Commonwealth v. Sanchez

COMMONWEALTH

v. WILLIAM SANCHEZ.

08-P-1161

Commonwealth Of Massachusetts Appeals Court

Entered: August 20, 2010.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Brown & McHugh, JJ.

On May 22, 2009, we affirmed the defendant's convictions of cocaine distribution, second offense, G. L. c. 94C, § 32A(c), and doing so near a school, G. L. c. 94C, § 32J. Commonwealth v. Sanchez, 74 Mass. App. Ct. 1113 (2009). 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.

We consider whether the erroneous admission of the drug certificate was harmless beyond a reasonable doubt. See Vasquez, supra. We consider the defense strategy, which was mistaken identification, in light of Commonwealth v. Charles, supra at 383-384.¹

There was circumstantial evidence that the substance was cocaine based on evidence that the defendant spat from his mouth 'two clear plastic baggies containing an off white chunk substance' and handed them to the police officer in response to the officer's request for 'two dimes.'² However, the suspicious circumstances of the transaction alone do not satisfy the Commonwealth's burden of proving that admission in evidence of the certificate of analysis was harmless beyond a reasonable doubt. See Vasquez, supra, at 362-364. The prosecutor referred to the certificate in his closing argument. See Commonwealth v. Loadholt, 456 Mass. 411, 433 n.16 (2010). As in Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 212 (2010), the police officer here, who testified in a conclusory manner that the substance 'looked' to be 'real' cocaine, was 'never qualified as an expert to give an opinion as to the nature of the substance in question.' Ibid.³ 'The officer [] certainly 'did not articulate how [his] expertise permitted [him] to identify the substance[]' as cocaine.' Commonwealth v. Charles, supra at 382, quoting from Commonwealth v. Melendez-Diaz, 76 Mass. App. Ct. 229, 233 (2010).

Here, the drug certificate provided the core evidence of the identity of the substances that formed the basis of the conviction. It cannot be said that the record establishes beyond a reasonable doubt that admission of the certificate did not contribute to the verdict. See Commonwealth v. Vasquez, supra at 360-368; Commonwealth v. Charles, supra at 381-384 (2010); 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); Commonwealth v. Rivas, supra at 212-213; Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 263-264 (2010). Contrast Commonwealth v. Connolly, 454 Mass. 808, 830-831 (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); Commonwealth v. King, 77 Mass. App. Ct. 189, 191-192 (2010).

Judgments reversed.

Verdicts set aside.

By the Court (Duffly, Brown & McHugh, JJ.),

Entered: August 20, 2010.

1. We note that the defendant cross-examined a police officer on his ability to visually identify the substance as cocaine. We need not determine whether the defendant contested the nature of the substance at trial as we have given 'the defendant the benefit of the of the harmless beyond a reasonable doubt standard.' Commonwealth v. Charles, supra at 383.

2. The officer testified that a 'dime' referred to crack cocaine.

3. 'Mistaken identification of cocaine by trained and experienced law enforcement personnel is not unknown in the annals of our law.' Vasquez, supra at 365, and cases cited.