Com. v. Johnson

• Decision Date: 05 January 2010
• Docket Number: No. 08-P-639.,08-P-639.
• Citation: 76 Mass. App. Ct. 80,918 N.E.2d 876
• Parties: COMMONWEALTH v. Kevin JOHNSON.
• Court: Appeals Court of Massachusetts

918 N.E.2d 876

76 Mass. App. Ct. 80

COMMONWEALTH v. Kevin JOHNSON.

No. 08-P-639.

Appeals Court of Massachusetts, Hampden.

Argued September 16, 2009.

Decided January 5, 2010.

Brad P. Bennion for the defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Present: GREEN, GRAHAM, & FECTEAU, JJ.

GRAHAM, J.

Following a jury trial in the Superior Court, the defendant, Kevin Johnson, was convicted of trafficking in cocaine with a net weight of twenty-eight grams or more and less than one hundred grams, refusal to submit to a police officer, and negligent operation of a motor vehicle. He appeals only from the trafficking conviction, contending that (1) the admission in evidence of a drug certificate of analysis, without live testimony by the chemist, requires reversal of his conviction on the drug charge, see Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); and (2) the Commonwealth's improper use of profile evidence created a substantial risk of a miscarriage of justice. We affirm.

Facts. Viewed in a light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the jury could have found the following facts. On October 5, 2005, Chicopee police Officer Paul Gay was at the police station and read an interdepartmental electronic message alerting the officers that the department was looking for a dark sport utility vehicle (SUV) with shiny wheels, possibly with a black suspect operating the vehicle, who had been involved in a crime within the previous weeks. At approximately 5:15 P.M., Gay left the police station and was traveling on Main Street in Chicopee, in an unmarked vehicle with Lieutenant Lonny Dakin and Detectives Leclair and Liszka. Gay's attention was drawn to a dark SUV, occupied by a black male, parked in front of a package store. Leclair turned the vehicle around and turned into an adjacent parking lot directly across the street from the parked SUV. Shortly thereafter, a male drove a bicycle to the passenger side of the SUV, spoke briefly with the operator of the SUV, then rode away on the bike.

The officers ran a check of the license plate on the SUV and learned that the owner of the SUV was Kevin Johnson, who possessed a Massachusetts identification card but not a valid driver's license. The officers followed the SUV to a Walmart shopping area parking lot and then activated the vehicle's lights and siren. The SUV continued into the parking lot, turning left toward the front of a Marshall's store. Dakin observed the defendant toss something from the SUV and instructed Gay to get out of the vehicle and search for the item tossed. The remaining officers continued to follow the SUV.

Gay searched the area where the item had been tossed and, approximately twenty feet from the area where he began the search, found a clear plastic baggie containing what he believed to be crack cocaine. Using his police radio, Gay informed Dakin and Leclair that he had recovered a large quantity of cocaine.

Meanwhile, the defendant continued to drive the SUV through the parking lot, went through a red light at an intersection, and drove onto the Massachusetts Turnpike. The defendant then left the turnpike, entered the parking lot of a BJ's Wholesale Club, and brought his vehicle to a stop after traveling about 100 yards. There he was arrested. On his person, the officers seized a cellular phone and $90. No illegal drugs were recovered from his person or from the SUV. The defendant was transported to the police station, where he was booked.

At trial, the defense did not contest the fact that the defendant possessed the cocaine, but contended that he possessed the cocaine for personal use, not for sale. To combat this claim, Dakin gave expert testimony, generally, as to how cocaine was sold on the streets in Chicopee, and informed the jury that the cocaine recovered by Gay was valued at $3,500, but could be separated into small pieces that could be sold individually for twenty dollars each for a total sale price of over $9,000. He further testified that "[t]he crack user would not have the type of money needed to purchase this. A crack user needs to get high, so the time they have a[$]20, they go out and buy a 20 to get high." Finally, Dakin testified that, based upon his training and experience, the amount of cocaine possessed by the defendant was consistent with distribution, and not personal use.

1. Introduction of the drug certificate. At trial, a certificate of analysis from the State crime laboratory was introduced by the Commonwealth and admitted in evidence. The certificate stated that the substance seized by police and connected to the defendant was cocaine weighing ninety-eight grams. The defendant argues that he had a right under the confrontation clause of the Sixth Amendment to the United States Constitution to examine the chemical analyst whose affidavit was introduced to establish that the substance that he possessed and that was recovered by Leclair was ninety-eight grams of cocaine.

In Melendez-Diaz, supra, the Supreme Court ruled that "analysts' affidavits are `testimonial statements' and that `[a]bsent a showing that the analysts were unavailable to testify at trial and that [a defendant] had a prior opportunity to cross examine them,' a defendant has a right to confront the analysts at trial." Commonwealth v. Connolly, 454 Mass. 808, 830, 913 N.E.2d 356 (2009), quoting from Melendez-Diaz, supra at 2532 (emphasis in original). Here, as in Melendez-Diaz, there was no showing that the analyst was unavailable, and the defendant had not previously cross-examined her. Therefore, under Melendez-Diaz, admission of the certificate of analysis was error.

Although the defendant failed to preserve the issue at trial, we need not consider the appropriate standard of review, compare Commonwealth v. Vasquez, 75 Mass.App.Ct. 446, 451-462, 914 N.E.2d 944 (2009), and id. at 462-463, 914 N.E.2d 944 (Dreben, J., dissenting), as we conclude that, even under the more stringent standard of review for preserved error, the error here was harmless beyond a reasonable doubt. See, e.g., Commonwealth v. Connolly, 454 Mass. at 832, 913 N.E.2d 356.

"The admission of testimony obtained in violation of a defendant's confrontation rights will not amount to reversible error `if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.'" Commonwealth v. Miles, 420 Mass. 67, 73, 648 N.E.2d 719 (1995), quoting from Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Commonwealth v. Rosario, 430 Mass. 505, 511, 721 N.E.2d 903 (1999). A court must determine "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction," Commonwealth v. Perez, 411 Mass. 249, 260, 581 N.E.2d 1010 (1991), quoting from Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or, put differently, "whether overwhelming evidence of the defendant's guilt exists without the erroneously admitted evidence." Commonwealth v. Perez, supra, citing Milton v. Wainwright, 407 U.S. 371, 372-373, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).

Here, the Commonwealth must prove beyond a reasonable doubt that the substance possessed by the defendant was in fact cocaine. Besides the certificate of analysis, there was direct evidence that the substance in fact was cocaine. This evidence was presented through testimony of the Commonwealth's expert witness, Dakin, both on direct and cross-examination. Dakin's description of the amount and value of the substance was sufficient to meet the threshold for the trafficking charge. In addition, Dakin testified that the cocaine had been weighed at the police station and that the initial weight of the...