and dragging him outside to safety. He stated that he took the gun because he did not want someone else to pick it up and use it against him. Once outside of the restaurant, the defendant, with the gun still in his possession, left his friend on the sidewalk and started to run because he realized he had just been shot in the foot and was “scared for [his] life.”

In support of the necessity defense, defense counsel in closing argument described a chaotic scene at the restaurant, resulting in “monstrous danger” and forcing the defendant to make an automatic judgment about taking possession of the gun to prevent others from discharging it. In order to bolster the defendant's credibility, defense counsel further argued, “[The defendant] comes before you and says, listen, I picked up a gun. I was in possession of the gun.... And he admits to you on the stand he had cocaine in his sock.”

Recognizing that the defendant's entire defense strategy revolved around convincing the jury that he acted out of necessity in possessing the gun, the judge inquired prior to instructing the jury whether defense counsel preferred jury instructions that included a complete explanation of the elements of the crimes charged or instructions that simply focused on the defense of necessity. After conferring with the defendant, defense counsel stated that the defendant “concedes both possession of the gun, as well as the possession of the cocaine.” ² As to both charges, the judge instructed the jury in nearly identical language that “the parties have agreed that the Commonwealth has, in fact, satisfied beyond a reasonable doubt each and every one of these elements.” The judge instructed the jury on the application of the necessity defense as to the firearms charge only.³ Defense counsel indicated that he was satisfied with the instructions.

2. Discussion. The Commonwealth concedes, as it must, that admission in evidence of the ballistics and drug certificates without testimony of the analysts was error. Although the defendant did not object to the production of the certificates at trial, such an objection would have been futile because of our decision in Commonwealth v. Verde, 444 Mass. 279, 280, 283–284, 827 N.E.2d 701 (2005) (drug certificates may be properly introduced as business records), on which defense counsel was entitled to rely. The United States Supreme Court's ruling in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 310–311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (certificates of analysis are testimonial statements whose admission in evidence compels protection of confrontation clause), which abrogated Commonwealth v. Verde, supra, was issued after the defendant's trial. We review the error to determine whether it was harmless beyond a reasonable doubt. Commonwealth v. Vasquez, 456 Mass. 350, 352, 923 N.E.2d 524 (2010).

“The ‘essential question’ in analyzing harmlessness beyond a reasonable doubt is ‘whether the error had, or might have had, an effect on the [fact finder]....’ ” Commonwealth v. King, 461 Mass. 354, 356, 960 N.E.2d 894 (2012), quoting Commonwealth v. Vasquez, supra at 360, 923 N.E.2d 524. In conducting the analysis, “we ask whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, 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 Commonwealth v. Tyree, 455 Mass. 676, 701, 919 N.E.2d 660 (2010). An error may be considered harmless when other properly admitted evidence of guilt is so “overwhelming” as to nullify any effect that the improperly introduced evidence might have had on the outcome. Commonwealth v. Dagraca, 447 Mass. 546, 555, 854 N.E.2d 1249 (2006). Additionally, “[a]n assertion [of harmless error] ... is most particularly vulnerable where the over-all strength of the Commonwealth's case radiates from a core of tainted evidence.” Commonwealth v. Muniz, 456 Mass. 166, 169, 921 N.E.2d 981 (2010), quoting Commonwealth v. Tyree, supra at 701–702, 919 N.E.2d 660.

In evaluating whether the improper admission of evidence was harmless beyond a reasonable doubt, we examine factors such as “the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.” Commonwealth v. Mendes, supra at 359, 974 N.E.2d 606, quoting Commonwealth v. Dagraca, supra at 553, 854 N.E.2d 1249. These factors, although useful, “are not exclusive or exhaustive.” Commonwealth v. Mahdi, 388 Mass. 679, 697, 448 N.E.2d 704 (1983).

a. Drug certificates. As to the drug certificates, there is no doubt that they are powerful evidence of the identity of an alleged illegal substance, and their improper admission will not be easily overcome. See Commonwealth v. Vasquez, supra at 363–364, 923 N.E.2d 524. Drug certificates “assure the fact finder, to a degree that virtually no amount of circumstantial evidence can, that the charged substance is in fact a particular illegal drug.” Id.Ultimately, however, when conducting a harmless error analysis, our focus is “whether, on the totality of the record before us, ... we are satisfied...