Opinion
11-P-33
03-02-2012
COMMONWEALTH v. JOSE R. OROZCO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On April 7, 2006, after a jury-waived trial, the defendant was convicted of one count of trafficking in cocaine with a net weight of one hundred grams or more but less than two hundred grams. G. L. c. 94C, § 32E(b)(3). The charge arose from the execution of a search warrant at the defendant's house on or about April 9, 2004, during which the contraband was found.
At trial, the judge allowed the introduction of various drug certificates over defense counsel's objections under Crawford v. Washington, 541 U.S. 36 (2004). The defendant appealed and we affirmed his conviction. The Supreme Judicial Court denied his application for further appellate review. On July 22, 2010, the defendant filed a rule 30(b) motion for new trial, which was denied by the motion judge on December 2, 2010. Mass.R.Crim.P. 30(b), as amended by 435 Mass. 1501 (2001). The defendant filed a timely notice of appeal from the denial.
The defendant argues that (1) he is entitled on appeal to the benefit of the rule establishing drug certificates as testimonial because, he claims, the rule was announced in the Crawford decision, and not in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-2532 (2009), and is therefore not a 'new rule' within the meaning of Teague v. Lane, 489 U.S. 288 (1989); (2) that even if Melendez-Diaz v. Massachusetts did establish a new rule, it fits within the exception for 'watershed rules,' and should thus be available to the defendant because it is essential to the fundamental fairness of the proceeding, and (3) it was fundamentally unfair to deny the defendant any benefit from Melendez-Diaz v. Massachusetts on collateral review when his separately tried joint venturer received a new trial from the new rule in his direct appeal.
The defendant's first argument must fail based on the recent holding of the Supreme Judicial Court that 'Melendez-Diaz . . . broke new ground and announced a new rule' that 'is not retroactive' and that there is 'no fundamental injustice or unfairness in applying Melendez-Diaz as a new rule with [only] prospective effect.' Commonwealth v. Melendez-Diaz, 460 Mass. 238, 248 (2011), citing Teague v. Lane, 489 U.S. 288 (1989).
The defendant's second argument must fail because we recently held that the watershed exception does not apply to the new rule announced in Melendez-Diaz v. Massachusetts. See Commonwealth v. Arnaut, 78 Mass. App. Ct. 906, 907 n. 5 (2011) ('Whorton v. Bockting [549 U.S. 406, 421 (2007)] held 'that [Crawford] announced a 'new rule' of criminal procedure and that this rule does not fall within the Teague exception for watershed rules.' We assume thus that Melendez-Diaz, which is based upon Crawford, is subject to the same interpretation.').
With regard to the defendant's third argument, we conclude that the judge did not abuse his discretion in denying the defendant's rule 30(b) motion, and that it was not fundamentally unfair to deny the defendant any benefit of the new rule established in Melendez-Diaz where his coventurer received such a benefit in his direct appeal. Though the defendant's situation relative to his codefendant gives his situation a veneer of unfairness, the actual unfairness suffered by the defendant is no greater than that suffered by all other defendants who might have benefitted from the rule created in Melendez-Diaz had their cases not become final, and who are now barred from that benefit. See Commonwealth v. Melendez-Diaz, supra; Commonwealth v. Arnaut, supra.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Trainor & Hanlon, JJ.),