Commonwealth v. James Sullivan, June 4, 2010
Witness Confrontation, Prior Misconduct, Drug Certificate, Assistance of Counsel
Defendant appealed from convictions of two counts of unlawful distribution of cocaine. He raised four evidentiary claims: (1) testimony describing the process by which the informant was authorized to serve as such and participate in controlled drug buys constituted improper vouching; (2) testimony indicating the informant had purchased cocaine from the defendant before the dates of the indicted offenses constituted impermissible prior bad act evidence; (3) testimony indicating law enforcement personnel were assigned to a gang task force was improper as it was irrelevant and prejudicial; and (4) the admission of drug analysis certificates violated the defendant’s rights under the confrontation clause of the 6th Amendment to the US Constitution. The defendant also claimed ineffective assistance of counsel. The Appeals Court affirmed the convictions.
Vouching
Defendant claimed that testimony on the process used to obtain approval to use Smith as an informant and controlled buyer constituted impermissible vouching. Prosecutors and police witnesses can not explicitly or implicitly vouch for the truthfulness of a witness’s testimony. Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989), Commonwealth v. Chaleumphong, 434 Mass. 70, 74 (2001).
Here, none of the witnesses vouched for the truthfulness of Smith, since they never expressed a personal belief in Smith’s credibility. They simply described the informant approval process and indicated that the process used to decide whether to enlist an individual as an informant involved an extensive background check and the corroboration of information provided by that individual. While details regarding the approval process were subject to exclusion upon relevance grounds, the challenged testimony demonstrated that the verification was in order for Smith to participate in controlled buys. Additionally, admitting hearsay evidence of Smith’s past relationship with the police did not make the witness testimony improper. The hearsay rule forbids only the testimonial use of reported statements; it does not preclude the use of such statements for other purposes. To the extent that the testimony included hearsay statements, the information was relevant to the state of police knowledge which led them to use Smith as an informant and to seek out the defendant as a possible drug trafficker.
Prior bad act testimony
The defendant argued that the judge impermissibly allowed Smith to testify that before he became an informant he had purchased drugs from the defendant. The judge had given a limiting instruction contemporaneous with the testimony and included the same instruction in his final jury instructions.
The trial judge appropriately considered whether the relevance of the evidence, to establish the nature of the relationship between Smith and the defendant, outweighed the possible prejudice to the defendant. Testimony of the prior episodes was minor and did not divert jury attention from the present case. Additionally, jury instructions were sufficient, since the judge informed the jury that the evidence of prior drug transactions was not to be used by them as any indication of guilt on the instant charges, and it was only to be considered on the issue of Smith’s familiarity or knowledge of the defendant.
Gang unit assignments
Defendant argued that references to an unrelated gang investigation were error. Defendant failed to object at trial and the Appeals Court reviewed for a substantial risk of a miscarriage of justice. Here, the evidence did not associate the defendant with a gang, nor did the prosecutor suggest or intimate such an association. The references to gang-related assignments were isolated, fleeting, and unrelated to the theory and evidence against the defendant. The jury could not have inferred a gang association with the defendant, and the references had a negligible effect, if any, upon the verdicts. The Appeals Court found no error.
Drug certificates
The admission of two drug certificates without the opportunity for cross-examination of the chemical analyst was error. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). The Appeals Court held that the error was harmless beyond a reasonable doubt.
Here, the evidence of the nature of the substance, independent of the certificates, was “‘overwhelming,’ in the sense that it [was] ‘so powerful as to “nullify any effect”’ that the improperly admitted evidence ‘might have had’ on the fact finder or the findings.” Commonwealth v. Vasquez, 465 Mass. 350, 362 (2010). Commonwealth witnesses testified without objection that the substances appeared to be cocaine. One witness identified the substances based on a long history of personal cocaine use. Another witness had extensive professional training and experience in narcotics identification. Additionally, field tests were performed on the substances purchased from the defendant after each controlled buy. Geiger testified, without objection, that the substances tested positive for cocaine. Moreover, the theory of defense was that Smith “set up” the defendant, and thus relied on the premise that the substances were cocaine. The Appeals Court held that the totality of evidence was such that the instant error was harmless beyond a reasonable doubt.
Ineffective assistance of counsel
The Appeals Court held that the defendant did not receive ineffective assistance of counsel. The defendant’s contentions (excepting the drug certificates admission) did not constitute error and thus cannot form the basis of an ineffective assistance of counsel claim. The defendant received the benefit of an analysis as if the drug certificates admission error was preserved by an objection by counsel, and thus there was no basis on which to conclude counsel’s assistance as ineffective on that issue.
- Prepared by AYK
