Commonwealth v. Verde

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: IRELAND, J.
• Citation: 827 NE 2d 701,444 Mass. 279
• Decision Date: 19 May 2005
• Parties: COMMONWEALTH v. ALBERTO VERDE.

444 Mass. 279
827 NE 2d 701

COMMONWEALTH
v.
ALBERTO VERDE

Supreme Judicial Court of Massachusetts, Worcester.

March 8, 2005.

May 19, 2005.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Pamela Lindmark for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

John P. Zanini, Donald LaRoche, Robert C. Thompson, & Mary Lee, Assistant District Attorneys, for the District Attorney for the Suffolk District & others.

Thomas F. Reilly, Attorney General, & Susanne G. Reardon, Assistant Attorney General, for the Attorney General & another.

444 Mass. 280

IRELAND, J

This appeal raises the question whether, in light of Crawford v. Washington, 541 U.S. 36 (2004) (Crawford), the confrontation clause of the Sixth Amendment to the United States Constitution requires that laboratory technicians who analyze drugs seized as part of a criminal investigation authenticate their laboratory findings by appearing at a defendant's trial. Because we conclude that a drug certificate is akin to a business record and the confrontation clause is not implicated by this type of evidence, we answer in the negative and affirm the conviction.

After a Superior Court jury convicted the defendant of trafficking in cocaine (in an amount over one hundred but less than 200 grams), the trial judge sentenced the defendant to from ten to twelve years. The defendant appealed, claiming a number of errors, and we transferred this case from the Appeals Court on our own motion.

Facts and procedural background.

We recount the relevant facts, reserving certain details for our discussion. On July 25, 1997, the Worcester police executed a search warrant at the defendant's residence. After receiving the Miranda warnings, the defendant told police he had one-half ounce of cocaine in his pocket, which the police confiscated. In a bureau in the defendant's bedroom, the police found items commonly used in the drug trade, including a "cutting agent," a brown paper bag with "chunks" of "crack" cocaine and "regular" cocaine, a scale, packaging material, and plastic baggies. The police also found $15,615 in cash and a bankbook. These items were photographed before being removed from the bureau drawer. The white powder substances found in the bureau and in the defendant's pocket were analyzed at the University of Massachusetts Medical School laboratory. One substance was determined to be 90.96 grams of cocaine and the substance from the defendant's pocket was determined to be 13.77 grams of cocaine. The analysis of another substance removed from the bureau drawer indicated that it did not contain drugs.

At trial, pursuant to G. L. c. 111, § 113,¹ the Commonwealth introduced two certificates of analysis from the University of Massachusetts Medical School laboratory showing the weight

444 Mass. 281

of the cocaine. The defendant, in turn, submitted the certificate of analysis of the other substance, indicating that it was not a narcotic but rather lidocaine (the dilutant). Although admitting that he had one-half ounce of cocaine on his person, the defendant testified that he only had twenty-eight grams in his bureau. His defense was that the police mixed lidocaine with the cocaine in the bureau into "a big ball" to arrive at the total amount of 90.96 grams

The defendant's expert went to the University of Massachusetts Medical School laboratory on the first day of the trial to weigh the drugs himself. The expert testified that the first scale he used was not functioning properly, but that he was able to get an accurate reading from a second scale. The total weight of the cocaine, when weighed by the defendant's expert, was 102 grams. He testified that the difference in the amount from the 104.73 grams determined by the chemist was likely due to the evaporation of a "volatile material" mixed with the cocaine. Although the defendant's expert agreed that the total weight was more than one hundred grams, he testified that he thought the concentration of cocaine stated on the certificate of analysis was misleading. However, he further testified that he could not determine how inaccurate it might be because he "didn't have enough time to really study all the data" and a piece of data was missing regarding how the analyst made the standard concentrations for quantifying the cocaine in the sample.

The laboratory manager at the University of Massachusetts

444 Mass. 282

Medical School, a rebuttal witness for the prosecution, testified that the chemist who analyzed the drugs was unavailable to testify because she was on maternity leave. He further testified that he personally examined the test results as to the purity and weight of drugs and he agreed with the results reported on the certificates

Discussion.

1. Confrontation clause. The defendant argues that the admission of the drug certificates of analysis denied him his constitutional right to confrontation because the chemist who analyzed the substances and prepared the certificates did not testify.² This issue was presented first to this court in Commonwealth v. Slavski, 245 Mass. 405 (1923), and again nearly fifty years later in Commonwealth v. Harvard, 356 Mass. 452 (1969). In both cases, this court held that because the records relating to the analysis of intoxicating liquor or drugs were merely records of primary fact, with no judgment or discretion on the part of the analysts, and were admitted only as prima facie evidence, their admission did not violate a defendant's right to confrontation. See Commonwealth v. Harvard, supra at 461-463; Commonwealth v. Slavski, supra at 417-418. The defendant, however, argues that these cases no longer apply because of the United States Supreme Court's recent decision in Crawford, supra at 61, 68, holding that "testimonial" hearsay statements are barred under the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether the statements are deemed reliable by the court. We disagree with the defendant's proposed application of Crawford to evidence of this nature.

Although the Court left "for another day any effort to spell out a comprehensive definition of `testimonial,'" it provided that the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial;

444 Mass. 283

and to police interrogations." Id. at 68. The Court noted that "[t]hese are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id. However, the Court also recognized that "[t]here were always exceptions to the general rule of exclusion" of hearsay evidence and that several were well established when the confrontation clause was enacted. Id. at 56. Specifically, the Court suggested in dictum that a business or official record would not be subject to its holding as this exception was well established in 1791. Id.³

One acknowledged exception to the confrontation clause is a public record, "an ancient principle of the common law, recognized at the time of the adoption of the Constitution." Commonwealth v. Slavski, supra at 415, citing J. Wigmore, Evidence §§ 1395-1398 (1923). See Commonwealth v. Bergstrom, 402 Mass. 534, 545 (1988) (noting public records and dying declarations as acknowledged exceptions to confrontation requirements when Massachusetts Constitution was adopted). In addition, it is well established in Massachusetts that "a record of a primary fact made by a public officer in the performance of official duty is or may be made by legislation competent...