Opinion
10-P-1157
12-30-2011
COMMONWEALTH v. WANDA ZANI.
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 November 8, 2007, the defendant, Wanda Zani, was convicted of possession of cocaine, in violation of G. L. c. 94C, § 32. The conviction resulted from the execution of a search warrant at Zani's residence, 7 Briarwood Lane in the city of Marlboro. Evidence was presented at trial that during the execution of the warrant, officers found one 'eightball' of cocaine underneath a freezer, one large baggie that contained three small baggies of cocaine in the pocket of a jacket, $140 in cash on the defendant's person, $130 in cash in the defendant's bedroom, $102 in cash on the kitchen counter, and a digital scale.
After conviction the defendant filed a timely notice of appeal. Zani argues for reversal on the grounds that (1) the motion judge improperly denied her motion to suppress the search of 7 Briarwood Lane, because there was an insufficient nexus established in the search warrant affidavit between the alleged drug activity and her home, and (2) that the judge erred in admitting certificates of drug analysis, without any witness testifying in support, in violation of the Confrontation Clause of the United States Constitution. We conclude that there was a sufficient nexus established in the search warrant affidavit, but we reverse the defendant's conviction on the cocaine possession charge because the introduction of the drug certificates was not harmless error. The Commonwealth may, however, seek to retry the defendant on this count.
See Commonwealth v. DiBenedetto, 414 Mass. 37, 45 (1992); Commonwealth v. Dillon, 79 Mass. App. Ct. 290, 299 (2011).
Discussion. 'To establish probable cause to obtain a search warrant, the affidavit must 'contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched." Commonwealth v. O'Day, 440 Mass. 296, 300 (2003) quoting from Commonwealth v. Cefalo, 381 Mass. 319, 328 (1980). '[T]he affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis.' O'Day, supra at 301. 'When [the location to be searched] is a residence, there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide a sufficient nexus between the defendant's drug-selling activity and [her] residence to establish probable cause to search the residence.' Commonwealth v. Escalera, 79 Mass. App. Ct. 262, 265 (2011). '[T]he fact that a defendant drives from his home to the location of a drug transaction, and returns to [her] home on the transaction's conclusion, with no other facts connecting the residence to drug sales, does not provide probable cause to search the residence.' Id. at 266 (emphasis original).
While the issue is close, we conclude that there was a sufficient nexus here between the defendant's drug-selling activity and her residence at 7 Briarwood Lane. The affidavit showed that the defendant and her accomplice 'Lee,' who were clearly working in concert, made four sales of cocaine to the confidential informant (CI) within a four-week period, on each occasion driving to the site of the buy in the blue Dodge Caravan immediately after receiving a phone call from the CI. On one of these occasions 'Lee' drove directly from 7 Briarwood Lane to the buy, and on another occasion Zani drove directly from 7 Briarwood Lane to the buy. These facts established a pattern of conduct consistent with a 'drug delivery service,' and it is significant that in two instances the seller left 7 Briarwood Lane directly before the sale. See Commonwealth v. Gallagher, 68 Mass. App. Ct. 56, 60 (2007) (discussing a 'pattern of drug dealing consistent with [a drug] delivery service'). Here 'it was reasonable to infer that the delivery service was based out of [the defendant's residence].' Ibid. See also Commonwealth v. Hardy, 63 Mass. App. Ct. 210, 212-213 (2005) (where the affidavit stated that the defendant drove directly from his apartment to designated locations to sell drugs and that officers observed the defendant leave the apartment, drive to locations, and engage in apparent drug transactions on numerous other occasions, the affidavit established a sufficient nexus).
Additional facts contained in the affidavit are certainly not by themselves enough to justify the search warrant, but they bolster the other evidence connecting Zani's drug-selling activity to 7 Briarwood Lane. These include the CI's statement to Manning that Zani had sold him/her cocaine 'on at least 20 occasions in the past,' the presence at 7 Briarwood Lane of an individual then under indictment for cocaine trafficking, and evidence of the defendant's prior history of cocaine distribution. See Commonwealth v. Eller, 66 Mass. App. Ct. 564, 570-571 (2006). The judge was within his discretion to deny the defendant's motion to suppress the search of 7 Briarwood Lane.
The Melendez-Diaz claim . Although the defendant failed to object to the admission of the certificates at trial, we review to determine whether the error in admitting them was harmless beyond a reasonable doubt. A Melendez-Diaz problem can be overcome by prosecutorial evidence that is 'overwhelming, in the sense that it is so powerful as to nullify any effect that the improperly admitted evidence might have had on the fact finder or the findings.' Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010) (internal quotations omitted). Upon review of the record, we are unable to conclude that the other evidence in this case met that standard.
Drug certificates are testimonial for the purposes of the 6th Amendment's confrontation clause. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). 'Consequently their admission in evidence against a criminal defendant triggers his right 'to be confronted' with the analyst at trial, unless the analyst is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination.' Commonwealth v. Taskey, 78 Mass. App. Ct. 787, 792 (2011), quoting from Melendez-Diaz, supra at 2531.
See Commonwealth v. Vasquez, 456 Mass. 350, 352 (2010) (where defendant is convicted of violation of drug law after Commonwealth v. Verde, 444 Mass. 279 (2005), but before Melendez-Diaz, supra, any unpreserved objection is treated as preserved).
The Commonwealth argues that statements by the defendant directly after her arrest amounted to admissions that the substance in question was cocaine, and that these admissions support its contention that the certificates were harmless beyond a reasonable doubt. Manning testified that when asked if she 'purchased her cocaine prepackaged,' the defendant replied that 'no, she bought an eightball at a time from Worcester.' Another officer testified that when asked about 'the cocaine [the defendant] stated that she picked it up in the [c]ity of Worcester . . . about an eight ball at a time; and she stated that she packaged it herself.' A police detective, qualified by the court as an expert in the area of cocaine distribution, testified that items at the scene were 'consistent with . . . possession with the intent to distribute cocaine,' and the same expert identified the substance recovered at Zani's apartment as cocaine, by sight only and without employing a field test. The Commonwealth also argues that the defense at trial did not focus on the nature of the substance at issue. Cf. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 243-244 (2009); but see Vasquez, supra at 368.
At no point before or after trial did the defendant stipulate that the substance was cocaine.
This circumstantial evidence did not overwhelm the erroneous admission of the drug certificates, in violation of the defendant's right to confrontation under the Sixth Amendment and Massachusetts law. Our holding is consistent with recent cases in which the defendant made statements identifying the substance in question as the contraband narcotics. In Vasquez, the defendant's convictions for possession and distribution of cocaine were reversed even where the testifying officer had purchased the substance directly from the defendant, and where the officer testified that the defendant had referred to the substance as 'an eightball of crack' during the transaction. Id. at 353 (internal quotations omitted). In that case an expert police witness at trial had identified the substance as cocaine, and the defense had not focused on the nature of the substance. Id. at 365-366 The convictions were nonetheless reversed by virtue of the erroneously admitted drug certificates, in spite of circumstantial evidence, which was stronger than the evidence here. Id. at 368. Further, the other evidence here is weaker than that in Commonwealth v. Harris, 75 Mass. App. Ct. 696 (2009), a case relied on by the Commonwealth in which the wrongful admission of certificates was held to be harmless error. In Harris, evidence presented at trial included a 'hit' from a drug-sniffing dog, in addition to an expert identification of the substance as cocaine and the defendant's written admission that the substance was cocaine. Id. at 697-698.
The Supreme Judicial Court granted further appellate review of Commonwealth v. Harris, 455 Mass. 1108 (2010), but the appeal was subsequently dismissed.
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Judgment reversed.
Verdict set aside.
By the Court (Trainor, Milkey & Agnes, JJ.),