CPCS Criminal Defense Training Unit Case Summaries

Week of October 12, 2009

Lee Fortier wrote these summaries.

Commonwealth v. Shelby Mendes , 2009 LEXIS Mass. App. Ct. (October 13th, 2009)Docket No. 08 – P -1349

Keywords: Firearms. Evidence, Firearm, Inference, Prior misconduct, Cross examination. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses.

The defendant was convicted of several firearms charges. At trial, in order to prove that the firearm in question was capable of discharging a shot (an element that the Commonwealth must prove in firearms charges) the Commonwealth introduced a certificate from a ballistician certifying that the weapon in question was indeed capable of discharging a shot at the time at the time the defendant possessed it. The defendant did not object to the certificate being admitted into evidence.

On appeal the defendant argued that the admission of the ballistics certificate violated his right to cross examine the testing ballistician and thereby his right of confrontation under the Sixth Amendment to the United States Constitution announced in Crawford v.Washington , 541 U.S. 36 (2004), and under art. 12 of the Declaration of Rights of the Massachusetts Constitution.

In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the United States Supreme Court concluded that the admission of laboratory certificates of drug quality and quantity without the availability of responsible analysts for cross examination violated a defendant’s Sixth Amendment right to confrontation. The United States Supreme Court vacated the judgment of the Appeals Court in Commonwealth v. Morales , 71 Mass. App. Ct. 587, 588-589 (2008), a case involving the admission of a ballistics certificate , and remanded the case to the Appeals Court in light of the Melendez-Diaz decision. See Morales v. Massachusetts, 129 S. Ct. 2858 (2009).

The Appeals Court affirmed the defendant’s convictions in this case , holding that the strength of the independent evidence of the operability of the handgun showed beyond a reasonable doubt the harmlessness of the admission of the certificate. That independent evidence included testimony of three audible shots, three empty shell casings, and the smell of gunpowder about the defendant’s person shortly after the shots were fired. That information “amply” supported the working condition of the weapon.

Practice Tip : When faced with an offer of a ballistics certificate to prove the operability of a weapon, point out to the court that it is error to admit a ballistics certificate over the objection of the defendant because it violates the right to confrontation. Consider moving for a required finding of not guilty on the ground that the independent evidence of the operability of the firearm is insufficient to send the case to the jury.

Commonwealth v. John Odgren , 2009 LEXIS Mass. App. Ct. (October 15th, 2009)

Docket No. SJC – 10369

Keywords : Subpoena. Practice , Criminal, Subpoena duces tecum , Standing , Motion to suppress. Evidence , Sound recording, Telephone conversation.

The SJC held in this case that the Commonwealth must follow Mass. R. Crim P. 17 and Commonwealth v. Lampron , 441 Mass. 265 (2004) for pre-trial production of all records by subpoena. (Under Lampron, the use of a Rule 17 subpoena before trial must be done with court approval and a showing of relevance, admissibility, necessity, and specificity).

This case involved the Commonwealth issuing a subpoena for pre-trial production of recordings of the defendant’s jail telephone calls.

Note : It seems that the Commonwealth can obtain jail call recordings ( or anything else for that matter) informally – i.e. , obtaining them directly from the custodian thereof by simply requesting them.

What remedy? That remains to be seen. The defendant’s motion to suppress the jail call recordings was allowed in the trial court, and the Commonwealth took this interlocutory appeal. The SJC remanded the case for the motion judge to determine whether the improper subpoena resulted in any violation of the defendant’s constitutional rights.

Practice Tip : In any case where you discover that the Commonwealth has improperly issued a subpoena for pre-trial production of records , file a motion to suppress the evidence so obtained on the ground that the improper subpoena resulted in a violation of the defendant’s statutory and/or constitutional rights. If the improper subpoena sought records of someone other than the defendant, consider moving in limine to exclude them as a sanction for abuse of process.

Commonwealth v. Steele , 2009 LEXIS SJC (October 16th , 2009)

Docket No. : SJC – 10335

Keywords : Evidence, Intoxication, Blood alcohol test, Breathalyzer test. Intoxication. Administrative Law, Regulations. Regulation.

The defendant, arrested for OUI, consented to a breathalyzer test. The results showed that the defendant had a .09 blood alcohol content at 4:14 A.M.; a calibration standard analysis at 4:15 was .15 per cent; and the defendant had a .10 blood alcohol content at 4:18. In a written decision on a motion in limine filed by the Commonwealth, a District Court judge concluded that the Commonwealth could only introduce evidence of the lower of the two breath sample results.

The SJC agreed with the District Court judge and remanded the case for entry of a judgment affirming his decision, holding that 501 Code Mass. Regs. Section 2.57 (2006) provides that if the two breath samples differ within +/0.02 blood alcohol content units, the lower of the two breath samples shall be taken as the individual under arrest’s blood alcohol level.

Commonwealth v. Vasquez , 2009 LEXIS Mass. App. Ct. (October 16th , 2009)

Docket No. : 08 – P- 253

Keywords: Controlled Substances. Joint Enterprise. Identification. Due Process of Law, Identification. Constitutional Law, Confrontation of witnesses, Harmless error. Practice, Criminal, Confrontation of witnesses, Harmless error. Evidence, Joint enterprise, Constructive possession, Identification, Certificate of drug analysis. Error, Harmless. Words, “Clairvoyance exception.”

Convicted of drug crimes , the defendant first appealed on the ground that the evidence that the Commonwealth presented to prove that the defendant distributed cocaine as a joint venturer was insufficient, as was the evidence presented to prove that the defendant constructively possessed cocaine found during a search of his apartment. The evidence was that an undercover state trooper had visited the defendant’s apartment and told him that he wanted to purchase an eight-ball of crack cocaine. The defendant explained that he only had “16’s” so he went downstairs and returned with an individual named “Munchy”. The defendant told “Munchy” to “sell to him” and “Munchy” responded by selling an eight-ball of crack cocaine to the undercover officer. The court found that at a minimum, evidence showing that the defendant acted as an intermediary to a drug transaction is sufficient to prove guilt on a distribution charge.

As to constructive possession, the court noted that when the police executed the search warrant, the defendant was present in the apartment along with four other men. The front door had been fortified by a two-by-four. One man jumped through a window and was captured later by police. The defendant was in the living room with another man. The two other men were, respectively, in the bathroom and in the shower stall of that bathroom. $493 in cash was on the defendant’s person. In a kitchen cabinet, police found a plastic bag containing cocaine, along with a package of sandwich bags, a pair of scissors, and a scale. When the officers found the men in the bathroom, the one closest to the toilet attempted to elude capture. $274 was recovered from inside the running toilet. The court held that the defendant’s presence and the previously listed factors were sufficient to establish constructive possession.

Next, the defendant contended that the process by which the undercover officer identified the defendant via one photograph was unnecessarily suggestive, and therefore the photograph was improperly admitted. Reviewing the case under a substantial risk of a miscarriage of justice standard (because the defendant hadn’t moved to suppress the identification at trial), the court found that while the procedure may not have been favored, it was permissible, and there was no further evidence supporting the conclusion that the identification was prejudiced.

Practice Tip : If the defendant had preserved the issue by filing a motion to suppress the identification, the court would have reviewed the case under a harmless error analysis, thereby increasing the chances that the court would have found reversible error in the identification procedure used here. Just because the identification witness is a police officer does not mean that the ID can’t be tainted by a suggestive procedure. Be sure to preserve any viable challenges to an identification procedure by moving to suppress the out of court AND in court identification pre-trial.

As a final matter, the defendant sought relief on the ground that four drug certificates were admitted as evidence without any testimony from an analyst. The certificates were admitted without objection by the defendant. Reviewing the case on a “substantial risk of a miscarriage of justice” standard, (because the error was not preserved by a timely objection at trial), the court determined that such a risk was not presented. The evidence that was sufficient to prove constructive possession, discussed earlier, along with testimony by officers who searched the apartment, was sufficient circumstantial evidence to prove that the substance possessed was cocaine.

The Appeals Court concluded that the efficient administration of justice will be served by reporting the third issue of this opinion, “3. Issues involving the drug certificates,” which is joined by a majority of the justices, together with the dissenting opinion, which is joined by other justices, to the Supreme Judicial Court. G.L. c. 211A/12.

Stay tuned.

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