COMMONWEALTH vs. LUIS ORTIZ.

BOTSFORD, J . The defendant appeals from his convictions of

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distribution of a class B controlled substance, G. L. c. 94C, § 32A (c), and committing a drug offense within a school zone, G. L. c. 94C, § 32J. The trial took place before a jury in 2011, more than two years after the United States Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Before trial, the defendant's trial counsel orally stipulated that the substance at issue was cocaine and both the Commonwealth and defendant effectively treated this as an established fact during trial, but the jury only became aware of the stipulation itself when the judge spoke of it during his final charge to the jury. The defendant appeals from his convictions, arguing, among other claims, that because the stipulation never was presented to the jury, the Commonwealth failed to prove that the substance was cocaine and his motion for a required finding of not guilty should have been allowed. [Note 1] In a related vein, the defendant contends that any stipulation to an element of the crime charged must be recorded in a writing and signed by the defendant or at least the subject of a colloquy between the defendant and the trial judge, and the use of his trial counsel's oral stipulation without any writing signed by the defendant, or any judicial colloquy, constituted error requiring a new trial.

To date, we have not established any particular method for the parties in a criminal case to handle trial stipulations about the existence of an element of a crime or of a material fact more generally. Even if there were error in the manner the stipulation was handled in the present case, where the defendant does not dispute the existence of a stipulation that the substance at issue was cocaine, and where there was no objection at trial to the fact that this stipulation was first introduced to the jury during the course of the judge's final instructions, we conclude that no substantial risk of a miscarriage of justice resulted. In future cases, however, it will be incumbent on the Commonwealth to ensure that any stipulation concerning the existence of an element of the crime charged or of any material fact related to proof of the crime is presented in some manner to the jury as part of the evidence of the case.

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We also reject the defendant's claim that under current rules of practice, a stipulation between the Commonwealth and the defendant as to an element of a crime, no matter when the stipulation is agreed to, must be in writing and signed by him or the subject of a colloquy between the defendant and the trial judge. But in light of Mass. R. Crim. P. 11 (a) (2) (A), as appearing in 442 Mass. 1509 (2004), directing that any stipulation to the existence of a material fact contained in a pretrial conference report be signed by the defendant himself, we shall ask this court's standing committee on the rules of criminal procedure to consider whether it would be appropriate to adopt by rule a requirement similar to rule 11 (a) (2) (A) that would apply to stipulations first entered into at or immediately before trial. [Note 2]

Background. A complaint issued from the Quincy Division of the District Court Department on July 7, 2010, charging the defendant with the class B drug distribution and school zone charges of which he was convicted. [Note 3] The defendant moved to suppress evidence, and the motion was allowed in part and denied in part. A jury trial commenced in the District Court on September 22, 2011, but resulted in a mistrial after a witness referred to evidence that had been suppressed. A second jury trial took place on December 15, 2011, with a different judge of the District Court presiding, and the jury returned guilty verdicts on both charges. The defendant was sentenced to one year in the house of correction on the distribution charge, and two years on and after on the school zone charge. The defendant timely appealed, and we granted his application for direct appellate review.

We recite the facts in the light most favorable to the Commonwealth, given the defendant's challenge to the sufficiency of the evidence. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On June 29, 2010, Detective Erin Metcalf of the Weymouth police department was conducting undercover

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surveillance on Washburn Street when she observed a green sport utility vehicle (SUV) operated by a Hispanic male arrive in front of the residence of Karen McDonald at 24 Washburn Street. McDonald came out of her house and approached the passenger side of the green SUV, reached her right hand inside the passenger window, and then retracted her hand, concealing in it what appeared to be some kind of object.

Metcalf conducted undercover surveillance of McDonald's residence a week later, on July 6, 2010. At approximately 11 A.M., the same SUV that she had observed the previous week, operated by the same Hispanic male, arrived in front of the house. McDonald again approached the passenger side of the vehicle, extended her right hand into the window, and retracted it.

After the SUV drove off, Metcalf immediately approached McDonald and noticed that McDonald had a tissue paper in her hand; McDonald tried to put the tissue paper into her pocket. Metcalf identified herself as a police officer and ordered McDonald to "hand" her the tissue paper. McDonald did so, and Metcalf observed that it contained six small bags of white powder that she identified at trial as cocaine. [Note 4]

Metcalf reported what she had found over the police radio, and asked other officers to locate the green SUV and detain the driver. Two officers stopped the SUV around the corner from McDonald's residence. A third officer placed the driver (the defendant) under arrest. During a search of the defendant incident to the arrest, an officer seized from him two stacks of currency totaling $150, and an additional dollar bill containing a white powder residue.

When Metcalf arrived at the scene, she asked the defendant if he had any additional drugs on him, to which he replied, "I don't do drugs. I don't sell drugs." She further inquired "if [the defendant] [had] met a female at the corner house," to which he responded, "I don't know what you're talking about"; finally,

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she inquired whether the defendant had "stopped at number [twenty-four]," which prompted the defendant to state that he had stopped in front of that house after a woman "wav[ed] him down," and that he was en route to visit a friend named Jennifer somewhere in Weymouth. The defendant denied having been on Washburn Street prior to that date, July 6. [Note 5]

Discussion. 1. Stipulation that the substance was cocaine. The defendant claims that his motion for a required finding of not guilty should have been allowed because the Commonwealth did not introduce at trial any evidence that the substance at issue was a class B substance (cocaine). He argues that insofar as the Commonwealth must prove his guilt of a charged offense based on the evidence presented at trial, any stipulation to the existence of an essential element of such an offense must be presented to the jury during the Commonwealth's case or, in any event, before the close of the evidence. Given that the Commonwealth never introduced the stipulation or its contents during the evidence phase of this case, he contends, a finding of not guilty was required. The Commonwealth responds that under applicable evidentiary rules and principles, it was not required to introduce evidence of the stipulation or its contents during its case, and that, if we view the matter in the light most favorable to the Commonwealth, a rational trier of fact could fairly have concluded, based on the stipulation explained by the judge and the trial evidence, that all the elements of the crime of distribution of a controlled substance had been proved beyond a reasonable doubt.

Before considering the defendant's claim, we summarize the factual context in which it is presented.

a. Facts. At the beginning of the defendant's second trial, the trial judge inquired of the prosecutor and the defendant's counsel whether they had agreed to stipulate that the substance was cocaine; both counsel agreed that they had. [Note 6] During trial, both

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the prosecutor and defense counsel referred to the substance in the six small bags taken from McDonald as cocaine, but no mention of the stipulation itself was made by the prosecutor, the defendant's counsel, or the judge during the Commonwealth's case, and no certificate of drug analysis identifying the substance in the six bags as cocaine was introduced in evidence. At the close of the Commonwealth's case, the defendant orally moved for a required finding of not guilty but did not specifically mention the stipulation or more generally the absence of evidence concerning the identity of the alleged controlled substance as cocaine. The judge denied the motion. The defendant did not call any witnesses. After the formal close of the evidence, the judge indicated to both counsel during a charge conference that he planned to mention the agreed-upon stipulation as part of his final instructions to the jury. The defendant's counsel registered no objection.

In his final charge, the judge explained to the jury that to prove the defendant guilty of distribution of a controlled class B substance, the Commonwealth had to prove "three things" beyond a reasonable doubt: (1) the identity of the substance in question as a controlled substance, cocaine; (2) distribution by the defendant; and (3) that the defendant distributed the controlled substance knowingly or intentionally. With respect to the first element, the judge stated: "First, [the Commonwealth must prove] that the substance in question is a Class B controlled substance, namely, cocaine. And that has been agreed to by both parties, so you don't have to worry about that element" (emphasis added). The defendant's counsel did not object to this instruction.

b. Analysis. There is no question that in a criminal case, the Commonwealth carries the burden to prove beyond a reasonable doubt each element of any crime charged, and in a jury trial, it is the jury that must determine whether the Commonwealth has

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met this burden. See, e.g., United States v. Gaudin, 515 U.S. 506, 509-511, 514-515 (1995); Sullivan v. Louisiana, 508 U.S. 275, 277-278 (1993); In re Winship, 397 U.S. 358, 364 (1970). See also Commonwealth v. Gouse, 461 Mass. 787, 803 (2012) ("Due process requires that the prosecution prove beyond a reasonable doubt each element of the crime with which the defendant is charged"); Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 6-7 (2001) (same).

It does not appear that this court has ever been called on to consider squarely whether a defendant's stipulation to an element of a crime removes the Commonwealth's burden to prove that element at trial. We have, however, stated the negative of this proposition: that without a stipulation concerning the existence of an element, the Commonwealth's burden of proof remains fully intact. See Commonwealth v. Muniz, 456 Mass. 166, 173 n.7 (2010) ("absent a stipulation, the fact that the substance was cocaine was an essential element of the crime that the Commonwealth must prove beyond a reasonable doubt"). See also Commonwealth v. Charles, 456 Mass. 378, 383 (2010) (erroneous admission in evidence of certificates of drug analysis without testimony of analyst was not harmless beyond reasonable doubt where, inter alia, defendant "did not . . . stipulate to the composition of the substances"). Agreeing with courts in other jurisdictions, we now conclude that where the defendant has entered a stipulation with the Commonwealth as to the existence of an element of the crime being tried, the Commonwealth at least is relieved of the burden of introducing evidence other than the stipulation itself to prove that element. [Note 7] See United States v. Muse, 83 F.3d 672, 678 (4th Cir.), cert. denied, 519 U.S. 904 (1996) (by agreeing to factual stipulation concerning element of crime, "a defendant waives the requirement that the government produce evidence [other than the stipulation itself] to establish the facts stipulated to beyond a reasonable doubt"). See also United States v. Pratt, 496 F.3d 124, 127-129 (1st Cir. 2007), vacated and remanded, 555 U.S. 1132 (2009), judgment aff'd on remand, 568 F.3d 11, 15, 17-18

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(1st Cir.), cert. denied, 558 U.S. 959 (2009) (Pratt). Compare United States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995) ("Once a stipulation is entered, even in a criminal case, the government is relieved of its burden to prove the fact which has been stipulated by the parties"). Compare also United States v. Ayoub, 498 F.3d 532, 545-546 (6th Cir. 2007), cert. denied, 555 U.S. 830 (2008) (following Branch); United States v. Harrison, 204 F.3d 236, 240-242 (D.C. Cir.), cert. denied, 531 U.S. 911 (2000) (same); United States v. Hardin, 139 F.3d 813, 816 (11th Cir.), cert. denied, 525 U.S. 898 (1998) (same). [Note 8] Accord Brown v. State, 719 So. 2d 882, 888-889 (Fla. 1998); State v. Murray, 116 Haw. 3, 21 (2007); State v. Wolf, 134 Wash. App. 196, 199, 202-203 (2006). [Note 9]

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In the Pratt case, 496 F.3d at 127-128, the United States Court of Appeals for the First Circuit concluded that it was at least a "technical error" for the parties and the judge to present a stipulation concerning an element of the crime charged to the jury for the first time during the judge's final instructions -- although not an error that "remotely warrant[ed] reversal of Pratt's conviction." See id. at 130. [Note 10] The stipulation at issue in this case was handled at trial in the same manner as in Pratt. We need not decide whether the failure to introduce the stipulation in evidence or otherwise place it before the jury before the close of the Commonwealth's case was error, technical or otherwise, because even if we were to assume that it was, no substantial risk of a miscarriage of justice occurred. [Note 11]

This was not a case where the defendant stipulated to all the evidence on which a case was tried to a judge, in an effort to preserve his right to appeal the judge's pretrial rulings. See Commonwealth v. Castillo, 66 Mass. App. Ct. 34, 35-37 (2006) (defendant's stipulation to all material facts conclusive of guilt in order to appeal denial of motion to suppress decision was not tantamount to guilty plea; failure of judge to conduct proper inquiry of defendant's understanding of significance of such procedure required reversal of conviction). See also Commonwealth v. Brown, 55 Mass. App. Ct. 440, 448-449 (2002)

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(stipulation to all evidence at jury-waived trial was tantamount to guilty plea); Commonwealth v. Hill, 20 Mass. App. Ct. 130, 132-133 (1985) (defendant who stipulates facts that are conclusive of guilt in effect relinquishes same rights as one who pleads guilty, and is entitled to same safeguards that surround acceptance of guilty plea). Cf. Commonwealth v. Lewis, 399 Mass. 761, 762-763 (1987) (defendant offered to plead guilty or to admit to sufficient facts; same safeguards triggered). Rather, this was a full-blown trial before a jury in which the defendant's counsel agreed to stipulate to only one element of the distribution offense, namely, that the substance at issue was cocaine. At trial, the defendant (through counsel) emphasized purported gaps in the police officer's testimony and proposed the alternate theory that it was McDonald who distributed the cocaine to the defendant, not the other way around. The judge informed the jury of the substance of the stipulation before they began to deliberate, and there is no evidence in the record that the defendant, who was certainly present during the judge's charge to the jury, disagreed with that substance. Moreover, the judge also informed the jury repeatedly that the Commonwealth had the burden of proving all the elements of the offenses charged -- including, implicitly, proof that the substance in question was cocaine. In the circumstances, we cannot identify any prejudice to the defendant arising from the fact that the stipulation itself was explained to the jury during the judge's final instructions and not placed before them during the evidence phase of the trial. The defendant has not argued otherwise, and reversal of his conviction on this ground is not warranted. See Commonwealth v. Delaney, 442 Mass. 604, 615 (2004).

Nevertheless, we conclude that in the future, [Note 12] when the defendant and the Commonwealth have agreed to stipulate to the existence of an element in a case, the stipulation should be placed before the jury before the close of the evidence. Such a rule is consistent with the acknowledged burdens of production and proof that rest with the Commonwealth in a criminal case. See United States v. Muse, 83 F.3d at 679 ("While a valid stipulation

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relieves the prosecution of the burden of producing any other evidence in order to establish the fact stipulated, it does not relieve the prosecution from the 'burden of proving every element of the crime' beyond a reasonable doubt" [citation omitted]). It also will avoid the potential difficulty that could arise if there is a misunderstanding between the parties as to whether there is a stipulation regarding the existence of an element of an offense, no mention is made of the stipulation before the close of the Commonwealth's case, and the defendant then moves for a required finding of not guilty because no evidence was introduced with respect to that element. [Note 13] This rule, which is not constitutionally based, shall apply to all criminal trials conducted after the date of the rescript in this case. [Note 14]

2. Need for the defendant to sign an evidentiary stipulation or be informed of its consequences. The defendant further contends that any stipulation as to the existence of an element of an offense either must be memorialized in a writing the defendant has signed or must be the subject of a specific colloquy between the judge and the defendant; and that because neither occurred in this case, he is entitled to a new trial. For support, the defendant points to our rule governing pretrial conferences in criminal cases, Mass. R. Crim. P. 11, and in particular rule 11 (a) (2) (A), which provides that in connection with the pretrial conference, a written pretrial conference report must be filed that has been

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"subscribed" or signed by the prosecutor and the defendant's counsel, and that the defendant also must sign the report "when the report contains stipulations as to material facts." [Note 15]

The defendant's argument fails. Rule 11 (a) by its terms concerns pretrial conferences only. If, as apparently was the case here, the parties reach a stipulation at a later point in the life of a case, rule 11 (a) does not govern it, and therefore the requirement in rule 11 (a) (2) (A) that "stipulations as to material facts" be included in a writing signed by the defendant also does not apply. Nor is there any requirement in rule 11 (a) or elsewhere to the effect that if the defendant has not signed a stipulation concerning a material fact or a particular element of the crime charged, it is necessary for the judge to engage the defendant in a colloquy about it; [Note 16] as earlier indicated, this is not a case where the defendant and the Commonwealth have stipulated to all the evidence to be presented at a bench trial in contemplation of a guilty finding from which an appeal could be taken. See Commonwealth v. Castillo, 66 Mass. App. Ct. at 37.

That being said, the reason for requiring a writing signed by a defendant in connection with any stipulation agreed upon at the time of a pretrial conference, but not with respect to a stipulation that the parties reach at a later time, is far from obvious. [Note 17] Accordingly, we request this court's standing advisory

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committee on the rules of criminal procedure to consider whether it would be appropriate to add to those rules -- whether by amendment to rule 11 or in some other manner -- a provision requiring that any stipulation between the Commonwealth and the defendant as to the existence of a material fact or an element of an offense charged be set out in a writing that the defendant signs or be confirmed through a colloquy on the record. [Note 18]

3. Sufficiency of the evidence of distribution. Finally, we consider the defendant's claim that the evidence was insufficient to permit a finding by the jury that on July 6, 2010, he "distributed" cocaine.

The evidence presented at trial, considered in the light most favorable to the Commonwealth, showed that on July 6, 2010, the defendant arrived outside Karen McDonald's residence in his green SUV and, through the open passenger window of his vehicle, handed McDonald six bags of a white powder substance identified at trial as cocaine, and that in exchange he received cash. Such possible findings were supported by the testimony of the police officer who witnessed the June 29 and July 6 transactions; by evidence that a search of the defendant soon after the July 6 transaction between the defendant and McDonald occurred yielded two stacks of currency in the defendant's pocket, but no drugs; and by evidence that although the police had

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observed the defendant and McDonald interact outside McDonald's house on both June 29 and July 6, 2010, when questioned by a police officer regarding his whereabouts, the defendant denied knowing McDonald or having been on McDonald's street before July 6 -- evidence that could be accepted as indicating consciousness of guilt. While, as the defendant's trial counsel argued to the jury, there were other ways to interpret the hand-to-hand transactions through the open car window that the police officer observed on both June 29 and July 6, and it was possible that McDonald was the person who was engaged in selling cocaine, the jury were not obliged to accept this view. In sum, applying the standard of Commonwealth v. Latimore, 378 Mass. at 678-679, we conclude that the evidence was sufficient reasonably to satisfy the jury beyond a reasonable doubt that on July 6, the defendant knowingly or intentionally distributed cocaine.

4. Conclusion. The defendant's conviction of distribution of a class B controlled substance in violation of G. L. c. 94C, § 32A (c), is affirmed. We vacate the defendant's conviction of committing a violation of G. L. c. 94C in a school zone in violation of G. L. c. 94C, § 32J, and remand this case to the District Court for a judgment of dismissal on that charge.

So ordered.