Opinion
No. 11–P–1595.
2013-01-10
COMMONWEALTH v. Dwayne D. BERRY.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of several drug violations. At trial, the Commonwealth introduced drug analysis certificates, without accompanying testimony from the analyst (or a prior opportunity for cross-examination), to prove that the items were controlled substances. On direct appeal we affirmed his convictions, Commonwealth v. Berry, 73 Mass.App.Ct. 1108 (2008), and the Supreme Judicial Court denied further appellate review on February 25, 2009. Commonwealth v. Berry, 453 Mass. 1104 (2009). Four months later, the United States Supreme Court issued its decision in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 309–311 (2009) ( Melendez–Diaz I ), which prohibited the procedure used at the defendant's trial. The defendant subsequently filed a motion for a new trial based on Melendez–Diaz I, and he now appeals from its denial.
In Commonwealth v. Melendez–Diaz, 460 Mass. 238, 239–240 (2011) ( Melendez–Diaz II ), the Supreme Judicial Court determined that Melendez–Diaz I created a “new” rule and thus did not apply retroactively to collateral attacks on judgments that became final before June 25, 2009. Therefore, in light of Melendez–Diaz II, the judge correctly denied the defendant's motion for a new trial. We affirm.
Order denying motion for new trial affirmed.