Commonwealth v. Mendes

• Decision Date: 05 September 2012
• Docket Number: SJC–10926.
• Citation: Commonwealth v. Mendes, 463 Mass. 353, 974 N.E.2d 606 (Mass. 2012)
• Parties: COMMONWEALTH v. Ronald MENDES (and six companion cases ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 353

974 N.E.2d 606

COMMONWEALTH

v.Ronald MENDES (and six companion cases ¹).

SJC–10926.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 7, 2012.

Decided Sept. 5, 2012.

Kevin J. Curtin, Assistant District Attorney(James J. Mulcahy, Assistant District Attorney, with him) for the Commonwealth.

Valerie A. DePalma, Brooklyn, for Ronald Mendes.

Pamela Symmes Segre, Cambridge, for Raymond B. Mendes.

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

CORDY, J.

In March, 2008, after a jury trial in the District Court, the defendants, brothers Ronald and Raymond B. Mendes,² were convicted of several violations of the controlled substances laws, including the possession of class B and class D substances (cocaine and marijuana, respectively) with intent to distribute.³On appeal, they primarily claim that the admission of certificates of drug analysis (drug certificates) to prove the chemical composition of the drugs seized in their shared apartment, a practice subsequently declared unconstitutional by Melendez–Diaz v. Massachusetts,557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314(2009)( Melendez–Diaz ), was constitutional error that was not harmless beyond a reasonable doubt.They also argue that the search warrant affidavit failed to establish a nexus between alleged drug dealing and their apartment, and that the admission in evidence of police testimony recounting requests by third parties to purchase drugs from the defendants violated their constitutional right of confrontation.⁴

A divided panel of the Appeals Court reversed the convictions based on the improperly admitted drug certificates, even though the defendants both testified at trial and admitted that they possessed the drugs, but for personal use.Commonwealth v. Mendes,78 Mass.App.Ct. 474, 484, 940 N.E.2d 467(2010).The court reasoned that the defendants' testimony could not be considered when evaluating whether the admission of the drug certificates was harmless beyond a reasonable doubt, because the erroneous admission tainted the defendants' entire testimony and it would have been impossible to determine whether or how the defendants would have testified had the certificates not been admitted.Id. at 480–482, 940 N.E.2d 467.The dissenting Justice reasoned that the entire trial record must be considered, and concluded that the defendants' testimony provided “powerful substantive evidence” that the substances were in fact the drugs the Commonwealth alleged them to be, which, in conjunction with testimony by the Commonwealth's witnesses, nullified any effect that the certificates may have had on the jury.Id. at 484–491, 940 N.E.2d 467(Berry, J., dissenting in part).We granted the Commonwealth's application for further appellate review, and now affirm the convictions.

1. Background. a. The Commonwealth's case.On the morning of October 21, 2006, Somerville police Detective James Hyde and other police officers executed a search warrant at the defendants' apartment, located in Somerville, directly across the street from a playground.The police provided the defendants with a copy of the search warrant and advised them of their Miranda rights.The defendants initially denied that any drugs were in the apartment, but Raymond later admitted that there were “some trees”—slang for marijuana—in his bedroom.

At trial, Detective Hyde and Detective Dominic Pefine, another member of the search team, testified regarding the evidence recovered in the apartment.In Ronald's bedroom the officers seized a bag containing 1.46 grams of cocaine on the bureau, twelve bags of marijuana located in a shirt pocket, $943 in his closet, $158 on top of a television set, and a cellular telephone.In Raymond's bedroom, the officers seized a clear plastic bag containing .46 grams of cocaine and two tablets of methylenedioxy methamphetamine, also known as “MDMA” or “Ecstasy,” in a vase on top of his dresser; $240 in one dresser drawer and $500 in another drawer; a cardboard box under his bed containing a bag of marijuana, $420, and a one-hundred-gram weight associated with a triple-beam scale; and a cellular telephone.During a search of the living room, two additional bags of marijuana were found in Ronald's brown leather jacket.For each drug, Hyde identified the substance generically as “what appears to be a herbal residue,”“a white powder substance,” or “orange tablets,” and then read a corresponding certificate of analysis identifying the substance as cocaine, marijuana, or Ecstasy.

In the kitchen, police seized some personal papers of the defendants, two notebooks, a clear plastic bag with one of the corners cut off, and three additional cellular telephones.On the front of one of the notebooks was written the phrase, “write down people that owe money.”Both notebooks contained lists of names with dollar amounts.

The police conducted a second sweep of the apartment with a drug detection canine.The canine reacted to all the locations in which the police had previously found drugs.Neither sweep revealed paraphernalia associated with personal use of drugs.

While executing the search warrant, Detective Hyde monitored the cellular telephones.The telephones received ten to twelve calls over the course of the morning.The callers asked to speak to “Ray or Ron,” and alluded to purchasing drugs.Detective Hyde testified in detail about two conversations, in which he directed the would-be purchasers to a particular location, sent a marked cruiser to that location, and arranged for police to intercept them.

Detective Sergeant David Montana, the head of the Medford police department's drug control unit, testified as an expert witness for the Commonwealth.Among other things, he explained what cocaine and marijuana look like, the forms they may take, and how they are ingested or packaged for sale.Detective Sergeant Montana was shown some of the bags of drugs that were in evidence.He stated that he“believe[d]” that one substance in evidence was “about half a gram” of cocaine and that another substance “look[ed] like it's marijuana.”In response to a hypothetical question, it was his opinion that the summary of the evidence put to him was not consistent with personal use.

b. The defendants' case.The theory of the defense was that the drugs found in the apartment were for personal use rather than distribution.Raymond called Dr. Alan Wartenberg, who testified regarding his extensive training and experience in addiction treatment and the consumption and purchasing habits of heavy drug users.Ronald called a friend who testified, among other things, that he would smoke marijuana with Ronald.In addition, each defendant testified in his own behalf.

Raymond testified that he kept large amounts of currency in the house because he did not have a bank account and his employer paid him “underneath the table.”He explained that the records found by the police were for the purpose of keeping track of money that the defendants' friends had pledged to help buy music studio time for his son, an aspiring musician.With respect to his personal drug use, he testified that he bought one ounce of marijuana per week for about $180.He would then buy a “philly blunt” or a “roll-up,” break it down, and fill it with marijuana laced with cocaine.Using a “roach clip,”he typically smoked the blunt to the end.He kept this item in his “junk drawer” or closet.When asked by his attorney why he kept “the drugs” in the places where Detective Hyde testified he had found them, Raymond responded that he was hiding them from his children, who would visit on weekends.Raymond also testified that he and his brother would smoke marijuana together.On cross-examination, he added that he would take Ecstasy pills as a “sex drug” when “a lady friend” came to visit.

Ronald testified that he smoked marijuana daily, sometimes three or four times per day, and purchased it twice per week from a dealer in the neighborhood playground.He smoked the marijuana using “blunts,”“wraps,” and rolling paper, which he kept in his wallet.He also used cocaine about three times per week.He would sprinkle the cocaine on his marijuana and smoke it.He admitted that he owned the two bags of marijuana found in the jacket in the living room and the twelve bags of marijuana found in the shirt in the bedroom, explaining that he had purchased marijuana for his personal use from a dealer who only sold it to him in “dime bags” because he had no bags with larger quantities at the time.He also admitted to owning the cocaine found in his bedroom.

2.Certificates of drug analysis.As the Commonwealth concedes, the submission in evidence of the drug certificates without the testimony of the analyst that prepared them violated the defendants' right of confrontation as guaranteed by the Sixth Amendment to the United States Constitution.SeeCommonwealth v. Charles,456 Mass. 378, 381, 923 N.E.2d 519(2010), citingMelendez–Diaz v. Massachusetts,557 U.S. 305, 310–311, 129 S.Ct. 2527, 174 L.Ed.2d 314(2009).Although the defendants did not object at trial to the admission of the certificates on confrontation clause grounds, such an objection would have been futile at the time of the trial because of our decision in Commonwealth v. Verde,444 Mass. 279, 827 N.E.2d 701(2005), abrogated byMelendez–Diaz v. Massachusetts, supra.SeeCommonwealth v. Vasquez,456 Mass. 350, 356–358, 923 N.E.2d 524(2010).The objection is accordingly deemed preserved, and we must determine whether the error was harmless beyond a reasonable doubt.Seeid. at 360, 923 N.E.2d 524.

When analyzing whether an error was harmless beyond a reasonable doubt, “we ask whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's...