Commonwealth v. Ronald Mendes (and Six Companion Cases 1).

• Decision Date: 02 March 2011
• Docket Number: No. 08–P–1942.,08–P–1942.
• Citation: 78 Mass.App.Ct. 474,940 N.E.2d 467
• Parties: COMMONWEALTHv.Ronald MENDES (and six companion cases 1).
• Court: Appeals Court of Massachusetts

78 Mass.App.Ct. 474

940 N.E.2d 467

COMMONWEALTH

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

No. 08–P–1942.

Appeals Court of Massachusetts, Middlesex.

Argued Feb. 1, 2010.Decided Dec. 28, 2010.Review Granted March 2, 2011.

Valerie A. DePalma for Ronald Mendes.Pamela Symmes Segre, Cambridge, for Raymond B. Mendes.William G. Allensworth, Assistant District Attorney, for the Commonwealth.Present: BERRY, COHEN, & KATZMANN, JJ.COHEN, J.

In March, 2008, after a jury trial in the District Court, the defendants, brothers Ronald Mendes and Raymond Mendes,² were convicted of several violations of the controlled substances laws.³ On appeal, they claim that the admission of certificates of drug analysis to prove the charges against them was constitutional error that was not harmless beyond a reasonable doubt. They also claim that their motions to suppress evidence found during the execution of a search warrant at their apartment should have been allowed; that expert testimony from a police witness exceeded permissible bounds; and that testimony concerning telephone calls placed to their cellular telephones and heard by police should not have been admitted.

While none of the other issues has merit, we conclude that the admission of certificates of drug analysis in violation of the defendants' rights of confrontation requires that their convictions be reversed.⁴ Based upon our understanding of the relevant cases, we reach this conclusion even though both defendants testified at trial and, during that testimony, made admissions consistent with their defense that they were drug users, but not drug dealers. In this respect, we differ from our dissenting colleague.

1. Background. a. The Commonwealth's case. The Commonwealth adduced evidence that, on October 21, 2006, Detective James Hyde of the Somerville police department, along with several other police officers, executed a search warrant at the defendants' second-floor apartment at 98 Albion Street, a three-unit residential building located in Somerville, across the street from a public playground. When the police entered the apartment, Raymond was found near the rear bedroom of the apartment, and his brother Ronald was found in a different bedroom with his girlfriend.

The police presented the search warrant and advised both Raymond and Ronald of their Miranda rights. The defendants initially denied that any drugs were in the apartment, but Raymond later admitted that there were “some trees”—street slang for marijuana—in his bedroom.

Detective Hyde oversaw the search of the apartment. At trial, he and Detective Dominic Pefine, another member of the search team, testified as to the results. In Raymond's bedroom, police found a clear plastic bag containing .46 grams of what was assumed to be cocaine and two pills that were identified as ecstasy, in a vase on top of the dresser; $740 in currency inside the dresser; and a black box under the bed that contained a bag of what was assumed to be marijuana, as well as $420 in currency, a 100–gram weight of a type used with a triple-beam scale, and a cellular telephone. In Ronald's bedroom, police found a plastic bag containing 1.46 grams of what was assumed to be cocaine on the bureau; twelve bags of what was assumed to be marijuana in the pocket of a shirt in the closet; $943 in currency in the closet; $158 in currency on top of a television set; and a cellular telephone. In the living room, police found a brown leather jacket containing two bags of what was assumed to be marijuana; various papers belonging to the defendants; a plastic baggie with the corner ripped off; three cellular telephones; and two notebooks containing lists of names and dollar amounts.

Detective Hyde stated that he was familiar from his training and experience with both cocaine and marijuana and how these substances are ingested. Detective Pefine also testified that he was familiar with marijuana. Both officers described the general physical appearance of marijuana as a green leafy herbal substance. Through the testimony of Detective Hyde, the drugs seized were identified and admitted in evidence along with seven corresponding certificates of drug analysis prepared by the State laboratory.

While the search warrant was being executed, Detective Hyde monitored incoming telephone activity on the defendants' cellular telephones. Approximately ten to twelve calls came in during this period. According to Detective Hyde, all of the callers alluded to purchasing drugs, several calls were very brief, and most callers did not identify themselves.

Detective Hyde described two calls in detail. One was from an individual who identified himself as Ed and asked to purchase $100 worth of cocaine. Detective Hyde informed him that he could fill the order and directed Ed to the intersection of Albion and Lowell Streets. When Ed reached that location, he placed a second telephone call to Detective Hyde, who sent a marked cruiser over. As the cruiser approached, Ed called again, saying that he should not be met at that intersection because the police were there.

The second call was from a woman who also sought to buy drugs. She asked for Ray or Ron and then asked to purchase cocaine for herself and marijuana for her niece. Detective Hyde said that he could satisfy her request and directed her to a nearby liquor store. Again, he sent a marked cruiser to the designated location. The woman later called and indicated that she had been stopped by the police, but still wanted to purchase drugs.

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 and packaged for sale. He stated that he “believe[d]” one substance in evidence was “about half a gram” of cocaine and that another substance “appear[ed] to be 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 brothers were drug users, but not drug dealers, and that any drugs found in their apartment were for their own use. Ronald introduced the testimony of a friend who stated, among other things, that he would smoke marijuana with Ronald. Raymond introduced the expert testimony of Dr. Alan Wartenberg, a physician who specializes in the treatment of addiction and who described the consumption and purchasing habits of heavy drug users. In addition, each defendant testified on his own behalf.

Raymond testified that the records found by the police were for the purpose of keeping track of money that the defendants' friends had donated to help them buy music studio time for Raymond's son, an aspiring musician. He also offered benign explanations for the presence of the significant amounts of cash found in the apartment. As for his drug use, Raymond said that he would purchase an ounce of marijuana each week and that he would roll the marijuana into a “blunt” cigar, sprinkle cocaine on top, and smoke it. He stated that he kept “the drugs” in the places where Detective Hyde said he found them in order to hide them from Ronald's children, who would come to visit. He also explained that he took ecstasy pills as a sex drug when “a lady friend” came to visit.

Ronald testified that he smoked marijuana every day, three to four times per day, and that he also used cocaine approximately three times per week. Like Raymond, he offered innocent explanations for the presence of cash in the apartment. He admitted that the bags of marijuana found in the pocket of the shirt in his closet and in the jacket in the living room were his, explaining that he had purchased marijuana for his personal use from a dealer who only sold it in “dime bags,” rather than in larger quantities. He also acknowledged that the cocaine found in his room was his.

2. Certificates of drug analysis. The Commonwealth had the burden to prove beyond a reasonable doubt that the substances seized from the defendants' apartment actually were marijuana, cocaine, and ecstasy. Commonwealth v. Vasquez, 456 Mass. 350, 361, 923 N.E.2d 524 (2010). As held by the United States Supreme Court in Melendez–Diaz v. Massachusetts, ––– U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the admission of the certificates of drug analysis to meet the Commonwealth's burden, without affording the defendants the opportunity to cross-examine the chemical analyst who prepared them, violated the defendants' rights under the confrontation clause of the Sixth Amendment to the United States Constitution. Although the defendants did not object, on confrontation grounds, to the admission of the certificates at trial, because their case was tried after the Supreme Judicial Court's decision in Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005), and before the issuance of Melendez–Diaz, they are entitled to have this constitutional error reviewed under the “harmless beyond a reasonable doubt” standard. Vasquez, supra, at 356–360, 923 N.E.2d 524.

“[T]o establish harmlessness beyond a reasonable doubt, the Commonwealth must show that other properly admitted evidence of guilt is ‘overwhelming,’ in the sense that it is ‘so powerful as to “nullify any effect” ’ that the improperly admitted evidence ‘might have had’ on the fact finder or the findings.” Id. at 362, 923 N.E.2d 524, quoting from Commonwealth v. Tyree, 455 Mass. 676, 704 n. 44, 919 N.E.2d 660 (2010). “We pay particular attention to whether the Commonwealth's case ‘radiates from a core of tainted evidence.’ ” Commonwealth v. Fluellen, 456 Mass. 517, 526, 924 N.E.2d 713 (2010), quoting Tyree, supra at 702, 919 N.E.2d 660. “[W]here the improperly admitted evidence directly implicates the Commonwealth's proof of an element of the crime, our inquiry must...