464 Mass. 566 - Appellant Montoya Brief - Mass Cases

COMMONWEALTH OF MASSACHUSETTS
Appellee
Vs.
EDWIN MONTOYA
Defendant/Appellant
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SJC-II086
MIDDLESEX, SS.
BRIEF AND RECORD APPENDIX OF THE DEFENDANT/APPELLANT
ON APPEAL FROM A JUDGMENT OF CONVICTION AND
DENIAL OF A MOTION FOR A NEW TRIAL ENTERED IN
MIDDLESEX SUPERIOR COURT
ATTORNEY FOR THE DEFENDANT/APPELLANT:
PAUL C. BRENNAN, ESQ.
BBO#055930
623 MAIN STREET
WOBURN, MA. 01801
Tel.: (781) 935-6107
Email: paulcbrennan@gmail.com
Date: November, 2011

TABLE OF AUTHORITIES
QUESTIONS PRESENTED
STATEMENT OF THE CASE
FACTS
I. MOTION TO SUPPRESS
TABLE OF CONTENTS
II. THE TRIAL
A. The Commonwealth's Case At Trial
B. The Defendant's Case At Trial
SUMMARY OF ARGUMENT
ARGUMENT
I. THE DEFENDANT'S MOTION TO SUPPRESS
SHOULD HAVE BEEN ALLOWED BECAUSE AT
THE PRECISE MOMENT THAT THE POLICE
ARRESTED THE DEFENDANT THEY DID NOT
HAVE PROBABLE CAUSE TO DO SO OR IN
THE ALTERNATIVE THE STATEMENTS THAT
THE DEFENDANT MADE DISCLOSING THE
EXISTENCE OF THE HIDE WAS NOT SHOWN
BEYOND A REASONABLE DOUBT TO HAVE
BEEN MADE VOLUNTARILY
A.The Pol Did Not Have Probab Cause
To Arrest The Defendant
B.The Defendant's Statement Disclosing
The Existence Of The Hide Was Not Shown Beyond
A Reasonable Doubt To Have Been Voluntarily Made
Page No.
iii
1
4
9
9
14
14
18
20
22
22
22
29

Page No.
II. THE DEFENDANT WAS DEPRIVED OF HIS
CONFRONTATION RIGHTS AT TRIAL WHEN
DRUG ANALYSIS CERTIFICATES WERE
ADMITTED INTO EVIDENCE AND WHICH ERROR
WAS NOT HARMLESS BEYOND A REASONABLE
DOUBT AS PERTAINING TO THE ISSUES OF THE
NATURE AND THE WEIGHT OF THE ALLEGED
CONTRABAND AND WHEREFORE HIS MOTION FOR A
NEW TRIAL SHOULD HAVE BEEN ALLOWED 31
A. The Evidence Concerning The Weight 34
B. The Nature Of The Substance 40
II. THE DEFENDANT WAS DEPRIVED OF THE
EFFECTIVE ASSITANCE OF COUNSEL AT TRIAL
AND WHICH CREATED A SUBSTANTIAL RISK OF
A MISCARRIAGE OF JUSTICE 46
CONCLUSION 50
CERTIFICATION OF COMPLIANCE OF BRIEF
ADDENDUM
INDEX TO RECORD APPENDIX
Ii

UNITED STATES CONSTITUTION
TABLE OF AUTHORITIES
Page No.
Fourth Amendment 28
Fifth Amendment 29
Sixth Amendment 32, 48
MASSACHUSETTS DECLARATION OF RIGHTS
Art. 12 29, 48
Art. 14 28
MASSACHUSETTS STATUTES
il
IG. L. c. 94C, §32A(c) .' 4
G.L. c. 94C, §32E (b) (2) 4
G.L. c. 94C, §32J 4, 5
G.L. c. 94C, §40 5
G.L. c. Ill, §13 31
UNITED STATES SUPREME COURT CASES
Aguilar v. Texas,
378 U.S. 108 (1964) 27
Bollenbach v. United States,
326 U.S. 607 (1946) 42
Milton v. Wainwright,
407 U.S. 371 (1972) 33
Spinelli v. United States,
303 U.S. 410 (1969) 27
Weiler v. United States,
323 U.S. 606 (1945) 41
iii

Commonwealth v. Levy,
459 Mass. 1010, 1011 (2011)
Commonwealth v. Marini,
375 Mass. 510 (1978)
Commonwealth v. McCarthy,
385 Mass. 160 (1982)
Commonwealth v. Medeiros,
395 Mass. 336, 343 (1985)
Commonwealth v. Melendez,
407 Mass. 53 (1990)
Commonwealth v. Melendez z,
76 Mass. App. Ct. 229 (2010)
i'
iCommonwealth v. Montanez,
410 Mass. 290 {1991}
Commonwealth v. Muniz,
456 Mass. 166 (2010)
Commonwealth v. O'Dell,
392 Mass. 445 (1984)
Commonwealth v. Perruzi,
15 Mas. App. Ct. 439 (1983)
Commonwealth v. Ramos
Mass. App. Ct. (2008)
Commonwealth v. Randolph,
438 Mass. 290(2002)
Commonwealth v. Rivas,
77 Mass. App. Ct. 210 (2010)
Commonwealth v. Rivera,
76 Mass. App. Ct. 67 (2009)
Commonwealth v. Rodriguez,
75 Mass. App. Ct. 235, 242 (2009)
v
Page No.
26
33
5
29
27
44
27
33
5
42
42
48
45
39
39

ecause (1) the evidence of kaging and conceal
the ckets of alleged cocaine in hide the
fendant's motor vehicle was suggestive of drug
-dealing; (2) the jury was informed what an eight.
was and therefore they could extr ate that to the
twenty packets that they took into the evidence room,
even though there was no evidence what any of Se
ckets weighed and the jury returned several
questions which clearly showed that they had great
difficulty in determining what the total weight of the
packets was and (3) the defendant allegedly made
confession to the police that he had been engaged
drug dealing but where the defendant took the stand at
trial and denied having made this con ssion and
therefore a credibility issue arose could only be
resolved by a jury and the fendant's alleged
confession could therefore have no relevance to a
harmless error analysis in this case.
Whether the defendant was deprived of the
effective assistance of counsel which created a
substant I risk of a misca age of justice where
twenty packets alleged cocaine had been placed a
at sealed bag that was marked as an exhibit and sent
3
1

into the jury room but on this bag was a tag or
strip of unknown origin and which cated that the
packets of leged cocaine weighed more than what was
stated on t drug analysis certifi and the jury
subsequently returned a question asking Court to
instruct them as whether they were to this
strip or the analysis certificate as weight
of the twenty s and trial counsel did not object
when the trial j instructed the jury that they
could in effect either as the correct wei
the alleged cocaine.
STATEMENT OF THE CASE
Pursuant to Bills of Indictment returned by
Grand Jury for Mi'ddlesex County, the defendant was
arraigned on December 21, 2006, Middlesex Superior,
Docket No. MICR2006-01449, and under Count One
with Trafficking In Cocaine r Twenty-Eight Grams
And Less Than One Hundred Grams contrary to G.L. c.
94C, §32E(b) (2); under Count Two h Distribution Or
Possession With Intent To Distribute A Class B
Substance, Specifically Cocaine contrary to G. L. c.
94C, §3 (c); under Count Three with Vio ion Of The
4

Drug Within A School Zone contrary to G.L. c.
94C, §32J; under Count Four with Conspiracy To Violate
The Drug contrary to G.L. c. 94C, §40. Record
Appendix At Eight To Eleven. 1
On July 6, 2007, the defendant filed a motion to
suppress with a supporting memorandum of law and
affidavit, RA 11-20, so two separate motions to
dismiss. The motion to ss was based upon lack
of probable cause for ndant's arrest and the
\1
{' involuntary nature of certain statements that the f
defendant made at the Police Barracks. O:[1e· of
the motions to dismiss was an ck on the integrity
of the grand jury based upon v. 0' Dell
392 Mass. 445 (1984). The other to dismiss was
based upon the insufficiency of t e before
the grand jury. See
Mass. 160 (1982). An evidentiary ri was held on
the motion to suppress on December '10 11, 2007,
1 References to the Record Appendix are r
abbreviated. For example, a reference to Page Nine Of
The Record Appendix will appear as RA 9.
5
385

April 6, 2011, the defendant filed a timely notice of
appeal from the denial of the motion for a new trial.
RA 156. On April 14, 2011, the Appeals Court vacated
the stay of the appellate proceedings.
STATEMENT OF FACTS
I. THE MOTION TO SUPRESS
On August 8, 2006, at approximat y 1:00 p.m.,
State Troopers Porter and Saunders, both in plain
clothes, were in separate unmar d vehicles
performing a roving surveillance of the parking I
of the Stop & Shop Supermarket that was situated on
the Everett and Chelsea city line. MTS1/6-7. This
area was known to have a high incidence of narcotics
activity. MTS1/8.
While driving around in the parking lot, Trooper
Porter observed two motor vehicles, one a white
pick-up truck and the other a brown Toyota Corolla,
parked adjacent to another two to three feet apart,
but facing' in opposite directions. The driver's
side of each these vehicles were in close
proximity to each other, allowing the drivers the
respective vehicles to converse with one another.
9

They also appeared to be hanging out of windows
of their respe ive vehicles. MTS1/10. As he drove
past, Trooper Porter lost sight of these vehicles,
so he turned around and then ked his vehi e
about fty feet away. Trooper Porter then informed
Trooper Saunders by radio about his obse ions.
Trooper Saunders, who was nearby, turned around and
passing these two vehicle, he observed from about
forty feet away the driver of the brown Toyota pass
something to the driver of the pick-up truck.
However, he did not observe anything being
back in exchange. MTS1/43-44,65. Trooper Saunders
radioed Trooper Porter and informed him about what
he had just seen and then drove to back of the
parking lot and eventually followed the brown Toyota
onto Route 16. MTS1/45. Meanwhile, Trooper Porter
got out of his motor vehicle and approached the
white pick-up truck. The brown Toyota had departed
by then. The iver's side window of pick-up
truck was still open and through it, oper Porter
observed the driver of the pick-up truck ating a
substance in a spoon then smoking through a
glass tube. MTSl 12-13. After identifying himself
as a police officer, Trooper Porter asked the driver
10

anot r radio transmission from Trooper Porter
informing him that he ( Porter) had talked to
the driver of the pick-up t and that he been
him smoking. MTS1/46,48-50. Trooper Saunders then
got out of his vehicle approached the brown
Toyota. The defendant, who was the driver of the
brown T a, asked the what was going on.
Trooper Saunders asked the if he had just
bought drugs in the parking and then orde him
out of the motor vehicle. er the defendant
stepped out his car, Trooper Saunders pat fris
the defendant and retrieved his wallet, his I.D. and
a wad of cash in the amount of Thirteen Hundred
00/100 ($1,300) Dollars approx 1 Y . MT S 1 / 4 9 , 5 0
51. After Trooper Saunders then advised the
,
defendant of his Miranda rights, placed him under
arrest and put him in his vehicle. Trooper Saunders­
drove the de ndant to the Medfo State Police
Barracks. The brown Toyota was so towed to the
barracks. MTS1 52-53.
At the barrae , the defendant was first placed
a holding cell. MTS1/77-78. Before the defendant
was booked, Trooper Saunders told the fendant that
12

directions, a t door opened underneath the
passenger seat. From inside the hide, Lieutenant
Brooks retrieved glyc e bags containing what
appear to be an ounce-and-half or 28 grams of
cocaine. Also found in the hide were some cell
phones. MTS2 14-15. Lieutenant Brooks then went
back to the booking area and where defendant
still had one hand cuffed to wall. MTS2/15-16.
The defendant was then unhandcuffed and brought to a
small i erview room where enant ks advi
the defendant of his Miranda rights a in an.9
of red the defendant to have his statement audio
recorded but he declined. Lieutenant Brooks then
asked the defendant about the cocaine that was found
in his vehicle. MTS2 17-18. The defendant then gave
a lengthy statement about how he became involved in
selling cocaine. MTS2 18-20. defendant did not
call any witnesses.
'II. THE TRIAL
A. The Commonwealth's Case At Tri
At trial, Troopers rter and Saunders testified
concerning the stop of t defen nt and which
14

Corcoran was prob ly originally an eight ball.
(2/137) .
er Messina, a eld engineer the City
of Everett, testified that based upon the city
assessor's map, it was his opinion that the distance
between the Chelsea High School and the parking lot of
the Stop and Shop Supermar t was two hundred and
twenty and that the distance from high school
all the way to the left side the very end of
the rking lot was ill wi n one thousand feet.
(2/140-144) .
B. The Defendant's Case At Trial
The grist the defendant's testimony was that
about one week pri?r to his arrest, the defendant met
an individual he only knew as Andres at a y.
Andres showed him the brown Toyota and how to operate
the electr c hide inside. The fendant thought
that t hide was used to store important papers and
money. (2/165-167). On day that he was arre
he ran into Andres he 0 red to loan s brown
Toyota the defendant. Later on, Andres cal the
defendant and as d him to go to the parking lot of
the Stop and Shop Everett and pick up some money
18

The defendant then called Geir Boger, s
oyer, as a character witness. Mr. Boger testi
was the proprietor of a const business
the defendant had worked for for six years
and t the defendant had an Ie work ethic
a reputation veracity and hfulness in
workplace.
SUMMARY OF ARGUMENT
The evidence at the motion to suppress and
findings made by motion judge show that at t
t that the defendant was arrested by Trooper
Saunders, the sum tot of the col i ve facts known
to police officer may have been cient grounds
for reasonable s icion but not probable cause to
arrest him for distribution of cocaine. Pp. 22-28
The statements that the defendant made disclos
existence of hide were not vOluntarily
e he had been kept in custody handcuffed to
a 1, told that was in serious trouble and
should tal k to the police and reasonably fe
his car would damaged by a lice search for
20

indicates t t person would not be free to leave
without re to officer's inquiry is fun 1
to seizure). The second and most crucial s on
then is whether Trooper Saunders had probable cause to
arrest the fendant at the moment that he ef
the stop. Unfortunately, this issue is muddied by the
somewhat ue testimony of Troopers Porter
Saunders respectively concerning the radio
transmissions that Trooper Saunders received
Trooper Porter while he was following the de
and which accounts do not ent ly mesh.
Trooper Porter testified to sending just one
radio transmission at this t , i. e. that the
of the brown Toyota had just sold cocaine to
driver of white pick-up. Trooper Saunders on
other hand stified that the rst radio transmission
that he re ved from Trooper Porter indicated
Trooper Porter had found "product" but wit t
providing details. MTSI 45-48. Trooper S rs
testified that the second transmission that he
received from Trooper Porter indicated that he
(Trooper Porter) had observed the occupant of
white pick-up truck as smoking something. MTSl 45-48.
24

However, this radio transmission had occurred after
Trooper Saunders had already st d the defendant.
MTS1/45-49. Moreover, Trooper Sau rs did not
testi that he ard Trooper Porter say that the
defendant had just sold some coca to the occupant
the white pick-up. In s findings of fact, the
motion judge found only that Trooper Saunders had
received first radio transmission. He made no
finding concerning the second radio transmission. RA
Accordingly, the sum total of the combi
observations of both of these lice officers up to
the moment t the de ndant was st d, consisted
of the drivers of the brown Toyota and the pick-up
truck conversing with one another in a parking lot,
driver of the brown Toyota handing some unknown
obje to the dr of the ck-up truck, the brown
Toyota departing the scene and t the driver of the
6At the motion hearing, the judge found the testimony
of Trooper Saunders at first to be vague and confusing
as to when he rece d the two radio tran ssions
from Trooper Porter. However, the judge intervened and
was careful to pin down Trooper Saunders as to when he
received the rst radio transmission from Trooper
Porter and when received second. The second
radio transmission from Trooper Porter was received
after he already stopped the fendant. MTS1/48­
49.
25

the motion to suppress that Corcoran was a reliable
informant. Probable cause to arrest a suspect sed on
rmation provided by an informant must meet the
familiar two part test rived Spinelli v. United
States, 303 U.S. 410 (1969) and Aguilar v. Texas, 378
U.S. 108 (19640. See Commonwealth v. Upton, 394 Mass.
363, 369 (1985). The formant must have a basis of
knowledge for the information provided, Spinelli, 303
U.S. at p. 410, and the informant must also be
reliable, Aguilar, 378 U.S. at p. 108. The defendant
concedes that the basis of knowledge prong
satisfied in this case. See Commonwealth v. Montanez,
410 Mass. 290, 299-300 (1991). However, the veracity
prong has not been satisfi When the Commonwealth
relies on a statement inst an informant's penal
interest to prove that the in rmation is reliable,
the Commonwealth must show that the police knew the
informant's identity. Commonwealth v. Allen, 4a6
Mass. 575, 579 (1990), and the informant a
reasonable fear of prosecution. Commonwealth v.
Melendez, 407 Mass. 53, 57 (1990). In this case,
although the occupant of the pick-up truck was
identified as Corcoran, there was no evidence at the
hearing of the motion to suppress that Trooper Porter
27

was aware of his name and address the time that he
questioned him. Furthermore, when Corcoran affirmed
to Trooper er that had bought the cocaine from
the defendant, this did not really constitute a
statement inst 1 interest. After I, Trooper
Porter had already ordered Corcoran out of his pick-up
'truck and confiscated the alleged cocaine from him.
Clearly, Corcoran was under arrest at t s stage
he had nothing to lose by telling Trooper Porter what
he wanted to hear, i.e. that the defendant was one
sold him the cocaine.
The fendant therefore respect lly submits
fore that he was arrested without probable cause
in violation of s constitutional rights under the
Fourth Amendment to the United States Constitution and
under art. 14 of the Massachus ts Declaration Of
Rights and the fruits of that unlawful arrest,
cluding any statements that he made the police
station and the subsequent search of his motor
vehicle, are the fruits of a poisonous tree and must
therefore be suppressed. See Wong Sun v. United
States, 371 U.S. 471, 488 (1963).
28

variable that differentiates the inquiries into the
voluntariness of the waiver and the voluntariness of
the statement is the interrogation techniques used by
the investigating police officers. See Commonwealth v.
Scoggins, 439 Mss. 571, 577 (2003).
The defendant concedes that the evidence would
support a finding that the defendant waived his
Miranda rights. However, based upon the totality of
the circumstances, the Commonwealth has not discharged
the heavy burden that it has to show that the
defendant's statements to Lieutenant Brooks concernirig
the hide were voluntary. The undisputed evidence at
the motion hearing was that Trooper Saunders pressured
the defendant to co-operate with the police by telling
the defendant that he was being charged with a serious
crime and that it would be in his best interest to
talk with him. The defendant continued to be held in
the small booking room and handcuffed to the wall
until Lieutenant Brooks arrived. To put further
pressure on the defendant, Lieutenant Brooks told the
defendant that a K-9 had alerted the police to the
presence of narcotics in his motor vehicle. At first
the defendant did not say anything in response to this
30

the improperly admitted evidence 'might have had' on
the fact finder or the findings." Vasquez, supra at
3 62, quoting from Commonwealth v. Tyree, 455 Mass.
-676, 704 n. 44 (2010). The requirement that the
Commonwealth point to other overwhelming evidence to
show that the error was harmless beyond a reasonable
doubt is an extremely heavy one and not easily met.
See Commonwealth v. Marini, 375 Mass. 510, 521 n. 12
(1978), quoting Milton v. Wainwright, 407 U.S. 371,
372-373 (1972) (noting that "overwhelming" evidence
has en understood to mean evidence akin tothre
full confessions).
Furthermore, the Commonwealth does not establish
that the error was harmless beyond a reasonable doubt
simply by pointing'to other properly admitted evidence
that would establish the legal sufficiency of the case
against the defendant in absence the tainted
evidence. Commonwealth v. Muniz, 456 Mass. 166, 169
(2010). The error is not harmless beyond a reasonable
doubt if " ...the Commonwealth's case 'radiates from a
core of tainted evidence.' II Commonwealth v. Fluellen,
456 Mass. 517, 526 (2010), quoting supra at
702.
33

A. The Evidence Concerning The Weight
As part of its case against the defendant with
respect to trafficking charge, Commonwealth
introduced the drug certificate marked as Exhibit 7,
which stated the coca weighed 39.74 grams or
approximately twelve grams more than the threshold
amount charged in the indictment. Moreover,
eutenant Broo read this drug certifi into the
record. (219-92) ; RA 53.
,
, " "
In upholding the defendant's traff ickit{g
conviction, the motion judge ruled t because
jury was made aware through the testimony of ive
Hyde that an "eight ball" was one eighth of an ounce
or 3.5 grams and' \\ [f] rom this knowledge and ir
general familiarity with weight, the jury d have
ermined that the bags of cocaine in evidence
weighed ater than twenty-eight " RA 155. In
arriving at this conclusion, motion judge cited
Commonwealth v. Connolly, 454 Mass. 808, 832 (2009).
The Court's cision Connolly f supra, is
inapposite here because facts in this case are
34

easily distinguishable. In that case, a pol officer
was allowed to testify at trial that one-eighth of an
ounce of cocaine was the equival 3.5 grams and
, that one-quarter ounce was seven The SJC held
that this jury could extrapolate this that one
hundred grams was less than ounces. Therefore
when the large hard ball of coca was taken into the
jury room, the jury could form a lay opinion that it
weighed more than four ounces. Id. at pp. 831-832. In
this case, there was no is r the jury to make a
similar extrapolation. Although Detective Hyde, while;
testifying how cocaine is ged for street sale,
described an fteight " as one eighth of an ounce or
3.5 grams, he did not testify that in his opinion the
individually wrapped introduced into evidence as
,
Exhibit 5 were" ght balls flB • In fact, he admitted
that he had not ewed any police reports nor had he
even seen the s containing the alleged cocaine
before taking (2/133-134): Furthermore, the
motion judge's it finding that Detective Hyde's
testimony provided reliable alternative evidence
concerning weight of the alleged contraband
8 Detective Hyde so stated that cocaine was samet s
broken down into smaller lots for street s e in
amounts one gram and half a gram. (2/128)
35

harmless beyond a reasonable doubt where determining
whether the aggregate wei of cocaine contained in a
bag and several containers was over one hundred grams
involved too much guesswork on too close a question
the circumstances).
B. The Nature Of Substance
Paraphrasing in relevant rt t memorandum of
decision on defendant's motion for a new trial,
the motion judge ruled that independent circumstantial
evidence

to support a conviction". Commonwealth v. Dawson, 399
Ma s s. 465, 467 (1987) • Furthermore, the trial j
did not make a finding that any of officers were
qualified to testify as to the nature of the
substances. See Vasquez, 456 Mass. at p. 365.
Moreover, the officers " , not articulate how their
rtise permitted them to identi the substances'."
Commonwealth v. Charles, 456 Mass. 378, 382 (2010)
quoting from Commonwealth v. Melendez-Diaz, 76 Mass.
App. Ct. 229, 233 -(2010). No field tests were
performed, none of the witnesses was involved
gene ing the drug certi es, and tI [nJ one the
officers observed the fects of the substances on
anyone sting " Vasquez, supra at p. 364.
The last two findings of the motion judge
concerning packaging of the al ged contraband and
the location of a sophisticat hide (which the on
j found icularly important) are related as the
implicit assumption underlying these two findings is
that packaging of the alleged cont and and
location of hide are evidence of a modus operandi
of drug dealing cocaine as testified to by
Detect i ve Hyde. The testimony of Detective Hyde
44
i

focused on cribing street level drug transactions,
drug packing and the purposes of drug hi s. All
circumstantial evidence of wrong doing to sure, but
not compelling evidence concerning the nature of the
substance as being cocaine. See Commonwealth v. Rivas,
77 Mass. App. Ct. 210, 212 (2010) (foundation
questions asked of police officer only entitled him to
testify whether evidence of substance was consistent
with distribution and not as to he nature of the
substance) .
In sum, there can be no dispute that the
certificates were material and must have had a
power impact on the jury with respect to the issues
of the weight and the nature of the alleged
contraband, especially as there was no attempt to
dispute them. As has been already demonstrated, such
independent circumstantial dence that was not
tainted by the drug analysis certificates consisted
exclusively of the mode of packaging of the alleged
contraband in order to suggest drug aling. On the
other hand, the Commonwealth placed great reliance on
the drug analysis certificates at tria The drug
analysis certificate pertaining to the alleged
45

In his motion for a new t , the de also
raised the issue of ineffect assistance of counsel.
RA 59-60. As can be seen from affidavit sent
'defense counsel submitted wi this motion, trial
defense couns refused to provide any informat of
his trial strategy in not obj ing to the admission
of the drug ficates. RA 60-62.
In view of the decision of the SJC in Vasquez
decision rende after the ndant's motion r a
new trial was led and the that the is
entitled to harmless error analysis in this appeaT
with respect to the drug analysis certificates, the
issue of inef ive assistance of counsel in ling
to object to r admission at trial is moot.
However, re was one tant in the t where
the conduct defense counsel was clearly cient
and which is still before this Court. As scussed
above at pp. 37-38 supra, there was no excuse for
trial defense counsel in not obj ecting to t jury
considering strip with t figure of 43.5 ams
written on it and which strip was on t bag
containing individual pa s of alleged cocaine
in Exhib 5. This evidence was not only highly
47

prejudi al but also inadmiss e hearsay. This was
not a drug analysis certi cate and it did not corne
within any known rule of evidence as an exception to
the hearsay rule. Furthermore, the writing on s
st was testimonial in nature and fore vi ated
his confrontation rights under Sixth Amendment to
the United States Constitution and art 12 of the
Massachusetts Declaration Of Rights. By failing to
obj ect to this evidence, de e counsel failed to
preserve this issue for appellate ew based upon
t harmless error standard. Where ineffective
assistance of counsel based upon waiver is al
the standard of review is the substantial risk of a
miscarriage of justice standard. See Commonwealth v.
Randolph, 438 Mass. 290, 295-296 (2002). In the
memorandum of law in support of his motion a new
trial, the defendant raised this issue and also
requested an evidentiary hearing. RA 82-84. The motion
judge ruled that in light of the fact there was
sufficient evi for the jury to termine the
weight of the cocaine, t failure defense counsel
. to object to the admission of the label on the bag did
not constitute ineffective assistance of counsel. RA
155.
48

In applying less strict test of the creation
a substantial sk of" miscarriage of justice, the
st is whether erroneous adrniss of the label
on the bag materially influenced verdict insofar
as it hinged upon determination of the weight of
alleged cont "The subst ial risk of a
scarriage of justice standard has points of
cornmonality with t more particulariz appellate
standard of review governinq the legal fications
a violation of constitutional confrontat rights .
commonality between the standards involves
late court's obI ion to assess materiality
of e testimony that, in error, was not subject to
confrontation by cross-examination, and to weigh the
,
effect of this erroneously admitted unconfronted
imony against the st of the Cornmonwe th' s
proof, notwithstanding the confrontation-related
error." Commonwealth v. Brazie, 66 Mass. App. . 315,
319 (2006).
defendant respect ly submits that ew
of fact that the jury clearly had great difficulty
wi the question of the weight of the alleged
cant and, one cannot s with fair assurance
49
. ...f"