Opinion
10-P-1376
09-19-2011
COMMONWEALTH v. MARK YARDE.
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
In this appeal from an order allowing the defendant's motion for a new trial, the Commonwealth maintains that the Superior Court judge erred because the rule announced in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz), is a 'new rule' that is not available to a defendant upon collateral review of his conviction. We agree.
In Commonwealth v. Melendez-Diaz, 460 Mass. 238, 239-240 (2011) (Melendez-Diaz II), the Supreme Judicial Court concluded that the rule announced by the United States Supreme Court in Melendez-Diaz regarding the applicability of the confrontation clause to certificates of chemical analysis (drug certificates), is a 'new' rule within the meaning of Teague v. Lane, 489 U.S. 288 (1989), and, as such, is not available to a defendant upon collateral review of his conviction. Melendez-Diaz II also disposes of the defendant's contentions that the 'futility exception' and 'fundamental fairness' require retroactive application of the rule of Melendez Diaz to his conviction of cocaine trafficking. See Melendez-Diaz II, supra at 248 (rejecting the claim that the 'futility exception' should apply or that Massachusetts should adopt a broader rule of retroactivity than that mandated by Federal law).
The Supreme Judicial Court announced the decision in Melendez-Diaz II after the filing of the briefs in this case. While disagreeing with its reasoning, defense counsel properly acknowledges that it controls this appeal.
Accordingly, we reverse the order allowing the defendant's motion for a new trial.
Order allowing motion for new trial reversed.
By the Court (Grasso, Katzmann & Rubin, JJ.),