464 Mass. 566 - Appellant Montoya Brief - Mass Cases
464 Mass. 566 - Appellant Montoya Brief - Mass Cases 464 Mass. 566 - Appellant Montoya Brief - Mass Cases
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
- Page 3 and 4: Page No. II. THE DEFENDANT WAS DEPR
- Page 6: Commonwealth v. Levy, 459 Mass. 101
- Page 11 and 12: into the jury room but on this bag
- Page 16 and 17: April 6, 2011, the defendant filed
- Page 19: anot r radio transmission from Troo
- Page 25: Corcoran was prob ly originally an
- Page 31 and 32: indicates t t person would not be f
- Page 34 and 35: the motion to suppress that Corcora
- Page 37: variable that differentiates the in
- Page 41 and 42: A. The Evidence Concerning The Weig
- Page 47: harmless beyond a reasonable doubt
- Page 52: focused on cribing street level dru
prejudi al but also inadmiss e hearsay. This was<br />
not a drug analysis certi cate and it did not corne<br />
within any known rule of evidence as an exception to<br />
the hearsay rule. Furthermore, the writing on s<br />
st was testimonial in nature and fore vi ated<br />
his confrontation rights under Sixth Amendment to<br />
the United States Constitution and art 12 of the<br />
<strong>Mass</strong>achusetts Declaration Of Rights. By failing to<br />
obj ect to this evidence, de e counsel failed to<br />
preserve this issue for appellate ew based upon<br />
t harmless error standard. Where ineffective<br />
assistance of counsel based upon waiver is al<br />
the standard of review is the substantial risk of a<br />
miscarriage of justice standard. See Commonwealth v.<br />
Randolph, 438 <strong>Mass</strong>. 290, 295-296 (2002). In the<br />
memorandum of law in support of his motion a new<br />
trial, the defendant raised this issue and also<br />
requested an evidentiary hearing. RA 82-84. The motion<br />
judge ruled that in light of the fact there was<br />
sufficient evi for the jury to termine the<br />
weight of the cocaine, t failure defense counsel<br />
. to object to the admission of the label on the bag did<br />
not constitute ineffective assistance of counsel. RA<br />
155.<br />
48
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