Opinion
14-P-1415
10-05-2015
COMMONWEALTH v. ALBERTO L. VELASQUEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in the District Court on March 13, 2009, the defendant, Alberto L. Velasquez, was convicted of a number of controlled substance violations. He filed a motion for a new trial, which was allowed as to counts one through four, for which Annie Dookhan had signed the related drug certificates entered in evidence. See Commonwealth v. Scott, 467 Mass. 336 (2014). As to the remaining convictions, possession of a class D substance with intent to distribute, a related school zone violation, and conspiracy to violate the drug laws (counts five through seven), the judge denied the defendant's motion. The defendant appeals from the denial of the motion as to those counts. We affirm.
Those convictions were possession of class A and B substances with intent to distribute and related school zone violations.
1. Admission of the drug certificates. The defendant contends it was error to admit drug certificates at trial without the testimony of the chemist. While it is true that drug certificates are no longer admissible without such testimony, this requirement, when established, had a prospective effect. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (decided on June 25, 2009); Commonwealth v. Melendez-Diaz, 460 Mass. 238, 248 (2011). In other words, a defendant is entitled to the benefit of the Melendez-Diaz holding only if he had not yet exhausted his direct appeal when the United States Supreme Court's decision was issued. See Commonwealth v. Montoya, 464 Mass. 566, 571 (2013). Here, the defendant did not file a direct appeal, and his convictions were final. Accordingly, at the time of the defendant's trial, the drug certificates were admissible proof that the substance in question was marijuana, thus satisfying the Commonwealth's burden of proof on that element of those crimes. Commonwealth v. Boria, 460 Mass. 249, 251 (2011).
For this reason, regardless of the motion judge's reasoning, see Commonwealth v. Levesque, 436 Mass. 443, 455 (2002), we need not consider the defendant's claim that the officers' testimony at trial regarding the identity of the substance as marijuana was insufficient.
At the time of oral argument, the defendant withdrew his argument pertaining to the Melendez-Diaz case.
2. Annie Dookhan misconduct. Annie Dookhan signed the heroin and cocaine drug certificates in this case. As we have noted, the judge allowed the defendant's motion for a new trial as to counts one through four, which were later the subject of nolle prosequi filings by the Commonwealth. Although the defendant concedes that Dookhan did not sign any of the marijuana drug certificates, he argues that he is entitled to a new trial because there is real doubt as to the justice of those convictions. We disagree. It is not sufficient to simply raise Annie Dookhan's name in support of a motion for a new trial. The record of the investigation of the Hinton drug lab does not support the inference that the defendant asks us to make. Commonwealth v. Scott, 467 Mass. at 341, 352. See Commonwealth v. Gaston, 86 Mass. App. Ct. 568 (2014) (applying Scott analysis in context of direct appeal and motion for new trial). That is, the fact that Dookhan's signature appears on the certificates as to some of the drugs involved in the case, does not, by itself, lead to an inference that she tampered with all of the drugs involved. The relief afforded by Scott is limited to cases where Dookhan served as either the primary or secondary chemist. Id. at 352 n.8. Commonwealth v. Gardner, 467 Mass. 363, 369 (2014).
Only chemist Lisa Glazer signed off on the marijuana certificates.
Order denying motion for new trial as to counts five through seven affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 5, 2015.