Commonwealth v. Munoz

• Decision Date: 15 December 2011
• Docket Number: SJC–11028.
• Citation: 461 Mass. 126,958 N.E.2d 1167
• Parties: COMMONWEALTH v. German MUNOZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

461 Mass. 126

958 N.E.2d 1167

COMMONWEALTH

v.German MUNOZ.

SJC–11028.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Oct. 4, 2011.Decided Dec. 15, 2011.

Cynthia Vincent Thomas for the defendant.

Karen L. Carlo, Assistant District Attorney, for the Commonwealth.

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

LENK, J.

The defendant appeals from his conviction of trafficking in over fourteen grams of cocaine, G.L. c. 94C, § 32E.¹ He contends that the Commonwealth violated his right to confront the witnesses against him when it introduced evidence from laboratory drug tests through the testimony of a substitute analyst rather than through the analyst who performed the tests. He contends further that the trial judge erred in admitting certain hearsay statements. Finally, he argues that his trial counsel was constitutionally ineffective. Although much of the challenged testimony was erroneously admitted, this testimony did not create a substantial risk of a miscarriage of justice; nor was the defendant denied the effective assistance of counsel. We therefore affirm the conviction.

1. Facts. The following are the facts the jury could have found; we reserve certain details for later discussion. On March 2, 1994, Pittsfield police officers stopped a car driven by the defendant. The car was leased in the names of two other men, one of whom, the front seat passenger, was sixteen years old. Officers searched the vehicle and found three large plastic bags that contained a substance resembling “crack” cocaine. The police also seized a pager and two “walkie-talkies” from the vehicle.

The defendant and his passenger were then arrested and given Miranda warnings. ² In the presence of another Pittsfield police officer, Detective Terrence Donnelly asked the defendant whether the police had found all the cocaine in the vehicle. The defendant told Donnelly, “I think that there [were] only the three bags.” Donnelly recorded this statement in a near contemporaneous report, which was reviewed by the other officer, Sergeant Glen Decker.

The same evening, Donnelly “field tested” the substance in the seized bags and weighed the substance and bags on a scale, apparently in Decker's presence.³ The test indicated that the substance was cocaine.⁴

The seized bags were sent to the Department of Public Health drug laboratory (laboratory), where samples of their contents were weighed and tested by Paul Jaszek, who was then a senior chemist, or supervisor, at the laboratory. Jaszek's analysis proceeded in two parts. First, Jaszek verified the net weight of the substance by subtracting the estimated weight of the plastic bags, based on a sample of them, from the gross weight of the bags and the substance combined. He recorded this net weight as 19.90 grams. Next, Jaszek confirmed that the seized substance was in fact cocaine. He did this by running samples of the substance through a gas chromatograph and a mass spectrometer. The chromatograph generated a printout of the “retention times” of each compound in the sample. The mass spectrometer generated a printout of the “fragmentation pattern” of the sample. Both sets of results were consistent with the expected results for cocaine.

Trial was scheduled for July 7, 1994. However, the defendant defaulted, remaining a fugitive until February, 2010. In the interim, Jaszek retired and Donnelly passed away. Donnelly's reports, Jaszek's notes and test results, and the machine data generated by Jaszek's tests were preserved.

At the May, 2010, trial, the laboratory's then senior chemist, James Hanchett, testified in the retired Jaszek's place. Hanchett had been a drug analyst for over thirty years, the majority of those as Jaszek's colleague. Jaszek had trained Hanchett and for some period of time had been Hanchett's supervisor.

Hanchett's testimony covered (1) the procedure Jaszek followed in weighing and analyzing the contents of the bags; (2) the conclusions that Jaszek drew from this analysis; and (3) the conclusions that Hanchett “would have made” in Jaszek's position. Because Hanchett did not retest or reweigh the seized substance himself, his testimony was based on information contained in Jaszek's notes and reports as well as the machine printouts generated by Jaszek's analysis.⁵ After Hanchett testified that he had reviewed each of these documents, the prosecutor asked him:

Q.: “Again, in reviewing that data, can you form an independent opinion that the substance[ ] that went through the machine after reviewing the data was Class B, cocaine?”

A.: “Yes, I would have made the same decision as [Jaszek] made calling it cocaine....”

Hanchett stated also that he agreed with Jaszek's method of weighing the seized substance, and that he too would have concluded the substance weighed 19.90 grams.

The Commonwealth's other main witness was Decker, who testified to the events of the night of the defendant's arrest, sixteen years prior to trial. Decker stated that he could not recall the details of the conversation he witnessed between Donnelly and the defendant. He was then allowed to read a redacted version of Donnelly's report to the jury. The report, however, did more than summarize the conversation Decker had forgotten. It recited the full details of the stop, search, booking, and arrest, details that Decker was able to testify to without assistance from Donnelly's report. Subsequently, the defendant entered a redacted copy of Donnelly's report into evidence. Defense counsel believed that the report tended to show that the defendant's passenger was the true owner of the drugs, consistent with the defendant's theory at trial.

2. Discussion. a. Standard of review. We consider first the standard of review applicable to the defendant's two claims of error: violation of his confrontation clause rights through Hanchett's testimony and improper admission of hearsay testimony through Decker's use of recorded recollection.

While trial counsel objected to Hanchett's testimony, it was on the basis of lack of foundation and was not targeted at the propriety of such testimony under the confrontation clause.⁶ Accordingly, the claim was not preserved. As to the hearsay claim, with one exception, see note 16, infra, the defendant did not object to the admission of the statements in police reports that he now contends are hearsay. Thus, this claim also was not preserved.

Accordingly, we review only for a substantial risk of a miscarriage of justice, that is, to determine “if the evidence and the case as a whole ... [leave] us with a serious doubt that the defendant['s] guilt [has] been fairly adjudicated.” Commonwealth v. Vasquez, 456 Mass. 350, 356, 923 N.E.2d 524 (2010), quoting Commonwealth v. Amirault, 424 Mass. 618, 646–647, 677 N.E.2d 652 (1997).

b. Substitute analyst's testimony on the identity of the cocaine. The defendant's primary argument on appeal is that Hanchett's testimony as to the weight and composition of the cocaine seized from the vehicle violated the defendant's right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution. See Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 2713, 180 L.Ed.2d 610 (2011) ( Bullcoming ). The Commonwealth does not dispute that Hanchett's testimony on direct examination as to Jaszek's conclusions and the raw data generated by Jaszek violated the defendant's right of confrontation. See Commonwealth v. Barbosa, 457 Mass. 773, 786, 933 N.E.2d 93 (2010) ( Barbosa ). However, the Commonwealth maintains that, consistent with Barbosa, the confrontation clause did not prevent Hanchett from testifying as to his independent opinion on the weight and composition of the cocaine. By contrast, the defendant maintains that the United States Supreme Court's recent decision in Bullcoming precludes such testimony.

i. Validity of Barbosa in light of Bullcoming. The Sixth Amendment, applicable to the States through the Fourteenth Amendment to the United States Constitution, requires that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” ⁷ The confrontation clause “applies to ‘witnesses' against the accused —in other words, those who ‘bear testimony.’ ... ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” See Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), quoting 2 N. Webster, An American Dictionary of the English Language (1828).

In Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ( Melendez–Diaz ), the United States Supreme Court addressed whether the conclusions of forensic scientists constitute testimonial statements. The Court determined that certificates verifying the conclusions of such tests “are incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 2532, quoting Crawford v. Washington, supra. Thus, the Court held, such certificates cannot be admitted in evidence without providing defendants with an opportunity to confront the forensic scientists who author them.

Nevertheless, it was “not plain ... whether Melendez–Diaz, which involved the admission into evidence of affidavits containing testimonial hearsay, would necessarily require the government to call [an analyst] to testify [where] her report [is] not admitted into evidence,” but is instead relied on as the basis for the independent opinion of a second analyst. United States v. Pablo, 625 F.3d 1285, 1295 (10th Cir.2010).

In light of this uncertainty, our cases since Melendez–Diaz have distinguished between a substitute analyst's testimony as to independent opinions based on data generated by a nontestifying analyst, and a substitute analyst's testimony as to the testing analyst's reports and conclusions. ⁸...