Massachusetts Appeals Court
March 25, 2011
Docket No. 07-P-1370
Controlled Substances. Practice, Criminal, Stipulation, Harmless error, Assistance of counsel. Evidence, Certificate of drug analysis. Constitutional Law, Harmless error, Assistance of counsel. Error, Harmless. Search and Seizure, Consent.
After a bench trial in Superior Court, the defendant was convicted of trafficking in over twenty-eight grams of oxycodone in July 2003. G.L. c. 94C, § 32E(c) (2). The defendant directly appealed and appealed the denial of his motion for new trial. The defendant argued that, notwithstanding his stipulation to the composition of the drugs, the admission of the certificate of drug analysis (drug certificate) was constitutional error, the evidence was insufficient to convict him, the motion judge erred in denying his motion to suppress, and his trial counsel was ineffective. The Superior Court affirmed.
Facts
The facts, taken from the trial evidence, are viewed in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Federal customs agents notified a U.S. postal inspector that an Everett post office box contained a package of 500 oxycodone pills from Brazil. The postal inspector, who testified at trial, removed between one-half and one-third of the pills and resealed the package. Soon after, the defendant picked up the package containing the remaining oxycodone and was arrested. During his arrest, the defendant stated that he was not an oxycodone user and offered to give information regarding a drug supplier in Florida. Police searched the defendant's home, with the consent of the defendant's cohabitating girlfriend. During the search, police found several incriminatory e-mails and documents consistent with the defendant being an oxycodone distributor.
At trial, when defendant testified, he admitted that he placed the order for the oxycodone, and acknowledged that he had gone to the Everett post office box to retrieve a package he expected to contain 500 Oxycontin, 40 mg. pills. He testified he had no intention to sell the pills. Rather, he was an addict and the oxycodone was for his personal.
In anticipation of the bench trial, the Commonwealth drafted a statement of the evidence that it expected to present. The statement included the sentence: "The person who signed for and took possession of the box that contained the [o]xycodone was the defendant."
In reviewing the statement of the evidence, and before the trial began, the Superior Court judge instructed the parties to “strike out everything that's not be[ing] conceded.” Then, the defendant, defense counsel and the prosecuting attorney would sign it. The judge questioned whether the defendant understood that, after the statement was signed into evidence, those facts would be “cast in concrete” and the defense could not argue they were wrong. The defendant responded that he understood.
The defendant, defense counsel, and the prosecutor signed the reviewed statement of the evidence, which identified the substance as oxycodone and acknowledged that the defendant had possession of the box with the oxycodone in it. The Commonwealth then admitted the following items into evidence without objection: the signed statement of facts, the oxycodone, the drug certificate identifying the substance as oxycodone, and the package in which the oxycodone was shipped.
On appeal, the defendant argued; (1) what he signed should not be considered a stipulation because the trial judge did not conduct a full colloquy; (2) in the interest of justice the signed statement of evidence should not be treated as a stipulation; and (3) the conviction must be reversed because of constitutional error in the admission of the drug certificate.
Defendant argued that the signed statement of evidence was not a stipulation because the judge did not conduct a full colloquy. The argument ignored the trial judge’s detailed explanation, the questions of the defendant, and the judge's explicit notice that, upon the defendant's signing, the facts in the statement of evidence would be conceded as facts during trial, not subject to challenge. The signed statement was a stipulation that the substance was oxycodone and the defendant possessed the oxycodone.
Defendant argued that it was an injustice to sustain the conviction upon the stipulated facts. He cited Commonwealth v. Brown, 55 Mass.App.Ct. 440, 448-449 (2002), where the court reversed a trial conviction on stipulated facts because there was no guilty plea colloquy, and the stipulated facts were sufficient to find the defendant guilty. The court found this case to be unlike Brown. This case involved a limited stipulation that did not include all the necessary elements for conviction. The defendant stipulated only that the controlled substance was oxycodone and that he possessed the oxycodone. During trial, the defendant challenged the Commonwealth's case and the charge of trafficking.
Defendant asserted that the admission of the drug certificate was a constitutional error in violation of his confrontation rights under Melendez-Diaz. The court looked at the “totality” of admitted evidence, and concluded the admission of the drug certificate was harmless beyond a reasonable double. Commonwealth v. Vasquez, 456 Mass. 350, 352 (2010). Given the defendant's stipulation and trial testimony that he possessed oxycodone, the introduction was cumulative of properly admitted evidence that satisfied that essential element of the charge. Furthermore, the identity of the controlled substance was not argued at trial. Rather, the Commonwealth argued the defendant possessed the oxycodone with intent to distribute while the defense argued the oxycodone was for personal use.
Sufficiency of the evidence. The defendant asserted that, since the postal inspector had removed some of the pills, there was insufficient evidence as to the weight of the oxycodone, when the defendant took possession of the package. The court found that this inconsistency did not affect the sufficiency of the evidence. Whether one-half or two-thirds of the pills remained in the package when the defendant took possession, the remaining pills would have weighed above the twenty-eight gram requirement for the trafficking offense.
The court did not find merit in defendant's argument that there was insufficient evidence to prove possession with intent to distribute. Defendant’s testimony that he was an oxycodone addict was inconsistent with his statement at the time of his arrest. Also, an expert witness for the Commonwealth testified that the quantity of pills was inconsistent with personal use and was evidence that the defendant possessed the drugs with intent to distribute.
The motion to suppress. The defendant contended that the police search exceeded the scope of the consent given by the defendant's girlfriend. The motion judge denied the motion to suppress. The court found the findings of the motion judge were not clearly erroneous, and the seized evidence fell within the scope of the search. See Commonwealth v. Hinds, 437 Mass. 54, 60-62 (2002), cert. denied, 537 U.S. 1205 (2003).
4. Ineffective assistance of counsel. The defendant argued that trial counsel's assistance was ineffective and the failure to obtain an expert witness deprived defendant of a defense. Cases the defendant cited were not on point. They discussed the failure to obtain expert testimony regarding either a defense not pursued at trial, or substantial exculpatory evidence. Here, the defendant’s expert’s testimony would have done neither.
The concurring opinion said the stipulation alone made the otherwise-unconstitutional admission of the certificate of drug analysis harmless beyond a reasonable doubt. The defendant’s sworn testimony would not form the basis for the admission of the drug certificate. Commonwealth v. Mendes, 78 Mass.App.Ct. 474, 480-481 (2010), citing Commonwealth v. Charles, supra at 383, and Commonwealth v. Fluellen, 456 Mass. 517, 526-527 (2010).
Judgment affirmed.
Prepared by DFK
