MA Test

[phalladar]

Rivera's testimony that the substance he purchased on July 7 was "consistent with cocaine" was probative of the distribution charges. The judge did not, however, make a finding, prior to Rivera's testimony, that Rivera's experience permitted him to offer an opinion that the substance was "cocaine." See Commonwealth v. Dawson, supra (when police or drug-user witness testifies as to nature of substance, judge "will first have to make a finding" that witness's experience with drug would "permit him to give an opinion as to what drug a particular substance was;" qualified witness's "knowledge and competence" and "lack of training in chemical analysis, will bear on the weight to be given to his testimony"). See also note 17, supra. Moreover, "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." Commonwealth v. Dawson, supra. See Commonwealth v. Melendez-Diaz, 76 Mass.App.Ct. 229, 233, 921 N.E.2d 108 (2010) (admission of drug certificates not harmless beyond reasonable doubt where "word `cocaine' frequently was used by the police, but at no time did the officers cite any objective evidence, criteria, or field tests; they did not articulate how their expertise permitted them to identify the substances as cocaine"); Cook v. United States, 362 F.2d 548, 549 (9th Cir.1966) (noting "judicially" that "whether or not a powder or substance is a narcotic cannot be determined by mere inspection of its outward appearance").

    Mistaken identification of cocaine by trained and experienced law enforcement personnel is not unknown in the annals of our law. See, e.g., Commonwealth v. LaVelle, 414 Mass. 146, 148, 605 N.E.2d 852 (1993) (undercover informant purchased substance police detectives "presumed to be cocaine" but that laboratory test proved was another substance); Care & Protection of Frank, 409 Mass. 492, 495-496, 567 N.E.2d 214 (1991) (police seized powdery substance from mother that they believed was cocaine but that laboratory tests proved

[456 Mass. 366]

394 Mass. App. Ct. 49
48 Mass. App. Div. 48
85 Mass.Supp. 4898
48 Mass.App.Dec. 4

was another substance). Cf. Commonwealth v. Scott, 428 Mass. 362, 363, 701 N.E.2d 629 (1998) (defendant sold "bag which purportedly contained cocaine but actually contained baking soda"). See also G.L. c. 94C, § 32G (prohibiting possession with intent to distribute counterfeit substance).18

    As to the substance seized from the defendant's apartment on October 20, 2005, the drug certificate for that was introduced through Trooper Colon, about whose specific experience and training in investigating the distribution of narcotics or in identifying substances as narcotics, if any, there was no testimony. Cf. Commonwealth v. Dawson, supra. The drug certificate identifying the substance as cocaine was the only evidence pertaining to

[923 N.E.2d 538]

the substance's chemical nature.19 On this record we cannot say that the drug certificates had no effect on the fact-finding judge, and did not contribute to the verdicts.

    To be sure, in addition to the drug certificates, other evidence tied the defendant to wrongdoing of some sort, specifically drug dealing. The doors to the defendant's apartment, as multiple officers testified, were barricaded, and before the October 18 purchase there were several men hovering on the stairs of the building who asked Rivera his purpose before permitting him to proceed to the fourth floor. Evidence seized from 284 Dwight Street Extension included a scale, rubber bands, a substantial amount of cash, sandwich bags, and a walkie-talkie—all relevant on the issue of distribution. But none of this properly admitted evidence established that the substances purchased and seized were "cocaine,"

[456 Mass. 367]

as the indictments charged.20 See, e.g., Commonwealth v. Soares, 384 Mass. 149, 152-153 n. 4, 156, 424 N.E.2d 221 (1981) (discussing evidence that defendant was conspirator in alleged drug distribution operation, and noting in passing that police seized in certain residence, among other things, plastic bag, large sum of money, bills, scale, and package of white powder identified by laboratory analysis as methamphetamine). This is not a case where the facts independent of the drug certificates overwhelmingly prove the nature of the substances sold to the undercover police or recovered from the defendant's apartment. Contrast Commonwealth v. Doherty, 411 Mass. 95, 102, 578 N.E.2d 411 (1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1169, 117 L.Ed.2d 415 (1992), quoting Francis v. Franklin, 471 U.S. 307, 325-326, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (erroneous intent instruction harmless beyond reasonable doubt where "principals' intent was not in dispute" because facts "`overwhelmingly preclude[d]' the absence of an intent to kill" on part of principals). Cf. Commonwealth v. Depina, 456 Mass. 238, 249-250, 922 N.E.2d 778 (2010). To conclude, as the dissent is willing to do, 456 Mass. at 373, 923 N.E.2d at 542-43 (Cordy, J., dissenting in part and concurring in part), that the only direct evidence that the white powder purchased or seized was cocaine, namely, uncontroverted scientific evidence that the Legislature has declared to be prima facie proof that the powder is cocaine, see G.L. c. 22C, § 39, meant little or nothing to the fact finder would turn the harmless error standard on its head. To reach such a conclusion beyond a reasonable doubt in this case would eviscerate the standard altogether.