Opinion
No. 08–P–2146.
2013-02-14
COMMONWEALTH v. Miguel A. FIGUEROA, Jr.
By the court (CYPHER, SIKORA & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant, Miguel A. Figueroa, Jr., of (1) possession of cocaine with intent to distribute; (2) possession of cocaine as a lesser included offense; and (3) a drug violation in a school zone. On appeal he argues that the decision of Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009) ( Melendez–Diaz ), requires reversal of the convictions because the trial judge admitted in evidence drug analysis certificates without providing him with the opportunity for cross-examination of the analyst in violation of his right under the confrontation clause of the Sixth Amendment to the United States Constitution. For the following reasons we affirm the convictions.
The jury found the defendant not guilty of the charge of conspiracy. On the first day of trial, the court dismissed a second charge of a drug violation in a school zone.
Background. The evidence permitted the jury to find the following facts. At approximately noon on March 21, 2007, two Worcester police detectives approached 10–12 Benefit Terrace in that city with a warrant to search the first-floor apartment. They decided first to attempt an undercover purchase of narcotics. One detective entered the front of the building and knocked on the door of the apartment.
When a man answered the door, the detective asked for a “twenty.” The man answered, “They're outside today.... They're in the white Honda.” The man then moved toward the front door of the building and pointed toward a car parked in the adjacent driveway.
The detective approached the passenger side of the Honda. The defendant was seated behind the wheel, and a second man occupied the passenger seat beside him. The detective handed the passenger a twenty-dollar bill and repeated the word “twenty.” The passenger handed the bill to the defendant; the defendant handed the passenger a knotted bag containing a hard, rock-like substance consistent in its appearance with the detective's prior observation of cocaine. The detective put the bag in his pocket and left the area.
About one-half hour later, multiple officers executed the search warrant. The defendant, the Honda passenger, and the first man (who had answered the door) were all present in the apartment. In a search of the defendant's person, one officer took from his pocket a knotted bag containing small, white, hard substance which he believed to be cocaine. A corroborating certificate of analysis came into evidence at trial. Another certificate confirmed the earlier “twenty” to be cocaine. Another officer found a wad of cash under a wallet. It included the marked twenty-dollar bill used for the driveway purchase. The search of the apartment turned up a box of plastic sandwich bags containing a razor blade and numerous cut baggies; several cellular telephones and walkie-talkies; and papers addressed to the defendant at the apartment.
The defendant testified at trial. On direct examination he admitted that the substance in his pocket in the apartment had been crack cocaine.
Q. “What happened when they searched you?”
A. “Well, they took my cell phone, my lighter, and a rock I had in my pocket.”
Q. “And what was the rock for? What do you mean by ‘rock’?”
A. “What they call cocaine. That's what I use.”
He went on to relate that he had begun to use cocaine upon his arrival in the United States two years earlier; that he had used it to relieve his depression as the result of the failure of his marriage; that he was smoking cocaine in the car on the day of his arrest and that he would have smoked the piece taken from his pocket . He understood the use of the word “twenty.”
The defendant remembered the approach of the undercover officer to the side of the car, but denied the transfer of any cocaine to him.
Several procedural developments add to the background of this appeal.
Before trial in April of 2008, the defendant submitted a motion in limine to exclude the drug analysis certificates as violative of his confrontation rights within the meaning of Crawford v. Washington, 541 U.S. 36, 59, 68–69 (2004). The judge denied the motion. In his original brief in this court, the defendant maintained that argument. He contended that the rationale of the Crawford decision overrode the intervening holding of Commonwealth v. Verde, 444 Mass. 279, 282–285 (2005), authorizing the introduction of analytical certificates without confrontation of their authors. He noted the allowance of certiorari and the pendency of the Melendez–Diaz case in the Supreme Court. Finally, in response to our order before oral argument in November of 2009, both the Commonwealth and the defendant analyzed the applicability of the Supreme Court's reasoning in Melendez–Diaz to this appeal.
After oral argument and submission of the appeal in this court, we stayed final resolution in anticipation of further appellate review by the Supreme Judicial Court of the case of Commonwealth v.. Mendes, 78 Mass.App.Ct. 474, 478–482 (2010), concerning the probative value of a defendant's subsequent testimonial acknowledgment of the identity of a controlled substance after the admission of a drug certificate without the testimony of an analyst as part of the prosecutor's case. In Commonwealth v. Mendes, 463 Mass. 353, 361–364 (2012), the court held such an acknowledgment to be part of the totality of the record under examination for determination of the harm or harmlessness resulting from the admission of a certificate in violation of the confrontation clause of the Sixth Amendment to the United States Constitution. See infra, at 8–9.
Discussion. 1. The Chapman standard. Under the standard of Chapman v. California, 386 U.S. 18, 23–24 (1967), we examine the record to determine whether the admission of the certificates constituted harmless error beyond a reasonable doubt. For that purpose we ask “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Ibid., quoting from Fahy v. Connecticut, 375 U.S. 85, 86–87 (1963). See Commonwealth v. Morales, 76 Mass.App.Ct. 663, 665 (2010).
Massachusetts decisions have articulated a number of factors for the determination of harmlessness beyond a reasonable doubt. They are “useful,” but “not exclusive or exhaustive.” Commonwealth v. Mahdi, 388 Mass. 679, 697 (1983). See Commonwealth v. Fluellen, 456 Mass. 517, 526 (2010). Each case requires its own analysis of circumstantial evidence. Commonwealth v. Mahdi, supra . Typical factors will be (a) the weight or quantum of proper evidence of guilt; (b) the importance of the tainted evidence to the prosecution's case; (c) the character of the tainted evidence as merely cumulative of the valid evidence or as independently probative; (d) the relationship between the improper evidence and the premise of the defense; (e) the frequency of reference to that evidence (presumably in both testimony and argument); and (f) the identity of the party introducing the evidence (typically the Commonwealth in certification cases). Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). Commonwealth v. Tyree, 455 Mass. 676, 701 (2010); Commonwealth v. Vasquez, 456 Mass. 350, 360–361 & n. 12 (2010). An additional factor will be the use or effect of curative instructions. Commonwealth v. Mahdi, supra at 697. See Commonwealth v. Loadholt, 456 Mass. 411, 432–433 (2010), S. C., 406 Mass. 723 (2011); Commonwealth v. Fluellen, supra.
The issue is not only whether the independent evidence was sufficient to support the conviction. See Commonwealth v. D'Agostino, 421 Mass. 281, 287 (1995) (even if the properly admissible evidence were sufficient to support conviction, the error was not harmless beyond a reasonable doubt; conviction reversed); Commonwealth v. Alicia, 6 Mass.App.Ct. 904, 905 (1978) (same). The Commonwealth carries the burden “to show that the wrongfully admitted evidence did not contribute to the verdict[ ]”. Commonwealth v. Charros, 443 Mass. 752, 765, cert. denied, 546 U .S. 870 (2005). Even if the untainted evidenced would support a finding of guilt, we ask the additional question whether the tainted evidence might have contributed to the ultimate finding, especially by a jury. Commonwealth v. Dagraca, supra at 554–555. Commonwealth v. Vasquez, supra at 362. The weight or quantum of proper inculpatory evidence remains a critical criterion. The Commonwealth must demonstrate that valid evidence of guilt was “overwhelming” or “so powerful as to nullify any effect” of the improper evidence upon the conviction. Ibid. (internal quotations and citations omitted).
3. Application of the Degraca criteria. a. Inculpatory evidence of possession of cocaine and intent to distribute. The jury received abundant evidence of both possession and distributive intent on the part of the defendant.
At the front door of the apartment, the undercover officer asked for a “twenty,” a street term for a twenty-dollar piece of crack cocaine known to the defendant. The man answering the door responded, “They're outside today,” and pointed to the automobile in the driveway. The officer then approached the car, in which the defendant was seated behind the steering wheel and another man beside him in the front passenger seat. The officer went to the passenger side, handed the passenger a twenty-dollar bill, and spoke the word “twenty.” The passenger handed the bill to the defendant; in turn the defendant handed the passenger a knotted bag containing a hard rock-like substance consistent with the appearance of cocaine known to the officer. The officer took the bag and left the area. The knotted bag came into evidence.
Independent of the certification, the officer's distinctive request for a typical saleable unit of cocaine to both the man at the door and the defendant in the car, and the defendant's transfer of a rock-like substance in a characteristically knotted bag, constitute circumstantial evidence of the cocaine nature of the substance. The door man's use of the word “today” indicates an ongoing practice of distribution. The exchange of the twenty dollars for the knotted bag was a distribution by the defendant. All three of the individuals at the premises had reacted concertedly and responsively to the request of an apparent customer.
Appearance and packaging are entitled to some probative value. See, e. g., Commonwealth v. Pratt, 407 Mass. 647, 653 (1990).
The ensuing search of the apartment pursuant to the existing warrant found all three men inside and turned up substantial trade evidence of distribution including a box containing a razor blade and numerous cut baggies; several cellular phones and two walkie talkies; and a “stack” of cash including the twenty-dollar bill used for the driveway purchase (identifiable by its recorded serial number).
Multiple telephone devices, especially in combination with other instruments, constitute evidence of drug distribution. Commonwealth v. Suarez, 59 Mass.App.Ct. 111, 115, 119 (2003); Commonwealth v. Dancy, 75 Mass.App.Ct. 175, 186 (2009).
The independent inculpatory evidence will include the defendant's own testimony. Commonwealth v. Mendes, 463 Mass. 353, 361–364 (2012). He took the position that he used cocaine but that he did not distribute it. He admitted that the knotted bag taken from his person in the apartment was cocaine but claimed that he had no memory of selling a knotted bag to the undercover officer a half-hour earlier in the driveway. The jury were free to draw the reasonable inference that both similarly packaged substances transferred from his person within a short time span were cocaine especially amid the surrounding array of circumstantial evidence. The aggregate force of the evidence indicates harmlessness beyond a reasonable doubt. See Commonwealth v. Villatoro, 76 Mass.App.Ct. 645, 654 (2010).
b. The importance of the evidence to the prosecutor's case; and c. Cumulative character. In the assessment of the total evidence, then, the certificates appear merely cumulative. In particular, the defendant's admission of the nature of the substance removed from his person renders them unnecessary for conviction.
d. The relationship of the evidence to the premise of the defense. The certificates had no relationship to the specific theory of defense. The theory was that the defendant merely used cocaine, but that he did not distribute it. Defense counsel emphasized it in the final words of her closing. “The only thing the Commonwealth has proven is possession ...., and I ask you to find Mr. Figueroa not guilty on all counts, except for possession of cocaine. Thank you.”
In neither his brief nor at oral argument has the defendant argued that the admissibility of the certificates induced him to adopt a position of partial guilt rather than total innocence. We do not face a “certificate made me do it” contention. In the circumstances of this case, that argument would have very little force.
e. References to the evidence. These were minimal. The prosecutor relied overwhelmingly upon the percipient testimony of the police officers participating in the surveillance of the apartment, the undercover buy, and the warranted search of the apartment. The prosecutor made no reference to the certificates throughout the course of his closing argument. The defendant's admission had closed the issue.
f. Curative instructions. At the time of trial, the admission of the certificates was proper under the rule of Commonwealth v. Verde, 444 Mass. 279, 282–285 (2005). The circumstances did not call for any request for curative instructions. The judge's only reference to the certificates was brief, accurate, and restrained.
He instructed:
“Now, you may consider on both the possession of cocaine charge and the possession of cocaine with intent to distribute a properly executed certificate from an analysis of—certificate from an analyst employed by the University of Massachusetts Medical School as evidence of the chemical composition, purity, and weight of the substance tested. You are not required to accept such evidence, but you may.”
Conclusion. In its critical details, the trial reduced to issues of credibility. The defendant testified that he had possessed cocaine; the jury believed him. He testified that he had not intended to distribute it; the jury disbelieved him. We are in no position to contradict the jury. We therefore respect the verdicts and affirm the convictions.
Judgments affirmed.