Commonwealth v. Marte (Lawyers Weekly No. 11-100-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 09‑P‑776 Appeals Court COMMONWEALTH vs. ADOLFO MARTE. No. 09‑P‑776. Bristol. January 6, 2011. ‑ August 15, 2013. Present: Berry, Wolohojian, & Hanlon, JJ. Controlled Substances. Constitutional Law, Confrontation of witnesses, Harmless error. Practice, Criminal, Confrontation of witnesses, Harmless error. Evidence, Certificate of drug analysis, Field Drug Test, Expert opinion. Witness, Expert. Indictments found and returned in the Superior Court Department on December 1, 2006. The cases were tried before E. Susan Garsh, J. William J. Keefe for the defendant. Natalie S. Monroe, Assistant Attorney General (Dean A. Mazzone, Assistant Attorney General, with her) for the Commonwealth. BERRY, J. This case involves a series of four controlled cocaine “buys” by a State trooper, acting undercover, from a man known as “Carlos” — but later identified as the defendant, Adolfo Marte. Based on these controlled buys, a jury convicted the defendant of four counts of trafficking in cocaine in excess of twenty-eight grams. The defendant was also convicted of a single count of trafficking in cocaine in excess of 200 grams based on seizures pursuant to a search warrant executed at the defendant’s apartment. See G. L. c. 94C, § 32E(b)(4). The search warrant was obtained on the same day as the defendant’s arrest, following the fourth controlled buy of cocaine. At trial, over the defendant’s objection, the Commonwealth introduced certificates of drug analysis, without trial testimony from the chemical analyst, to support each of the five trafficking charges. This was constitutional error violating confrontation rights. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009). The principal issue in this appeal[1] is whether the Commonwealth’s evidence — including field testing of the cocaine bought in the controlled buys and lack of field testing of the cocaine seized in the apartment — rendered the error in the admission of the drug certificates harmless beyond a reasonable doubt. See generally Commonwealth v. Vasquez, 456 Mass. 350, 352, 360-362 (2010).[2] For the reasons that follow, we affirm the four convictions based on the controlled buys. However, the conviction based on the seizure from the defendant’s apartment cannot stand. 1. Background. The following is a brief summary of the trial evidence. The circumstances underlying each of the controlled buys were, reduced to essential acts, nearly identical. Prior to each controlled buy, Trooper Daniel Tucker would contact the […]