Commonwealth v. Mario Perez, March 5, 2010
76 Mass. App. Ct. 439
Motion to Suppress, Search and seizure.
The defendant contended that his pretrial motion to suppress evidence was improperly denied. The defendant argued that the trial judge should have excluded packages of suspected cocaine that police seized after digging in an area of freshly disturbed dirt near the side entrance to the house (for which the police had a search warrant). The appellate court found that the trial judge properly denied the motion to suppress because the area – which was about three feet from the stairway to the side door and beneath a first-floor window – was clearly within the curtilage of the house, use limited to the occupants of the house. The court also rejected any privacy interest of the defendant in burying the drugs because the drugs were clearly placed there to avoid detention.
Required Finding; Sufficiency of the Evidence.
The defendant argued that his motion for a required finding of not guilty was improperly denied. Using the Latimore standard, the appellate court disagreed, finding sufficient evidence of constructive possession by the defendant through evidence presented of the defendant’s knowledge of the presence of the drugs and the defendant’s ability and intention to exert control over the drugs. The appellate court also found sufficient evidence of intent to distribute through evidence presented of the large amount of drugs found as well as the traditional accompanying instruments and paraphernalia of drug distribution.
Right of Confrontation; Certificate of Drug Analysis.
The defendant argued that his Sixth Amendment right of confrontation was violated by the introduction of drug analysis certificates without the testimony of the analysts (or a prior opportunity to cross-examine them). The defendant makes his argument under Melendez-Diaz, 129 S. Ct. 2527 (2009), which came down after the defendant’s trial and subsequently rendered the drug analysts’ ex parte out-of-court affidavits inadmissible. Despite the fact that the defendant did not make an objection when the certificates were introduced at trial, the appellate court found that the defendant’s convictions should be reversed. The appellate court found that under either the substantial risk of a miscarriage of justice standard or the harmless beyond a reasonable doubt standard, the defendant is entitled to relief.
The appellate court first stated that the fact that the nature of the substances was never an issue at trial is not a compelling factor of consideration because the Commonwealth is still required to prove every element of a crime. The court secondly found that without the certificates, the Commonwealth had not proved every element of the crime beyond a reasonable doubt. Even though a judge may find a substance to be a particular drug without chemical testing and analysis, the appellate court here found that there had not been sufficient evidence to make such a finding in this case – especially considering the extent to which the Commonwealth did rely upon the certificates in this case. Thus the appellate court found that without the drug analysis certificates, the Commonwealth did not sufficiently prove its case so as to avoid the conclusion of substantial risk of a miscarriage of justice; the defendant’s convictions accordingly were reversed.
