Com. v. Vasquez

• Decision Date: 26 March 2010
• Docket Number: SJC-10577
• Citation: 923 N.E.2d 524,456 Mass. 350
• Parties: COMMONWEALTH v. Jorge VASQUEZ.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

923 N.E.2d 524

456 Mass. 350

COMMONWEALTH v. Jorge VASQUEZ.¹

SJC-10577

Supreme Judicial Court of Massachusetts, Hampden.

Argued December 8, 2009.

Decided March 26, 2010.

Jon R. Maddox, Brookline, for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Debra S. Krupp, Committee for Public Counsel Services, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Todd C. Pomerleau, Danielle M. Wood, & Sarah M. Unger, for Pomerleau Wood LLP, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

MARSHALL, C.J.

The defendant was tried and convicted of possession and distribution of cocaine after our decision in Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005) (Verde), and before the United States Supreme Court issued Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (Melendez-Diaz); defense counsel did not object at trial to the admission of State police crime laboratory certificates of drug analysis (drug certificates). We consider whether in these circumstances the admission in evidence of the drug certificates in violation of the defendant's rights under the confrontation clause of the Sixth Amendment to the United States Constitution requires reversal of his convictions.

The defendant was convicted of distribution and possession of cocaine. See G.L. c. 94C, §§ 32A, 34. Immediately following trial, he pleaded guilty to subsequent offender charges related to the two distribution convictions. See G.L. c. 94C, § 32A (c) and (d). During his trial, without objection from defense counsel, the Commonwealth introduced in evidence three drug certificates attesting that certain substances sold or possessed by the defendant were cocaine. The analysts who signed the drug certificates did not testify at trial, and defense counsel had no prior opportunity to cross-examine them. The admission of the drug certificates was in accord with our holding in Verde, where we concluded that drug certificates were not "testimonial statements" within the meaning of the confrontation clause of the Sixth Amendment, Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford),² and were admissible against a criminal defendant under the "public records" exception to the hearsay rule. See Verde, supra at 284, 827 N.E.2d 701 (drug certificates "are well within the public records exception to the confrontation clause"). After the defendant's trial had concluded, the Supreme Court granted certiorari in Melendez-Diaz, supra.³ Melendez-Diaz abrogated Verde, and the Supreme Court held expressly that drug certificates are within the category of out-of-court testimonial statements whose admission in evidence against a criminal defendant triggers the protections of the confrontation clause. See Melendez-Diaz, supra at 2532.

The defendant appealed from his convictions, raising a Melendez-Diaz challenge for the first time. See Commonwealth v. Vasquez, 75 Mass.App.Ct. 446, 451, 914 N.E.2d 944 (2009). A divided panel of the Appeals Court upheld the convictions and reported the "[i]ssues involving the drug certificates" to this court. Id. at 462, 914 N.E.2d 944. See G.L. c. 211A, § 12.⁴

As we explain below, defense counsel's actions with regard to the admissibility of the drug certificates must be considered in light of our decision in Verde, which unquestionably was binding on the judge. Because any objection to the admissibility of the drug certificates would have been futile, and because the constitutional issues at stake for the defendant are substantial, we review the constitutional error as though preserved by proper objection at trial. Applying that standard to this case, we cannot say that the admission of the drug certificates was harmless beyond a reasonable doubt. See Commonwealth v. Vinnie, 428 Mass. 161, 163, 698 N.E.2d 896, cert. denied, 525 U.S. 1007, 119 S.Ct. 523, 142 L.Ed.2d 434 (1998) (preserved constitutional errors reviewed "to determine whether or not they were harmless beyond a reasonable doubt"). We reverse the judgments, set aside the verdicts, and remand for a new trial.⁵

1. Facts. We first summarize the facts as the judge at this jury-waived trial could have found them, reserving discussion of certain facts to later sections of this opinion.

In 2005, the Hampden County narcotics task force (task force), operating under the auspices of the State police, was investigating narcotics trafficking in the South End section of Springfield. Acting on information developed in the course of the investigation, on July 7, 2005, State Trooper Henot Rivera, a member of the task force, went undercover to 284 Dwight Street Extension, apartment 4 left (4L), to attempt to purchase cocaine from an individual known to him only as "Flaco," whom Rivera later identified as the defendant. Rivera knocked on the door of apartment 4L, was allowed inside by an unknown man, and was then introduced to the defendant. Rivera, who testified that all of his conversations with the defendant were in Spanish, asked the defendant for an "eight ball."

Rivera testified that the defendant "sent" an unknown man "to retrieve that amount of crack cocaine"; the man left the apartment and after returning gave the defendant "the crack cocaine that [Rivera] had ordered," which Rivera purchased from the defendant for $120 in prerecorded police "buy money." The entire transaction took approximately five minutes. On leaving the apartment, Rivera testified that he gave "the eight ball of crack cocaine" to an "evidence officer," who took the material to a State police crime laboratory to be analyzed.

The task force's investigation of narcotics distribution at 284 Dwight Street Extension was then temporarily suspended because of another law enforcement operation in the area. On October 18, 2005, Rivera again returned in an undercover capacity to apartment 4L. He was met on the fourth-floor porch outside the apartment by the same unknown man who had allowed him into the apartment on July 7, 2005. When Rivera said that he wanted to purchase crack cocaine, the defendant came out of the apartment onto the porch where Rivera asked for an "eight ball of crack." The defendant only had "sixteenths," which, Rivera testified, were "smaller amounts of crack." The defendant, in Spanish, "called down" to "Munchy," later identified as Juan Rebollo, and "summonsed him up to bring an eight ball of crack." When Rebollo came to the fourth floor, the defendant invited Rivera into the apartment, where the defendant told Rebollo, "Go ahead and sell [Rivera] the crack." On cross-examination, Rivera testified that the defendant's "exact words" to Rebollo were, "Sell to him." Rivera testified that he then purchased "an eight ball of crack cocaine" from Rebollo for $120 in marked police "buy money," and then followed the same procedure he had used on July 7 for securing and analyzing the materials.

On October 20, 2005, police officers executed a search warrant for 284 Dwight Street Extension, apartments 4L and 2R. They encountered a number of individuals throughout apartment 4L, including the defendant, from whom they recovered $493 in cash and some keys. From apartment 4L they also recovered a pair of scissors, sandwich bags, a scale, $274 in a "running" toilet bowl, a "walkie-talkie," a set of keys, a utility bill, and a clear white bag containing a white powdery substance. From apartment 2R, they recovered a strong box with $2,905 in cash, rubber bands, and some documents in the defendant's name, among other things. The defendant was arrested at the scene.

2. The trial. Through Trooper Rivera, the prosecutor introduced in evidence the substances that Rivera purchased on July 7 and October 18, as well as corresponding drug certificates attesting that each substance contained cocaine. Through Trooper Juan Colon, another member of the task force, the Commonwealth introduced in evidence a small bag of white powder recovered on October 20 from apartment 4L, and a corresponding drug certificate attesting that the substance was cocaine. Defense counsel did not object to the admission of any of the alleged narcotics or the drug certificates,⁶ nor did he object to the Commonwealth's characterization of the substances as "drugs" or "crack cocaine" in the prosecutor's questions. In his closing argument, defense counsel appeared to concede that the substances in question were narcotics. For example, he told the judge that the police "found no fingerprints on anything they had in terms of three separate sets of drugs." At another point in his closing argument, he called the materials "contraband." The defendant, however, did not stipulate that the substances were cocaine.

The defense was mistaken identity. Defense counsel called three witnesses—the defendant, his girl friend, and the eleven year old son of the defendant's girl friend—for the purpose of establishing that, at the time of the alleged narcotics sale on July 7, 2005, all three were driving from Springfield to John F. Kennedy International Airport in New York City, where the son would fly to Puerto Rico. The viability of the alibi was severely tested at trial.

In addition, the defendant testified that he had not witnessed the transaction between Trooper Rivera and Juan Rebollo on October 18, 2005. Rebollo was called by the defense and questioned about the October 18 transaction. He largely confirmed the defendant's testimony that the defendant was not involved in the October 18 drug deal. On cross-examination by the Commonwealth, Rebollo admitted that in connection with a plea bargain on charges related to the October 18 transaction, he had admitted under oath to the truth of facts read into the record that he, Rebollo, had been instructed by the defendant to sell crack cocaine to Rivera. Rebollo explained that the statement of facts ...