Commonwealth v. Kevin Jones, June 18, 2010
New Trial, Assistance of Counsel, Witness Confrontation, Motor Vehicle, Drug Certificate, Ballistician’s Certificate, Firearms
The defendant was convicted of (1) carrying a firearm without a license; (2) assault and battery; and (3) possession of a class B substance (cocaine). The defendant’s direct appeal, appeal from the denial of his motion for a new trial, and appeal from the denial of his motion for reconsideration were consolidated.
On appeal, the defendant claimed that (1) the judge committed reversible error in denying his motion for a new trial and his motion for reconsideration; (2) the evidence was insufficient to sustain his convictions of battery and possession of a firearm; and (3) his right of confrontation was violated by the introduction of ballistics and drug certificates without the supporting testimony of the individuals who performed the tests.
The Appeals Court held in favor of the defendant in his contention regarding the admission of ballistics and drug certificates. The Appeals Court reversed the judgments on the counts of the complaint charging carrying a firearm and possession of cocaine. The remaining judgment and the order denying the motion for a new trial were affirmed.
Facts
While on patrol, two officers saw two people in the middle of the road. The female was lying on her back with her legs up in the air and her arm out in front of her in a defensive position. The defendant was standing over her. Another male was walking away from the scene. The woman, later identified as the defendant’s girlfriend, ran to the officers crying for help. Two vehicles were parked at the scene on opposite sides of the street. The defendant initially walked toward a gray Ventura with all of its doors open before walking across the road and behind the blue Ventura. The defendant told officers that the “bitch” was cheating on him with the man walking away from the scene. The girlfriend screamed “those guys were trying [to] rape me.” The defendant responded, “yeah, she was being raped by the guy walking away, aren’t you going to do anything?”
One officer did a cursory check of the area, leaned into the open doors of the gray Ventura, and noticed a gun cocked and loaded on the floor board between the two seats. The defendant foreswore knowledge of the vehicle’s ownership and claimed it belonged to the men trying to rape his girlfriend. After observing the defendant throw something behind him, an officer found the gray Ventura’s keys on the ground. Officers also discovered crack cocaine near the blue Ventura and on the defendant’s person.
Denial of defendant’s motion for new trial and for evidentiary hearin
In his motion for a new trial, the defendant claimed that his trial counsel was ineffective for his failure (a) to file a motion to suppress the firearm; (b) to file a motion to dismiss the assault and battery and firearm complaints; (c) to locate a witness and, (d) to obtain a knowing and intelligent waiver of the defendant’s right to compulsory process.
Omission of suppression motion
The defendant claimed trial counsel should have filed a motion to suppress the firearm. The officer did not have a warrant to search the vehicle and defendant claimed exigent circumstances were not present. The Appeals Court noted (1) the police had come upon an apparent violent crime; (2) the woman was yelling that she had been raped by another individual who might still be in the area; (3) the nearby gray Ventura had all of its doors open; and (4) the defendant was observed walking toward that vehicle. Under these circumstances, a protective sweep of the gray Ventura for other persons or weapons was warranted. The intrusion was limited and the removal of the firearm was proper. Since there was no likelihood that a motion to suppress the weapon would have been successful, a claim of ineffectiveness for not filing a suppression motion was without merit.
Omission of dismissal motion
The defendant claimed that the arrest report failed to establish probable cause regarding each element of the offenses of assault and battery and carrying a firearm. The Appeals Court held that the police report, the basis for the complaints, contained sufficient evidence to establish probable cause and trial counsel was therefore not ineffective in not filing a motion to dismiss.
Failure to locate and summon witness
Defendant claimed trial counsel was ineffective because he failed to locate and summon Aponte, the owner of the gray Ventura, to be a witness at his trial. The defendant failed to file an affidavit from Aponte indicating that he would testify in a manner helpful to the defendant. The Appeals Court found it extremely doubtful that Aponte would have contradicted other witness testimony or claimed that the loaded firearm belonged to him. Therefore, the failure to locate and summon Aponte as a defense witness was not manifestly unreasonable.
Failure to hold evidentiary hearing
The Appeals Court deferred to the motion judge’s decision not to hold an evidentiary hearing, especially since the defendant’s motion and the accompanying affidavits did not raise a substantial issue by casting doubt on the trial counsel’s performance.
Admission of ballistics and drug certificates
The Appeals Court cited Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) and found the admission of the certificates without supporting testimony was erroneous. The Appeals Court applied the harmless error analysis.
The Appeals Court found the admission of the certificate likely impacted the jury verdict, and vacated the defendant’s conviction of possession of cocaine. Witnesses failed to establish any expertise that would permit an identification of the substance at the scene, no field tests were performed, and no officer observed the effects of the substances.
The Appeals Court similarly vacated the defendant’s conviction of possession of a firearm. While the Commonwealth only needed to present some competent evidence from which the jury reasonably could draw inferences that the weapon will fire, there was no evidence that the pistol’s firing mechanism was operable other than the certificate that was admitted in evidence.
- Prepared by AYK
