COMMONWEALTH vs. JORGE VASQUEZ.

BERRY, J. On January 11, 2007, after a bench trial, the defendant was found guilty of two counts of distribution of cocaine, G. L. c. 94C, § 32A(c); and one count of possession of cocaine, G. L. c. 94C, § 32A(c). After the verdicts, the defendant pleaded guilty to the subsequent offender portion of one of the distribution indictments, G. L. c. 94C, § 32A(d), and to the subsequent offender portion of the possession charge. On appeal, the defendant contends that (1) the evidence that the Commonwealth presented to prove that the defendant distributed cocaine as a joint venturer was insufficient, as was the evidence presented to prove that the defendant constructively possessed cocaine found during a search of his apartment; (2) an identification based on a one-photograph array, presented to the undercover police officer, was unduly suggestive and therefore improperly admitted; and (3) the introduction in evidence of drug certificates violated his right under the Sixth Amendment to the United States Constitution to confront the witnesses. [Note 1] We affirm.

Background. This case involves an ongoing undercover police investigation that culminated in two separate cocaine purchases by an undercover officer. The second led to the police obtaining a search warrant for the defendant's apartment, in which a small amount of cocaine was found.

On July 7, 2005, State Trooper Henot Rivera went to 284

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Dwight Street Extension, apartment 4 left (4L), in Springfield, in an undercover capacity, to attempt to purchase drugs from a person he knew as "Flaco." Upon arrival, Rivera found Flaco and purchased an "eight-ball" of "crack" cocaine from him. The next day, State Trooper Daniel Soto showed Rivera a Registry of Motor Vehicles photograph of the defendant, which Rivera identified as a picture of Flaco.

On October 18, 2005, Rivera returned to 4L and told the defendant that he wanted to purchase an eight-ball of crack cocaine. The defendant explained that he only had "16's" so he went downstairs and returned with "Munchy," later identified as Juan Rebollo. Flaco then told Rebollo to "sell to him," [Note 2] and Rebollo responded by selling an eight-ball of crack cocaine to Rivera.

On October 20, 2005, the police executed a search warrant for 4L, which was the residence of the defendant as well as the location of the undercover purchases. The police found the defendant in the apartment, placed him under arrest, and, upon a search of the residence, found a small amount of cocaine.

1. Sufficiency of the evidence. After the close of the Commonwealth's case and again at the close of the evidence, the defendant moved unsuccessfully for required findings of not guilty on all counts. On appeal, the defendant contends that the evidence presented by the Commonwealth was insufficient to prove either that he distributed cocaine as a joint venturer when he told "Munchy" to "sell to him," or that he constructively possessed the cocaine that was found during the search of his apartment. We review the sufficiency of the evidence under the familiar standard set forth in Commonwealth v. Latimore, 378 Mass. 671 , 677 (1979), that is, "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ibid., quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

To prove guilt under a theory of joint venture at the time of trial, [Note 3] the Commonwealth was required to show that the defendant

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was "(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Ortiz, 424 Mass. 853 , 856 (1997), quoting from Commonwealth v. Longo, 402 Mass. 482 , 486 (1988). The defendant does not contest that he was present at the scene of a drug transaction or that he knew that "Munchy" intended to sell drugs to Rivera. Instead, the defendant contends that he was not willing to be involved in the sale. He claims that by saying "sell to him," he was simply noting that Munchy could proceed with the sale if he so wished. Not only does this interpretation of the evidence strain credulity but, even if accepted, evidence showing that the defendant acted as an intermediary to a drug transaction is sufficient to prove guilt on a distribution charge. Commonwealth v. Noons, 2 Mass. App. Ct. 814 , 814-815 (1974).

The defendant also contends that there was insufficient evidence to find him guilty of constructive possession. Constructive possession requires that the Commonwealth prove that the defendant had "knowledge [of the drugs] coupled with the ability and intention to exercise dominion and control." Commonwealth v. Rosa, 17 Mass. App. Ct. 495 , 498 (1984). "While presence in an area where contraband is found 'alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], . . . presence, supplemented by other incriminating evidence, "will serve to tip the scale in favor of sufficiency." ' " Commonwealth v. Albano, 373 Mass. 132 , 134 [1977], quoting from United States v. Birmley, 529 F.2d 103, 108 [6th Cir. 1976]." Commonwealth v. Brzezinski, 405 Mass. 401 , 409-410 (1989).

When the police executed the search warrant, the defendant was present in 4L, along with four other men. The police entered through the front door, which had been fortified by a two-by-four. One man jumped through a window and was captured later by police. The defendant was in the living room with another man. The other two men were, respectively, in the bathroom and in the shower stall of that bathroom. Springfield police Officer

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Reginald Miller testified that, upon a search of the defendant, he found $493 in cash. In a kitchen cabinet, police found a plastic bag containing cocaine, along with a package of sandwich bags, a pair of scissors, and a scale. When the officers found the men in the bathroom, the one closest to the toilet attempted to elude capture. He was restrained, and $274 was recovered from inside the running toilet. In viewing the evidence in the light most favorable to the Commonwealth, money was found on the defendant, and drugs and money were found in common areas in the house. With five men in the house, all of whom could have possessed the drugs, the defendant's presence and the previously listed factors are sufficient to tip the scales so that any rational trier of fact could find the requisite elements of constructive possession beyond a reasonable doubt. See Commonwealth v. Latimore, supra.

2. One-on-one photographic identification. The defendant contends that the process by which Rivera identified the defendant via one photograph was unnecessarily suggestive, and therefore the photograph was improperly admitted. Although no attempt was made to suppress the identification at trial, the defendant contends that failure to raise the issue constitutes ineffective assistance of counsel. Since "the alleged ineffectiveness amounts to nothing more than a failure to preserve claims for appeal, we need only ask whether those claimed errors produced a substantial risk of a miscarriage of justice." Commonwealth v. Randolph, 438 Mass. 290 , 297 (2002).

"It is well-settled that a one-on-one identification procedure of the type involved in this case, while generally disfavored, is not impermissibly suggestive so long as the police have good reason to use the procedure and they avoid any 'special elements of unfairness, indicating a desire on the part of the police to "stack the deck" ' against the defendant." Commonwealth v Sylvia, 57 Mass. App. Ct. 66 , 69 (2003), quoting from Commonwealth v. Leaster, 395 Mass. 96 , 103 (1985). There is no need for exigent circumstances in order to justify this procedure; "good reason" is sufficient. Ibid. In this case, the identification was made one day after the July 7, 2005, drug transaction in an ongoing investigation. The defendant argues that the possibility existed to use a larger array and that possibility is sufficient to render the identification unduly suggestive. "Failure of the police

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to pursue alternate identification procedures does not in itself render an identification unduly suggestive. The question is whether the police acted permissibly. The answer is not governed by the availability of another approach." Commonwealth v. Martin, 447 Mass. 274 , 280 (2006). Here, while the procedure may not have been favored, it was permissible, and there is no further evidence supporting the conclusion that the identification was prejudiced. [Note 4]

3. Issues involving the drug certificates. With respect to the two drug sales and the possession charge that are at issue here, four certificates of analysis were introduced during the Commonwealth's case. The certificates are, in effect, out-of-court affidavits, introduced at trial to prove that the substances in question are, in fact, cocaine. No analyst was called to testify at trial. At the introduction of each certificate, defense counsel had the opportunity to object, but did not do so. Although the issue was thus waived, the defendant contends that his claim should be treated as if there had been an objection and thereby preserved for appellate review under the harmless beyond a reasonable doubt standard, rather than under the substantial risk of a miscarriage of justice standard, which generally applies to nonpreserved error.

During the pendency of this appeal, the United States Supreme Court decided Melendez-Diaz v. Commonwealth, 129 S. Ct. 2527, 2532 (2009), holding that, under the Federal Constitution, "[a]bsent a showing that the analysts were unavailable to testify at trial and that the petitioner had a prior opportunity to cross-examine them, petitioner was entitled to 'be confronted with' the analysts at trial." Ibid. Thus, the admission at a criminal trial of drug certificates of analysis, without testimony by the analyst who performed the drug test, is in violation of the confrontation clause of the Sixth Amendment to the United States Constitution.

The United States Supreme Court noted that, as a matter of Federal constitutional law, the holding in Melendez-Diaz

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"involves little more than the application of our holding in Crawford v. Washington, 541 U.S. 36 [2004]." Id. at 2542. Thus, for constitutional analysis, the Crawford decision was a presage to Melendez-Diaz. Indeed, in Crawford, the court delineated the confrontational problem inherent in the admission of out-of-court affidavits, such as the attested affidavits of drug analysis involved here. Specifically, in Crawford, the Court described such affidavits as within the class of "core" testimonial statements, subject to confrontation rights, and wrote as follows.

"The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

"Various formulations of this core class of 'testimonial' statements exist: 'ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially' [and] 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.' "

Crawford, 541 U.S. at 51-52 (citations and quotations omitted) (emphases added). Given these statements in Crawford, it cannot be gainsaid that a new line was drawn delineating that the admission at trial of affidavits, including the affidavits at issue here in the form of out-of-court drug analysis certificates, without in-court testimony by the analysts violated a defendant's right of confrontation under the Sixth Amendment to the United States Constitution. This constitutional doctrine announced in Crawford is a new rule which has retroactive effect to all pending cases. "Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect." Ivan V. v. New York, 407 U.S. 203, 204 (1972), quoting from Williams v. United States, 401 U.S. 646, 653 (1971). "[A] new rule

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for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Griffith v. Kentucky, 479 U.S. 314, 328 (1987). But, important to the issue presented in this case, Federal retroactivity looks backwards. With such retroactivity, irrespective of whether there was an objection at trial, the higher standard of harmless beyond a reasonable doubt for appellate review of issues arising out of the admission of affidavits of drug analysis is preserved in trials conducted prior to Crawford, provided that the trial is the subject of a pending appeal on direct review or not yet final, as of the date, March 8, 2004, on which Crawford was decided. Conversely, Federal retroactivity, by definition, is not forward-looking [Note 5] and does not preserve the harmless

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error standard in trials where there is a failure to object after a new Federal rule or doctrine is on the constitutional law books as precedent of the United States Supreme Court. Thus, here, in trials conducted after Crawford, retroactivity is a legal and temporal impossibility, and a trial objection would be required to invoke the harmless error standard of review with respect to the admission of out-of-court affidavits, including affidavits that are drug analysis certificates, such as are at issue here.

There was no such objection in this case, and, therefore, the harmless error standard of appellate review would not apply to this post-Crawford trial, absent some exception to excuse the lack of objection. Rather, the standard governing appellate review would be the traditional one for nonpreserved error, i.e., the substantial risk of a miscarriage of justice standard.

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The defendant cites the so-called "clairvoyance exception" [Note 6] to bring this post-Crawford trial within the harmless error standard of review. Because the defendant invokes that exception and because that exception was referenced in the recent Supreme Judicial Court decision of Commonwealth v. Connolly, 454 Mass. 808 , 830-831 (2009), see note 6, supra, the term

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"clairvoyance exception" will, from time to time, be referenced herein. However, there are reasons that the "clairvoyance exception" is not the appropriate frame of reference to resolve the Federal question presented in this direct appeal. See note 5, supra. As the Supreme Judicial Court observed in the recent Connolly case, the question whether the "clairvoyance exception" applies "is not free from doubt." Connolly, supra at 830.

One problem giving rise to such doubt is that the clairvoyance exception has not developed principally in connection with direct appeals, but rather has been directed to collateral appeals, which are litigated by the procedural means of a motion for a new trial pursuant to Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). In the context of such collateral postconviction appeals, the clairvoyance exception has evolved as an exception to waiver -- that is, an exception to waiver of a constitutional point of law where the asserted claim of error was not objected to at trial or raised in the direct appeal. This distinction, and the general nonapplicability of the clairvoyance exception in direct appeals, is expressed in Commonwealth v. Randolph, 438 Mass. 290 (2002), as follows:

"The third [exception to waiver in postconviction review by failure to object] is known as the 'clairvoyance' exception, and applies to errors of a constitutional dimension 'when the constitutional theory on which the defendant has relied was not sufficiently developed at the time of trial or direct appeal to afford the defendant a genuine opportunity to raise his claim at those junctures of the case.' Commonwealth v. Rembiszewski, 391 Mass. 123 , 126 (1984). In these circumstances we review the claim as if it had been properly preserved." (Emphasis added).

Id. at 295. Given that the clairvoyance exception is generally considered in collateral proceedings after conviction and after direct appeal, a majority of this court have analyzed the question presented in this direct appeal as one of Federal law (see note 5, supra, and accompanying text). [Note 7] As previously discussed, in direct appeals, this Federal retroactivity law focuses not on the clairvoyance

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exception, but rather on the point in time when the Sixth Amendment confrontational bar to the admission of affidavits emerged as a new Federal constitutional rule. From this perspective, this court is led to the view that the controlling date is March 8, 2004, the date of the Crawford decision. Thus, in a trial conducted before this Crawford date, and for which a direct appeal is pending and no final judgment has issued, full retroactivity as a matter of Federal law applies, and the harmless error standard of review governs notwithstanding the lack of trial objection to the admission of an affidavit of drug analysis. See Griffith v. Kentucky, supra; Ivan V. v. New York, supra. See also Mullaney v. Wilbur, supra; Hankerson v. North Carolina, supra. For trials which were conducted after the Crawford date of March 8, 2004, and for which direct appeals are pending and not in final judgment, in order to reach the higher harmless error standard of review, a trial objection is required. If one was not posed, this court is led to the view that the substantial risk

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of a miscarriage of justice appellate standard of review governs such nonpreserved error. The clairvoyance exception for collateral appeals would not, we believe, alter these determinations.

Even if this court were to consider the clairvoyance exception in a direct appeal involving Federal retroactivity law, we would not find that exception to excuse the failure of trial counsel to object to the admission of the drug certificates and to support the harmless error standard. [Note 8] The Federal law was sufficiently developed at the time of trial to give defense counsel notice of the confrontation issue looming with respect to the drug certificates. Thus, the clairvoyance exception would not save the failure to object because Crawford did provide notice that the admission of out-of-court generated affidavits -- such as the four drug certificates prepared for litigation and admitted in this case, without testimony by the analysts -- was fraught with Federal confrontation error. On this point, Crawford limned a prelude of what out-of-court "core testimonial statements" would be deemed violative of the confrontation clause, including but not limited to, "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits." Crawford, 541 U.S. at 51-52.

Notwithstanding this highlighting in Crawford, counsel cites to Commonwealth v. Verde, 444 Mass. 279 , 283-284 (2005), as providing reason why an objection based on the Federal confrontation clause was not forthcoming in this trial. In Verde, the Supreme Judicial Court held that the admission of a drug certificate in lieu of the analyst's testimony was admissible as a business record, and, therefore, the introduction of the record as evidence at trial not did not infringe upon confrontation rights. The Verde case, it is suggested, obviated the need to raise a Sixth Amendment based objection to the admission of the drug certificates. But, this theory is problematic because, when confrontation rights under the Sixth Amendment to the United States Constitution are implicated, a State court decision analyzing

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those rights would not provide a final and failsafe ground for not interposing a federally based confrontation challenge and objection. The highest court of a State is entitled to great deference and respect, yet a State court does not determine the last and final word on a Sixth Amendment confrontation clause issue -- a point of supremacy law on which the Supreme Judicial Court has written. Where "[t]he issue before us is one of Federal law, . . . we are bound by the Supreme Court's construction of Miranda's scope [and one might add the scope of the Sixth Amendment confrontation clause]. '[A] state court can neither add to nor subtract from the mandates of the United States Constitution.' " Commonwealth v. Bryant, 390 Mass. 729 , 741 (1984), quoting from North Carolina v. Butler, 441 U.S. 369, 376 (1971). "We are of course bound by decisions of the Supreme Court on questions of Federal law." Commonwealth v. Masskow, 362 Mass. 662 , 667 (1972). Accordingly, the decision in Verde cannot be construed to have erased the Crawford notice of the Federal constitutional issue. Thus, Verde, standing alone, does not support or excuse a failure to object and challenge the admission of drug certificates under the Sixth Amendment confrontation clause.

Indeed, in many trials after the Verde decision, defense counsel objected to the introduction of drug certificates on the basis of Crawford. The practice of defense counsel posting trial objections to the introduction of out-of-court declarations and affidavits of analysis, post-Crawford and post-Verde, is reflected in direct appeals before this court. [Note 9], [Note 10]

In addition and to the same end, many defense counsel across

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the country challenged the admissibility of such evidence in State courts. A virtual drumbeat of constitutional challenges is cataloged in the Melendez-Diaz petitions for certiorari. [Note 11] What is significant about this course of criminal litigation is that it provides further evidence that the Sixth Amendment constitutional issue concerning the admission of out-of-court affidavits and drug certificates (and other offense elements such as ballistics analysis) was hotly contested. In effect, after Crawford, challenges were mounting, and any evidentiary protocol allowing the admission of a drug certificate in lieu of testimony was under siege.

Notwithstanding what was an active, indeed, intense Sixth Amendment legal issue, no objection on these Federal constitutional grounds was interposed in this case. Therefore, the error in the admission of the drug certificates is reviewed in this appeal to determine whether there was a substantial risk of a miscarriage of justice.

We determine such a risk was not presented. In this case, there was testimony by the undercover officer that he requested to purchase cocaine from the defendant by its street name and was then given the substance in question in exchange for money, which supports the inference that the substances from the drug transactions, were, in fact, cocaine. [Note 12] "Proof that a substance is a particular drug need not be made by chemical analysis and

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may be made by circumstantial evidence." Commonwealth v. Dawson, 399 Mass. 465 , 467 (1987). See Commonwealth v. Alisha A., 56 Mass. App. Ct. 311 , 313-314 (2002) ("The jury reasonably could have inferred that the distributed substance was Klonopin from the juvenile's statements to [a witness] the evening before the incident that she would be bringing Klonopin pills into school and distributing them to others . . ."). Moreover, the evidence that was sufficient to prove constructive possession, discussed earlier, along with testimony by the officers who searched 4L, was sufficient circumstantial evidence to prove that the substance possessed was cocaine. Given there was circumstantial evidence that supported proof of the element of each crime, we find that any error was insufficient to materially influence the verdict. [Note 13]

In the circumstances, the justices of this court have determined

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that the efficient administration of justice will be served by reporting the third issue of this opinion, "3. Issues involving the drug certificates," which is joined by a majority of the justices, together with the dissenting opinion, which is joined by other justices, to the Supreme Judicial Court. G. L. c. 211A, § 12.

Judgments affirmed.

DREBEN, J. (dissenting). On May 19, 2005, the highest court in the Commonwealth decided in Commonwealth v. Verde, 444 Mass. 279 (2005), after extensive analysis of Crawford v. Washington, 541 U.S. 36 (2004), that even where the defendant offered evidence to rebut a drug certificate, the analyst was not required to testify. In two subsequent cases prior to the defendant's convictions, the Supreme Judicial Court cited the Verde case with approval. See Commonwealth v. DeOliveira, 447 Mass. 56 , 67 (2006); Commonwealth v. Maloney, 447 Mass. 577 , 582, 590, 592 (2006). This court, also prior to the defendant's convictions and relying on Verde, rejected challenges to certificates based on Crawford in ten decisions under Appeals Court rule 1:28 [Note Dissent1] and in one published opinion. [Note Dissent2] In view of the state of the law at the time of the defendant's trial, the defendant should be excused for having failed to foresee that the United States Supreme Court might disagree with our recent firmly established precedent. See Commonwealth v. D'Agostino, 421 Mass. 281 , 285 (1995) (discussing the "so-called clairvoyance exception"). I do not think he should have been required to make a futile objection.

Unlike the situation in Commonwealth v. Connolly, 454 Mass. 808 ,

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830 (2009), the error here was not harmless beyond a reasonable doubt. Therefore, I would remand for a new trial. I respectfully dissent.