Commonwealth v. Hanson
Massachusetts Appeals Court
April 8, 2011.
79 Mass. App. Ct. 233
Double Jeopardy, Assistance of counsel, Sufficiency of the Evidence
The jury found the defendant guilty of possession of crack cocaine with intent to distribute, distribution of crack cocaine, and distribution within a school zone. On appeal, the Commonwealth conceded that it was an error to admit the drug certificates into evidence against the defendant. The Commonwealth agreed that the Appeals Court should reverse the defendant’s convictions. However, the defendant argued that there was insufficient evidence at trial to find him guilty and double jeopardy should bar a retrial of the defendant. The defendant also argued that his trial counsel was ineffective in that he failed to file a motion to suppress the crack cocaine that the officer found before the defendant’s arrest. The Appeals Court disagreed with the defendant and found that the Commonwealth could retry the defendant with the evidence presented at trial.
Facts
On September 1, 2007, an officer was engaged in surveillance of a multifamily home. The officer observed the defendant engage in three hand-to-hand drug sales within a span of forty-five minutes. After the third transaction, the officer observed the defendant leave the second floor apartment and walk down the rear stairs to the corner of the home, carrying a large plastic bag containing a white, rock-like substance. The defendant pulled up a piece of the vinyl siding and placed the plastic bag behind the siding. The defendant left the home and walked up the street. The officer noted that the siding did not cover the bag completely and a portion of the bag was visible when the officer walked over to the corner of the home; the officer discovered forty-seven individually wrapped packets of the white substance. The defendant was later arrested.
At trial, the officer who had engaged in the surveillance testified about the defendant’s actions. A detective also testified as an expert about the common practices of drug transactions, including the packaging of crack cocaine, the modes of sale, and the prices for crack cocaine. Drug certificates were also admitted into evidence at trial. The jury found the defendant guilty of possession of crack cocaine with intent to distribute, distribution of crack cocaine, and distribution within a school zone.
The Commonwealth conceded that there was an error in allowing the certificates to be admitted into evidence and the error was not harmless beyond a reasonable doubt per Melendez-Diaz v. Massachusetts. 129 S.Ct. 2527 (2009). Therefore, the Commonwealth also conceded that the Appeals Court should reverse the defendant’s convictions.
The Sufficiency of the Evidence and Double Jeopardy
The defendant argued that there was not a sufficient amount of evidence presented at his trial for the convictions; therefore, the Appeals Court should find that double jeopardy barred a retrial of the defendant.
Applying the principles established in Commonwealth v. Latimore, the Appeals Court concluded that when reviewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to convict the defendant. 378 Mass. 671 (1979). Consequently, double jeopardy did not apply and the defendant could be re-tried.
In considering the evidence, the Appeals Court considered the improperly admitted evidence – the drug certificates – as well as properly admitted evidence. In addition to the drug certificates, the Court concluded that the other evidence presented was sufficient to conclude the defendant was engaged in the possession and distribution of crack cocaine. The testimony of the officer who was engaged in the surveillance and the testimony of the detective about the modes and methods of drug transactions contributed to the Court’s conclusion. Furthermore, the Court acknowledged that chemical analysis was not the only way the Commonwealth could establish that the substance was crack cocaine; circumstantial evidence can also be used to establish what a substance is. Therefore, a new trial would allow the Commonwealth to correct the Melendez-Diaz error, while still presenting a sufficient amount of evidence for a guilty conviction.
Ineffective Assistance of Counsel
The defendant also argued that his trial counsel was ineffective because he failed to file a motion to suppress the crack cocaine that was found behind the siding of the house. To be successful in his argument, the defendant had to show that the motion to suppress would have been successful. Here, based on the trial record, the Court found that the defendant could not prove the motion would have been successful since the trial counsel could not prove that the defendant had a reasonable expectation of privacy in the area behind the siding of the home.
The Court also noted that this was a new exception to the rule that defendants should present ineffective assistance claims in a motion for a new trial. In a proceeding for a motion for a new trial, affidavits are filed and an evidentiary record is developed through an evidentiary hearing; the affidavits and the evidentiary record are the basis for the decision. Here, there is an exception because the Court could make a decision based on the trial record, which showed that it would have futile for the defendant’s counsel to file a motion to suppress.
- Prepared by JM
