Opinion
11-P-633
12-07-2011
COMMONWEALTH v. RICHARD WALDEN, SECOND.
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 March 15, 2005, after a jury trial in Superior Court, the defendant was convicted of multiple drug-related charges. He appealed from the judgments and also filed a motion for new trial. The Superior Court judge denied the defendant's motion for a new trial, and the defendant's direct appeal was consolidated with the appeal from the denial of his motion for a new trial. This court affirmed the defendant's convictions and the order denying his motion for a new trial in an unpublished decision. Commonwealth v. Walden, 68 Mass. App. Ct. 1116 (2007). The defendant filed a second motion for a new trial, which was denied, and the defendant's subsequent appeal was dismissed for lack of prosecution. This appeal is from the denial of the defendant's third motion for a new trial.
Retroactivity of Melendez-Diaz. On appeal the defendant argues that the rule announced in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (Melendez-Diaz), should be applied retroactively to his case because it is not new law. Here the defendant's conviction was final on April 11, 2007, two years prior to the United States Supreme Court's decision in Melendez-Diaz. Thus, '[t]he rule of Melendez-Diaz is of no use to the defendant unless it is held to be retroactive to convictions already made final at the time it was decided.' Commonwealth v. Melendez-Diaz, 460 Mass. 238, 242 (2011). However, the Supreme Judicial Court has held that 'the rule announced in Melendez-Diaz, as it relates to the applicability of the confrontation clause to certificates of chemical analysis (drug certificates), is a 'new' rule . . . and, as such, is not available to the defendant in this appeal from the denial of his motion for a new trial.' Commonwealth v. Melendez-Diaz, 460 Mass. at 239-240. Because the defendant's convictions had become final before June 25, 2009, the date that the Court announced the 'new rule,' id. at 240, 241, the defendant is not entitled to its application on collateral review. The motion judge did not abuse his discretion by denying the defendant's third motion for a new trial.
Ineffective assistance of counsel. The defendant also argues that he was denied effective assistance of counsel at trial because of trial counsel's failure to object to the admission of the drug certificate and postconviction counsel's failure to raise the confrontation clause issue in the defendant's first motion for a new trial or on direct appeal. '[P]rior to Crawford [v. Washington, 541 U.S. 36 (2004)], drug certificates were broadly considered admissible against a criminal defendant in the absence of the testimony of the analyst . . . .' Commonwealth v. Melendez-Diaz, 460 Mass. at 244. Although this case was tried subsequent to the decision in Crawford, there had been no change in controlling Massachusetts law by the time of trial that would have led a judge to believe that drug certificates were no longer admissible. See Commonwealth v. Vasquez, 456 Mass. 350, 357 (2010). 'Any objection [to the admission of the drug certificates at trial], therefore, would likely have been futile, and counsel's failure to object did not constitute ineffective assistance of counsel.' Commonwealth v. Carroll, 439 Mass. 547, 557 (2003). Shortly after the defendant was convicted, the Supreme Judicial Court held that 'drug certificates are well within the public records exception to the confrontation clause.' Commonwealth v. Verde, 444 Mass. 279, 284 (2005). If counsel had raised confrontation clause issues on direct appeal or in the motion for a new trial, Verde would have controlled and such argument would have also been futile. See Commonwealth v. Vasquez, 456 Mass. at 356-357; Commonwealth v. Boria, 460 Mass. 249, 253 (2011). Thus, there was no ineffective assistance of counsel.
Order denying third motion for new trial affirmed.
By the Court (Green, Katzmann, & Hanlon, JJ.),