78 Mass. App. Ct. 906

January 5, 2011.

In January, 2004, the defendant, Jose Arnaut, was convicted in a jury-waived trial of trafficking in 200 or more grams of cocaine, G. L. c. 94C, § 32E(b) (4); possession of cocaine with intent to distribute, G. L. c. 94C, § 32A(c); distribution of cocaine, G. L. c. 94C, § 32A(c); and two counts of a drug violation within a school zone, G. L. c. 94C, § 32J. The defendant appeals here from the denial of his second motion for a new trial, making several arguments, the crux of which is that Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), should be applied retroactively to a case pending on collateral review, even though the issue was not preserved at trial or raised in two earlier appeals. [Note 2]

While the defendant's direct appeal was pending, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). Interpreting this decision, the Supreme Judicial Court held in Commonwealth v. Verde, 444 Mass. 279 , 283-284 (2005), that certificates of drug analysis were not "testimonial statements" within the meaning of Crawford. In 2006, the defendant's direct appeal was denied. A later appeal from his pro se motion for new trial, filed in 2007, was denied in October, 2008. [Note 3] About a year later, in Melendez-Diaz v. Massachusetts, the Supreme Court held that such certificates are testimonial and trigger confrontation clause protections. Two months after the Supreme Court's Melendez-Diaz decision was issued, the defendant filed his second motion for a new trial, arguing for the first time that the admission of the certificates at his trial was error and adding that trial counsel and appellate counsel were ineffective for failing to raise this claim. The motion was denied and the defendant has again appealed.

Our response to the defendant's argument is guided by Teague v. Lane, 489 U.S. 288 (1989), and Commonwealth v. Amirault, 424 Mass. 618 (1997). In the latter, the court wrote that, "[i]n deciding whether a new doctrine shall be applied retroactively, once the regular course of adjudication has been completed, the novelty of the doctrine ordinarily cuts against its retroactive application: we simply ask whether the process was correct and regular according to the rules in force at that time. . . . [N]ew rules should not apply retroactively 'unless they fall within either of two very limited exceptions' . . . lest every development in the law entail a wave of new trials of matters long since closed . . . ." Commonwealth v. Amirault, supra at 638, quoting from Commonwealth v. Bray, 407 Mass. 296 , 300 (1990).

As the two exceptions [Note 4] do not apply here, see Whorton v. Bockting, 549

Page 907

U.S. 406, 416-421 (2007), [Note 5] the defendant's second pro se motion for a new trial was rightfully denied because he is not entitled on collateral review to the application of the Melendez-Diaz ruling. [Note 6]

Order denying second motion for new trial affirmed.

The case was submitted on briefs.

Jose Arnaut, pro se.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.


[Note 1] Also known as Jose Alberto Rodriguez Torres.

[Note 2] The remaining arguments are meritless.

[Note 3] The United States Supreme Court granted certiorari in Melendez-Diaz v. Massachusetts in March, 2008. 557 U.S. 1256.

[Note 4] "[A] new rule is only applied 'if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe' or addresses a procedure of 'fundamental fairness' which is 'implicit in the concept of ordered liberty' and 'without which the likelihood of an accurate conviction is seriously diminished.' " Commonwealth v. Amirault, supra at 638, quoting from Commonwealth v. Bray, supra at 300 (quotation and citation omitted). See Whorton v. Bockting, 549 U.S. 406, 416 (2007), quoting from Saffle v. Parks, 494 U.S. 484, 495 (1990) ("A new rule applies retroactively in a collateral proceeding only if [1] the rule is substantive or [2] the rule is a 'watershed rule of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding").

[Note 5] Whorton v. Bockting, supra at 421, held "that Crawford [v. Washington, 541 U.S. 36 (2004),] announced a 'new rule' of criminal procedure and that this rule does not fall within the Teague exception for watershed rules." We assume thus that Melendez-Diaz, which is based upon Crawford, is subject to the same interpretation. See Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2542. Accord Larkin vs. Yates, U.S. Dist. Ct., No. CV09-2034-DSF, slip op. at 2 (C.D. Cal. July 9, 2009); United States vs. Alexander, U.S. Dist. Ct., Nos. 2:04-CR-71, 2:09-CV-294, slip op. at 5 (N.D. Ind. Jan. 25, 2010); Newsome vs. Superintendent, U.S. Dist. Ct., No. 3:09-CV-92, slip op. at 3 (N.D. Ind. Feb. 17, 2010); Galiana vs. McNeil, U.S. Dist. Ct., No. 08-20705-CIV, slip op. at 18 (S.D. Fla. July 5, 2010).

[Note 6] This case differs from Commonwealth v. Vasquez, 456 Mass. 350 (2010), in that Vasquez involved a case on direct review while Arnaut's is on collateral review.