Opinion
10-P-954
12-06-2011
COMMONWEALTH v. ANGEL AYALA ROQUE.
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
The defendant appeals from convictions of trafficking in cocaine (200 grams or more), G. L. c. 94C, § 32E(b)(4), and conspiracy to violate the controlled substances act, G. L. c. 94C, § 40. On appeal, he argues the trial court judges erroneously (1) denied his motion to suppress evidence resulting from the execution of a search warrant; (2) admitted drug certificates of analysis without providing the defendant an opportunity to cross-examine the analyst, which was not harmless beyond a reasonable doubt; (3) instructed the jury as to joint venture; (4) denied the defendant his right to a Franks hearing; and (5) determined the record evidence of conspiracy to be sufficient. Because the erroneous admission of certificates of analysis was not harmless beyond a reasonable doubt, we must reverse the conviction on the trafficking indictment. However, the defendant's conviction on the conspiracy indictment is affirmed.
At the defendant's request, the trial judge permitted the conspiracy count to be tried with the principal offenses of trafficking. See Mass.R.Crim.P. 9(e), 365 Mass. 751 (1974). The defendant was acquitted on one count of trafficking.
1. Nexus. '[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the 'four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). '[T]he information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there.' Commonwealth v. Luthy , 69 Mass. App. Ct. 102, 105 (2007), quoting from Commonwealth v. Gallagher , 68 Mass. App. Ct. 56, 59 (2007). On appeal, the court must consider the affidavit in its entirety, and not 'dissect [ the affidavit] and then subject[] each resulting fragment to a hypertechnical test of its sufficiency standing alone.' Commonwealth v. Stewart, 358 Mass. 747, 751 (1971).
Viewed in its entirety, together with inferences reasonably drawn therefrom, the affidavit at issue presents a sufficient nexus between the suspected criminal activity of drug trafficking and the location at issue. For example, Nicole Paquette made several statements to police that the defendant paid her to rent vehicles for him, that these vehicles were then used to facilitate cocaine shipments to the defendant, and that she dropped off packages to the defendant at the same location (50 Glen Avenue) where she and the defendant agreed to meet for the delivery of the package she retrieved from the Thrifty rental vehicle. All such statements, made, moreover, by a coconspirator, connect the cocaine identified in the affidavit to the residence searched. The motion to suppress evidence was thus properly denied.
2. Certificates of analysis. The Commonwealth concedes that admission of the drug certificates without providing the defendant an opportunity to cross-examine the chemical analyst was a constitutional error which may only be overcome by a determination of harmlessness beyond a reasonable doubt. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010). In determining the level of harm, the court must consider whether, 'on the totality of the record before [it], weighing the properly admitted and the improperly admitted evidence together, [the court is] satisfied beyond a reasonable doubt that the [certificates] did not have an effect on the jury and did not contribute to the jury's verdicts.' Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). This court will consider the 'importance of the evidence in the prosecution's case, the frequency of reference to the evidence, whether it was cumulative of other evidence and whether the other evidence against the defendant was overwhelming,' among other factors. Commonwealth v. Pimentel, 76 Mass. App. Ct. 236, 238 (2010), quoting from Commonwealth v. Rosario, 430 Mass. 505, 511 (1999).
However, such analysis is not necessary when '[d]efense attorneys and their clients . . . stipulate to the nature of the substance' to avoid highlighting the forensic analysis or wasting the time of the judge or jury with 'the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.' Melendez-Diaz, supra at 2542. See Commonwealth v. Muniz, 456 Mass. 166, 173 n.7 (2010). A defendant's failure to contest the nature of the substance should not be considered to be such a stipulation. See Commonwealth v. Vasquez, 456 Mass. at 367-368 ('Commonwealth's burden of proving every element of its case cannot be transferred to the defendant because of his counsel's choice of defense '); Commonwealth v. Charles, 456 Mass. 378, 383 (2010) (rejecting the theory that reference to a substance as 'drugs' or reference to its street name is a 'tacit stipulat[ion]' of the identity of the substance); Commonwealth v. Rivera, 76 Mass. App. Ct. 67, 71-72 (2009).
The Supreme Judicial Court has recognized in a few limited circumstances that, even absent a formal stipulation, some informed agreements made between parties will also be dispositive of the identity of the substance. The facts of record indicate no such agreement existed in the instant case. Contrast Commonwealth v. Walorz, 79 Mass. App. Ct. 132, 135-136 (2011) (agreed upon statement of evidence was signed by defendant,defense counsel, and prosecutor after a colloquy with trial judge before commencement of the trial).
The Commonwealth erroneously relies on this 'stipulation' exception in arguing the admission of the drug certificates was harmless. Specifically, the Commonwealth contends that the theory of the defense removed the issue of the identity of the substance from dispute, and the strategy of defense counsel at trial served as the functional equivalent of a formal stipulation. In fact, the defense asserted by the defendant was that the Commonwealth failed to prove beyond a reasonable doubt that the defendant possessed the illegal substance. Defense counsel focused his opening and closing statements, as well as cross-examination of the witnesses, on the sufficiency of evidence presented on this issue. In doing so, defense counsel went as far as to suggest to the jury that it need not be concerned about the nature of the substance at issue; rather, it should focus on who possessed it.
The Commonwealth's reliance on the implicit admissions that may be inferred from this trial strategy is misplaced. The failure of the defense to elicit testimony challenging the nature of the substance does not render that issue conceded. To give this factor great weight in the analysis of harmless error is to fail to understand the practical dilemma of trial counsel when faced with the virtual certainty of admission of drug certificates in evidence under Commonwealth v. Verde, 444 Mass. 279 (2005), prior to the publication of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). See Commonwealth v. Tyree, 455 Mass. at 704 n.43; Commonwealth v. Charles, 456 Mass. at 383. Compare Commonwealth v. Hollister, 75 Mass. App. Ct. 729, 732-734 (2009).
To the extent the Commonwealth claims that other properly admitted 'evidence of guilt was 'overwhelming' in the sense that it was so powerful as to 'nullify any effect' [the improperly admitted evidence] might have had on the jury or the verdict,' Commonwealth v. Tyree, 455 Mass. at 704 n.44, quoting from Commonwealth v. Dagraca, 447 Mass. 546, 555 (2006), we disagree. Reversal of this conviction is necessary.
At oral argument, the Commonwealth stated that it was relying primarily on its contention of a 'functional equivalence' to a stipulation; it virtually conceded a lack of evidence of the nature of the substance independent of the analyst certificates.
Given the reversal of the defendant's conviction of trafficking, we need not address the defendant's contention that it was error for the jury to be instructed on joint venture. On retrial, the case will be subject to consideration under the principles of Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).
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3. Denial of a Franks hearing. 'To warrant a Franks hearing, 'the defendant [must] make[] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 37-38 (2002), cert. denied, 538 U.S. 1064 (2003), quoting from Franks v. Delaware, 438 U.S. 154, 155-156 (1978). As the defendant failed to provide a sufficient evidentiary basis to warrant a Franks hearing, namely that the statements on the affidavit were knowingly false, the judge correctly denied his motion.
4. Sufficiency of evidence of conspiracy. The defendant contends the Commonwealth failed to present evidence beyond a reasonable doubt that the defendant and Paquette entered into an agreement to commit a crime. Upon consideration of the sufficiency of the Commonwealth's evidence, viewed in the light most favorable to the Commonwealth along with reasonable inferences that may be drawn therefrom (see Commonwealth v. Latimore, 378 Mass. 671, 676-677 [1979]), we conclude that submission of the case to the jury was warranted; there was ample evidence of a conspiracy between Paquette and the defendant, including several statements made by Paquette supportive of a prior agreement, as well as prior joint activity engaged in by Paquette and the defendant. See Commonwealth v. Pratt, 407 Mass. 647, 653 (1990). See also Commonwealth v. Nelson, 370 Mass. 192, 196-197 (1976).
On the trafficking indictment, the judgment is reversed and the verdict is set aside.
On the conspiracy indictment, the judgment is affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),