State v. Navarro

Citation621 A.2d 408
PartiesSTATE of Maine v. Michael NAVARRO.
Decision Date02 March 1993
CourtMaine Supreme Court

Janet T. Mills, Dist. Atty., Kevin J. Regan, Asst. Dist. Atty., Vicki S. Mathews, law student intern (orally) Auburn, for plaintiff.

William Maselli, (orally) Auburn, for defendant.

Before WATHEN, C.J. and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

RUDMAN, Justice.

Michael Navarro appeals from the Superior Court (Androscoggin County, Delahanty, C.J.) judgment entered on a jury verdict finding him guilty of aggravated trafficking of scheduled drugs, 17-A M.R.S.A. §§ 1103 and 1106 (1983 & Supp.1992). Navarro argues that the Superior Court committed reversible error by: (1) denying his motion to suppress the marked currency found on his person during a search incident to his arrest; (2) admitting in evidence the testimony of a chemist concerning his analysis of the powder in issue as well as the certificate of analysis; (3) allowing the State to amend its indictment after the close of the State's case; and (4) denying his motion for a new trial on the ground that the State had affirmatively manipulated the trial process to deny him access to the testimony of a material exculpatory witness. Navarro also challenges the sufficiency of the evidence. Finding no reversible error, we affirm the judgment.

Facts

Under police supervision, Ricky Breton, a police informant, attempted to buy a controlled drug from Navarro with marked funds. Rebuffed by Navarro, Breton asked (co-defendant turned State's witness) Tammy Violette to purchase the cocaine for him. Breton gave Violette the marked funds and a short time later she returned with a package of cocaine. The police, who were outside, observed Violette go into Navarro's apartment and then return to her apartment shortly thereafter. According to Violette's testimony, when she went to Navarro's apartment, Navarro answered the door, took the marked funds and handed Violette a bag of cocaine. Based on the controlled purchase, as well as other surveillance information, a warrant was obtained to search Navarro's apartment, and on entry, five persons were placed under arrest. A search of Navarro revealed a marked bill used during the controlled cocaine purchase. Inspection of the apartment revealed cash, including a marked bill from the earlier drug transaction, two bags of white powder suspected to be cocaine, a radio scanner set to the Lewiston Police frequency, and a box of Zig-Zag papers and sandwich baggies.

Procedure

Navarro, along with Antonio Cabeja, Fernando Trinidad, Sergio Santana and Tammy Violette, was indicted for aggravated trafficking in a schedule W Drug, namely, cocaine, pursuant to 17-A M.R.S.A. §§ 1103 and 1106. Specifically, the indictment charged that the defendants did:

knowingly traffick what they knew or believed to be a scheduled drug, namely, cocaine, and which is, in fact, a scheduled W drug, by intentionally or knowingly possessing said cocaine with the intent to sell, barter, trade, exchange or otherwise furnish it for consideration to Ricky Breton, and at the time of the offense, Defendants were on or within 1,000 feet of real property comprising a private or public elementary or secondary school.

(emphasis added). The Superior Court (Bradford, J.), finding that there was probable cause for his arrest, denied Navarro's pretrial motion to suppress the evidence secured at the time of his arrest. Two days before the start of the trial, co-defendant Sergio Santana filed a jury trial waiver effectively severing his trial from that of Navarro. A day before trial, Navarro filed a motion to dismiss his indictment, or in the alternative, to continue the trial, alleging, inter alia, that the State had refused to make Tammy Violette or Sergio Santana available, which motion was denied. Further, Navarro sought, to no avail, to have Santana's attorney, as well as the District Attorney, offer evidence regarding any plea bargain between the State and Santana and to explain why the plea would not be entered prior to his trial.

Following the trial, the jury found defendant Navarro guilty of aggravated trafficking in cocaine as charged and Navarro unsuccessfully sought a new trial.

Navarro then filed this timely appeal.

I

Denial of motion to suppress

At the hearing on Navarro's motion to suppress the evidence seized incident to his arrest, the court heard the testimony of Michael Buchanan that on entry into the apartment, he saw Navarro lying on the floor between the living room and kitchen where he had apparently been placed by another officer. Buchanan immediately handcuffed Navarro and informed him that he was being arrested for violation of state narcotic laws. After drugs had been found on the premises, Buchanan proceeded to search Navarro's person. Buchanan found one of the marked bills used in the controlled drug buy.

Navarro argues that since "no evidence accrued during the execution of the [search] warrant prior to [his] arrest" that established probable cause for the arrest, the evidence that was seized from him during his arrest should have been suppressed. The State contends that the search was incident to a lawful arrest.

"Probable cause to arrest 'exist[ed if] facts and circumstances within the knowledge of the officers and of which they [had] reasonably trustworthy information would warrant a prudent and cautious person to believe' " that Navarro had violated state narcotics laws. See State v. Fogg, 410 A.2d 548, 550 (Me.1980). Whether probable cause exists to arrest an individual is determined by the particular facts and circumstances under which the arrest occurred. State v. Cote, 518 A.2d 454, 456 (Me.1986). The court's finding of probable cause will not be set aside unless clearly erroneous. State v. Fogg, 410 A.2d 548, 550 (Me.1980).

The officers knew that cocaine had been sold recently from the apartment while Navarro was present. Further, on entry they found the door barricaded and the occupants, including Navarro, running around the apartment. The record supports the finding by the court of probable cause to believe that Navarro had violated the law. The motion to suppress was properly denied.

II

Admission in evidence of the testimony of a chemist

concerning his analysis of the powder and the

certificate of analysis

At trial, Roger Morgner, a chemist with the Department of Human Services, testified on behalf of the State that the chemical analysis of the substance seized indicated that it contained cocaine. Morgner also prepared a certificate of the analysis.

When the State attempted to introduce the certificate in evidence, Navarro asked for, and received, permission to cross-examine Morgner. He established that Morgner had no independent recollection of the tests he performed on the samples in question, and that the papers, on which Morgner's testimony was relying, were in fact copies of his original notes, which were in Morgner's office in Augusta.

The court, over Navarro's objection, admitted the certificate and denied Navarro's motion to strike Morgner's testimony on the ground that its admission violated the best evidence rule articulated in State v. Degen, 552 A.2d 2 (Me.1988). On appeal, Navarro challenges this ruling.

A. The Testimony

We agree with Navarro that State v. Degen controls. Like the present case, in Degen, a chemist read at trial from copies of his notes, the originals of which were in Augusta. Degen, 552 A.2d at 3. In Degen, we reasoned that while the testimony met the requirements for recorded recollection, material being used as past recollection recorded is subject to the best evidence rule. See id. 552 A.2d at 3. We proceeded to reach the conclusion, which is inexorable in this case, that the testimony in question was admitted contrary to the best evidence rule. See id.; M.R.Evid. 1002.

As in Degen, however, the admission of Morgner's testimony was harmless error. As we noted in Degen:

"[w]hen it comes to ... appeal, an asserted error in admitting secondary evidence may be classed as harmless. The purpose of the best evidence rule is to secure the most reliable information as to the contents of a document when its terms are disputed. The rule is not an end in itself. Consequently, if complaining counsel is asked whether there is an actual dispute as to the terms of the writing and he cannot give assurance that such a good faith dispute exists, any deviation from the rule would be harmless error." M.R.Evid. 1004 advisers' note; Field & Murray, Maine Evidence pp. 418-19 (1987).

Degen, 552 A.2d at 4. In this case, the State properly points out that at no point did Navarro question the accuracy of the photocopies of the chemist's notes or his underlying analysis. We accordingly conclude that the error was harmless. See M.R.Crim.P. 52(a).

B. The Certificate

We agree with Navarro that the admission of the certificate was error. Title 17-A M.R.S.A. § 1112 (1983) provides in relevant part that:

1. A laboratory which receives a drug or substance from a law enforcement officer ... for analysis as a scheduled drug shall, if it is capable of so doing, analyze the same as requested, and shall issue a certificate stating the results of such analysis. Such certificate ... shall be admissible in evidence in any court of the State of Maine, and shall be prima facie evidence that the composition, quality and quantity of the drug or substance are as stated therein, unless with 10 days written notice to the prosecution, the defendant requests that a qualified witness testify as to such composition, quality and quantity[,]

17-A M.R.S.A. § 1112 (1983) (emphasis added). Navarro filed a timely motion to have the State produce a qualified witness.

The statutory language is clear. Once the defendant requests a qualified witness, the certificate is neither admissible nor prima facie evidence of the "composition, quality, and quantity of the drug or substance stated...

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