COMMONWEALTH vs. JUSTIN DEMATOS.

DREBEN, J. Charged with trafficking in cocaine in an amount exceeding twenty-eight grams and trafficking within 1,000 feet of a school, the defendant, Justin DeMatos, was convicted of the lesser included offense of trafficking in cocaine in an amount of fourteen grams or more but less than twenty-eight grams, G. L. c. 94C, § 32E(b)(1), and was also convicted of the school zone violation. In his direct appeal, the defendant claims that he was deprived of his constitutional right of confrontation by the admission, over his objection, of certificates of drug analysis of the substances involved. His case was tried after the decision in Commonwealth v. Verde, 444 Mass. 279 (2005), and before the decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

Postconviction, he claimed his counsel was ineffective in not seeking a Franks-Amral [Note 1] hearing, and he sought such a hearing in support of his motion for a new trial. The motion was denied. That denial was consolidated with his direct appeal. We affirm his convictions and the denial of his motion for a new trial.

1. Evidence at trial. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979), the evidence at trial was as follows: On March 26, 2003, armed with a search warrant, [Note 2] Fall River police officers announced their presence and, after receiving no response, forced their way into the defendant's first-floor apartment at 162 McCloskey Street. Inside were three men and a pit bull terrier. Upon seeing the police, the defendant fled, carrying a pink box; some of its contents fell along the path of his flight. Among items subsequently retrieved were several vials of steroids, hypodermic needles, and a key. Police later used the key to open a safe in the defendant's apartment.

When the defendant was apprehended shortly after the chase, the pink box was next to him and contained $8,000 wrapped in a rubber band. Two golf-ball-sized plastic bags containing white

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powder believed to be cocaine were near the box. The police handcuffed the defendant and brought him to his apartment where he waived his Miranda rights. [Note 3] When questioned, he told police that he did not have any money or contraband other than what was in the pink box. Police, however, found in his apartment an additional bag of white powder, $2,679, a spoon with a powder residue, baggies, and three rolled-up dollar bills. [Note 4] Near the rear entrance through which the defendant had fled, police retrieved a small digital scale. The money, the three bags of white powder, the rolled-up dollar bills, the scale, the baggies, and the spoon with the residue were among the exhibits at trial and were sent to the jury. [Note 5]

After having been shown the bag of white powder found in the apartment, the defendant said, "Oh I forgot about that cocaine. Besides, that's just personal use." When asked what he was doing with two and one-half ounces of cocaine, [Note 6] he told the officer that he smokes cocaine all the time, and that three ounces were "no big deal to him." According to the officer, the defendant pointed out that the police only found one-half of an ounce in his house and also stated that he was smoking cocaine when the police initially knocked on the door. The police officer in charge of the investigation (Paul Gauvin) indicated on cross-examination that he believed the defendant "was a little high" when apprehended.

Certificates of drug analysis were admitted in evidence showing that each of the three bags as well as the residue on the spoon were cocaine. According to the certificates, one of the two bags found with the defendant after his chase contained 27.79 grams of cocaine, the other bag contained 27.91 grams, and the bag found in the apartment contained 14.86 grams of cocaine (a total of 70.76 grams).

After a voir dire, a police officer with extensive experience in narcotics investigations testified that fourteen grams is one-half

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of one ounce and that twenty-eight grams is one ounce, that one ounce of cocaine would sell for between eight and twelve hundred dollars, and that one-half of one ounce would sell for between four to six hundred dollars. When asked whether the possession by a person of sixty-eight to seventy grams of cocaine was consistent with personal use or with distribution, his answer was distribution, and when asked whether that amount of cocaine and $10,000 in cash was consistent with personal use or with distribution, he stated it would be consistent with distribution.

2. Melendez-Diaz issue. The United States Supreme Court's decision in Melendez-Diaz requires us to hold that the admission of the drug certificates was constitutional error. The certificates were within the "core class of testimonial statements" that trigger confrontation clause protections. Melendez-Diaz, supra at 2532, quoting from Crawford v. Washington, 541 U.S. 36, 51 (2004). Here, the defendant objected to their admission, and, in any event, in cases tried after the decision in Commonwealth v. Verde, 444 Mass. 279 (2005), and before Melendez-Diaz, the standard of review is whether the admission of the drug certificates at trial was harmless beyond a reasonable doubt. Commonwealth v. Vasquez, 456 Mass. 350 , 352 (2010). The standard is strict, and the question is whether

"we can be satisfied, beyond a reasonable doubt, that the erroneously admitted certificates of analysis had little or no effect on the verdicts. . . . It is not enough for the Commonwealth to demonstrate that its other, properly admitted evidence was 'sufficient' to convict the defendant . . . . Rather, to establish harmlessness beyond a reasonable doubt, the Commonwealth must show that other properly admitted evidence of guilt is 'overwhelming.' "

Id. at 362, quoting from Commonwealth v. Tyree, 455 Mass. 676 , 701, 704 n.44 (2010).

The Supreme Judicial Court has identified a number of factors that may be looked at, [Note 7] see Vasquez, supra at 360 n.12, but has stated "there is no uniform standard for all cases." Ibid.

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"Proof that a substance is a particular drug 'may be made by circumstantial evidence.' " Commonwealth v. Charles, 456 Mass. 378 , 381-382 (2010), quoting from Commonwealth v. Dawson, 399 Mass. 465 , 467 (1987). In Dawson, one of two questions reported was:

"Whether a substance can be identified as a controlled drug as defined by G. L. c. 94C, § 31 through the testimony of experienced police officers or the users of the drug rather than through laboratory analysis or testimony by a qualified chemist?"

Id. at 466-467. The court answered the question in the affirmative adding:

"The trial judge will first have to make a finding that any police or drug-user witness's experience with a drug would or would not permit him to give an opinion as to what drug a particular substance was. If the judge finds the witness qualified, the knowledge and competence of that witness, and his lack of training in chemical analysis, will bear on the weight to be given to his testimony. We suspect it would be a rare case in which a witness's statement that a particular substance looked like a controlled substance would alone be sufficient to support a conviction."

Id. at 467. See Vasquez, supra at 365. The court in Dawson also noted that "[t]he great weight of authority in this country permits, for example, an experienced user of a controlled substance to testify that a substance that he saw and used was a particular drug." Dawson, supra.

In this case, the defendant was a user of drugs. Indeed, he admitted to the police that he was using cocaine at the time of their initial entry -- a statement buttressed by the police officer's testimony that the defendant was a little high when apprehended. The defendant stated that he smoked all the time, that he had forgotten "about that cocaine" in the apartment, that

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the cocaine was for his personal use, and that three ounces was not a big deal.

In these circumstances, where the defendant admitted to being a substantial user of cocaine, stated that he was using cocaine in his apartment at the time the police arrived, and when shown the drugs found in the apartment, acknowledged that he had forgotten that cocaine was there, we consider the evidence that the composition of the drugs in the apartment was cocaine was so powerful that the certificates had little or no effect on the verdicts. See Commonwealth v. Harris, 75 Mass. App. Ct. 696 , 707 & n.10 (2009) (error harmless beyond a reasonable doubt where, among other evidence, defendant had signed statement admitting substance was cocaine). Equally strong, particularly in view of the defendant's statement that "three ounces was no big deal," is the inference that the bags of white powder found near him after he was apprehended was the same substance.

The overwhelming evidence of narcotics, including the large sum of money, the scale, the baggies, the spoon with a powder residue, and the defendant's flight, together with the defendant's admission that he was using cocaine when the police entered, and his implicit, if not explicit, admission that the drugs were cocaine lead us to conclude that the admission of the drug certificates had little or no effect in proving the substances found were cocaine. [Note 8]

The evidence of the certificates as to the amount of cocaine, although a more difficult question, was also, in our view, harmless beyond a reasonable doubt. The defendant was convicted of the lesser included offense of trafficking in fourteen or more grams of cocaine. When asked what he was doing with two and one-half ounces of cocaine, the defendant did not deny the amount, but rather stated that because he smoked all the time, three ounces was no big deal. He took pains to point out that only one-half of an ounce (fourteen grams) was found in his apartment. That he knew the actual weight of the cocaine can be inferred from the scale in his apartment. The one-half of an ounce bag as well as the two golf-ball-sized bags were admitted

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in evidence and sent to the jury. The jurors could determine that the weight of the cocaine in the three bags exceeded fourteen grams (half an ounce). [Note 9] See Commonwealth v. Connolly, 454 Mass. 808 , 831 (2009). While there was testimony that seventy grams was more indicative of distribution than of personal use, the jury rejected the weight of seventy grams stated in the certificates. The other evidence of distribution, including the large amount of cash, the scale, and the baggies was such that we consider the error in admitting the certificates as to weight had little or no effect on the verdict and hence was harmless beyond a reasonable doubt.

3. Motion for new trial. Subsequent to his convictions, the defendant brought a motion for a new trial (which was heard by the trial judge) on the ground that his counsel had been ineffective in failing to seek a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In support of his motion, he sought discovery and also a Franks hearing. He claims that the two controlled buys, which were essential to the validity of the warrant affidavit, never occurred. [Note 10] Under Franks,

"where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request."

Id. at 155-156. If perjury or reckless disregard is established by a preponderance of the evidence and the remaining content of the affidavit is insufficient to provide probable cause, the search warrant must be voided, and the evidence seized excluded. Id. at 156.

In Commonwealth v. Amral, 407 Mass. 511 , 522, 525 (1990), the Supreme Judicial Court held that a defendant, under a less stringent test than Franks, may be entitled to an in camera hearing to determine whether he or she must receive a Franks hearing. Amaral, supra at 525. The court held "that the public interest in

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deterring police misconduct requires the trial judge to exercise his or her discretion to order an in camera hearing where the defendant by affidavit asserts facts which cast a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant." Id. at 522. [Note 11] See generally Smith, Criminal Practice and Procedure §§ 4.36 - 4.40, 4.42 (3d ed. 2007); Grasso & McEvoy, Suppression Matters Under Massachusetts Law §§ 10-6[a]-[e] (2010-2011).

Here, the motion judge was satisfied that further inquiry was required. The question before us is whether his inquiry went far enough. We hold that it did, that an additional hearing was not necessary, and that the judge's denial of a new trial was within his discretion.

We take the facts relevant to the new trial motion from the record and the judge's careful memorandum. The defendant, in conjunction with his motion for a new trial, moved for extensive discovery concerning the controlled buys, pursuant to Mass.R.Crim.P. 30 (c)(4), 435 Mass. 1501 (2001), including: the date and times of the alleged controlled buys; identity of the confidential informant; amount of narcotics alleged to have been purchased; amount of money alleged to have been paid in the two controlled buys; serial numbers of the money alleged to have been used in the controlled buys; and results of chemical analyses conducted on the drugs alleged to have been purchased in the two controlled buys.

The defendant filed a supporting affidavit, not included in the record, which the judge stated averred: that the material contained in Officer Paul Gauvin's warrant affidavit setting forth the two controlled buys was false; that the defendant never sold drugs to anyone; and that, despite explicit requests, the Commonwealth never turned over to the defense the analyses from the alleged controlled drug buys, Gauvin's request for funds for the two buys or the reports, logs, or memoranda regarding the two alleged controlled buys.

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The judge noted appellate counsel's claim that the only information relevant to the controlled buys given to the defendant was a single document. The record shows that that document, entitled "Fall River Police Department Evidence/Property Custody Document," was dated March 28, 2003, two days after the warrants were executed and was redacted in two places. The document states that, as a result of the controlled buys, an unspecified amount of cocaine and "O.C." pills were received by Gauvin. It named Justin DeMatos (the defendant) as the person from whom the drugs were received and stated they were found at the defendant's address.

After recounting the pretrial proceedings and emphasizing the defendant's repeated requests for discovery, the judge summarized:

"DeMatos, by affidavit, denied that any drug sale took place. During 2005 and 2006, the Fall River Police Department failed to supply any information or documentation of the use of buy monies allegedly used in the controlled buys. Despite being directly ordered by the court [a different motion judge not the trial and current motion judge] to disclose such information, if available, the Fall River Police Department failed to provide any information tracing the existence of an account for buy monies, the use by Gauvin of buy monies, or the transfer of buy monies to the informant for use in the controlled buys. The question, therefore, arises whether trial counsel, faced with discrepancies in the handling of drugs pursuant to G. L. c. 94C, § 47A, [Note 12] together with a curious absence of records accounting for the buy monies involved in the controlled buys, should have, as a matter of effective representation, moved for a Franks or Amral hearing."

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The judge did not directly answer the question in his memorandum, but pointed out that the Commonwealth's failure to provide documentation of the use of buy monies "does not derive from the Commonwealth's assertion of a privilege based on protecting the informant's identity." [Note 13] He stated that the absence of documentation on the use of monies in the two controlled buys leads to the reasonable inference that no public moneys were transferred to the informant. The judge concluded that the defendant's affidavit, together with this inference and the discrepancies in following the requirements of G. L. 94C, § 47A, see note 12, supra, "provides enough heft to make it worthy of further exploration." He then ordered the Commonwealth "[t]o supply the court and appellate counsel with all information regarding the narcotics alleged to have been purchased and the buy monies alleged to have been used in the two controlled purchases."

In response to the court order, the Commonwealth submitted:

"1. Memorandum from Sgt. Paul Gauvin, Fall River Police (1 page);

"2. Fall River Police Evidence/Property Custody Document (1 page); and

"3. Controlled Purchase Buy Money Ledger (redacted, 1 page)."

Gauvin's memorandum, addressed to an assistant district attorney, stated that he was enclosing "the controlled buy log and the evidence custody document," and requested that they be sanitized. He also added that "as discussed during the trial with [the prosecutor], both the defendant and his brother had some involvement in threatening and physically assaulting several people in Fall River, in an effort to uncover the informant." [Note 14]

The Evidence/Property Custody Document was the document

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provided earlier, the only difference was that the portion that had previously been redacted now showed "1 bag cocaine" and "4 OCS pills." [Note 15] Upon receipt of this material, the judge entered the following order:

"Sergeant Paul Gauvin shall submit an affidavit addressing the authenticity of the 'buy money ledger' previously submitted to the court and the content of his one page memorandum on controlled buys that was also submitted to the court."

In response, Gauvin filed an affidavit stating that he participated in two controlled buys, that he obtained a certain sum of money for what is termed on the control buy log as "controlled buy 'B' " which covered both buys, that his memorandum attested to his concerns regarding safety, that both the controlled buy log and the Evidence/Property Custody documents are kept in the normal course of business, that he filled out the latter accurately, that the discovery materials submitted constitute the entirety of the information regarding the narcotics alleged to have been purchased and the buy monies, and that at the time the documents were drafted the department did not have a "controlled policy." [Note 16] A controlled buy policy was put in place on April 17, 2003.

Considering that he had "authoriz[ed] discrete discovery and [had] examin[ed] the results of that discovery process," the judge entered an order denying the motion for a new trial. In his view, the defendant had failed to demonstrate that the motion to suppress would have been successful and hence failed to show that counsel was ineffective. See Commonwealth v. Cutts, 444 Mass. 821 , 830 (2005).

The defendant's main focus on appeal is that the judge erred

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in failing to order a Franks hearing because the defendant had made a substantial showing that the Fall River police intentionally fabricated the account of the controlled buys alleged in the warrant affidavits. He lays stress on the following: that no document exists prior to the warrant affidavits suggesting that the defendant was involved in a controlled buy; while the controlled buy ledger which was not produced until after many requests and several court orders predates the affidavit, it makes no mention of the defendant; the copies of the money referenced in the controlled buy ledger do not exist; the drugs from the buy were not turned in to the evidence officer until two days after the execution of the warrant and one week after the buys allegedly took place; the drugs no longer exist; and there is no documentation supporting the claim that the defendant was threatening individuals in an attempt to learn the name of the informant and defendant's trial counsel never heard such a claim. [Note 17]

It is true that the matters listed required further inquiry and, indeed, so the judge determined. However, they did not require a Franks hearing or even an Amral hearing. In Commonwealth v. Alcantara, 53 Mass. App. Ct. 591 , 595 (2002), where statements of the affiant concerning the informant in the affidavit in support of the warrant appeared to be inconsistent with other warrant applications, the judge, after a hearing, found that the affiant was credible, the affiant's explanation for the apparent inconsistencies acceptable, and that the affidavit in support of the warrant application "did not contain misrepresentations sufficient to 'cast a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant.' " Ibid., quoting from Commonwealth v. Padilla, 42 Mass. App. Ct. 67 , 72 (1997). On appeal in Alcantara, the defendant argued that the failure of the judge to conduct an in camera Amral hearing in which the affiant was required to disclose the identity of the informant or informants was an abuse of discretion. Noting there was no showing of clear error

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in the judge's findings of fact, and that the challenge to the judge's decision was nothing more than an argument about the affiant's credibility, an area in which deference is given to the motion judge, we held that there was no abuse of discretion in the judge's acceptance of the affiant's explanation and that an Amral hearing was not needed.

In the present case, the prosecution supplied the judge with information that satisfied him that there were no misrepresentations. Despite the fact that withholding of information had been shown, there was no indication of intentional misrepresentation. Gauvin had been the primary prosecution witness at trial, and the judge had observed him and could assess his credibility. In his memorandum requiring additional discovery from the Commonwealth, the judge correctly pointed out that "the presence of misstatements or omissions in record-keeping on the buy monies and drugs involved in the controlled buys adding up to negligence" would not require either a Franks or Amral hearing. See Commonwealth v. Nine Hundred and Ninety-Two Dollars, 383 Mass. 764 , 767 (1981).

Implicit in his decision denying the motion for a new trial was a finding that Gauvin was credible, that the discrepancies and late production were most likely the product of negligence and that, in any event, there were no misrepresentations sufficient to "cast a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant." Amral, supra at 522.

Although the judge did not hold a preliminary hearing, as the judge did in Alcantara, supra at 595, the motion judge here ordered additional discovery, examined the documents that had been provided, and required an additional affidavit from Gauvin in which he swore to the authenticity of the documents. In following this course, the judge did not abuse his discretion in accepting the documents as authenticated by Gauvin and, based on this material and his assessment of Gauvin's credibility during trial, in determining that an Amral hearing was not necessary.

Judgments affirmed.

Order denying motion for new trial affirmed.