463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

COMMONWEALTH OF .MASSACHUSETTS
SUPREME JUDICIAL COURT
MIDDLESEX COUNTY 2011 SITTING
NO. 10926
COMMONWEALTH OF MASSACHUSETTS,
APPELLEE,
v.
RAYMOND MENDES AND RONALD MENDES,
APPELLANT.
ON APPEAL FROM AN ORDER AND JUDGMENTS OF
THE SOMERVILLE DISTRICT COURT
BRIEF FOR THE COMMONWEALTH
GERARD T. LEONE, JR.
DISTRICT ATTORNEY
KEVIN J. CURTIN
Assistant District Attorney
Office of the Middlesex .
District Attorney
15 Commonwealth Avenue
Woburn, MA 01801
(781) 897-6831
BBO No. 553352
kevin.curtin®state.ma.us

TABLE OF AUTHORITIES
ISSUES PRESENTED
STATEMENT OF THE CASE
Prior Proceedings
Statement of the Facts
TABLE OF CONTENTS
The Commonwealth's Case
The Defendant's Case
SUMMARY OF THE ARGUMENT
ARGUMENT
I. THE SEARCH WARRANT WAS SUPPORTED BY PROBABLE
CAUSE AND A SUFFICIENT NEXUS BETWEEN THE
DEFENDANT'S CRIMINAL ACTIVITY AND THE PALCE
TO BE SEARCHED.
A. Probable Cause
B. Nexus
II. THE ADMISSION OF THE CERTIFICATES OF ANALYSIS
WAS HARMLESS BEYOND A REASONABLE DOUBT. 22
A. Legal Standards 22
1. The Chapman Standard Remains The
Touchstone For Harmless Error Analysis
Under Both State And Federal Law. 22
2. This Court Has Consistently Applied The
Degraca Factors To Determine Whether A
Melendez-Diaz Error Was Harmless. 25
3. A Reviewing Court Can Always Consider
Whether The Strength Of The
Commonwealth's Case "Radiates From A
Core Of Tainted Evidence." 28
ii
1
2
2
4
4
10
14
16
16
20

B. Applying the Degraca/Mahdi Factors, The
Record Demonstrates Beyond A Reasonable
Doubt That The Admission Of The Certificate
of Analysis Was Harmless Error As To Ronald
Mendes.
III. THERE WAS NO SUBSTANTIAL RISK OF A
MISCARRIAGE OF JUSTICE IN THE EVIDENCE
CONCERNING CALLS PLACED TO RAYMOND MENDES'S
CELL PHONE. 44
CONCLUSION
ADDENDUM
A. Detective Hyde's Testimony Concerning The
Calls Placed To The Cellular Phones Was
Not Hearsay And Did Not Implicate
Confrontation Clause Protections.
B. There Was No Violation Of The Wiretap
Statute.
ii
37
46
47
50

Cases
Aguilar v. Texas,
378 u.s. 108 {1964)
Chapman y. California,
386 u.s. 18 (1967)
TABLE OF AUTHORITIES
Commonwealth v. Alfonso A.,
438 Mass. 372 {2003)
Commonwealth v. Blake,
413 Mass. 823 {1992)
Commonwealth v. Brandwein,
435 Mass. 623 {2002)
Commonwealth v. Brown,
453 Mass. 708 {2010)
Commonwealth v. Brum,
438 Mass. 103 {2002)
Commonwealth v. Byfield,
413 Mass. 426 (1992)
Commonwealth v. Cantres,
405 Mass. 238 {1989)
Commonwealth v. Cast,
407 Mass. 891 {1990)
Commonwealth v. Charles,.
456 Mass. 378 (2010)
Commonwealth v. Charras,
443 Mass. 752, (2005)
cert. denied, 546 u.s. 870 (2005)
Commonwealth v. Cinelli,
389 Mass. 197 (1983)
Commonwealth v. Cohen {No. 1),
456 Mass. 94 {2010)
Commonwealth v. Dawson,
399 Mass. 456 (1987)
iii
17
22, 35
18, 19
19, 21
29
29
47
18
42
17
33, 41
30, 35, 36
20
35
43

Cases
Commonwealth v. Degraca,
447 Mass. 546 (2006)
Commonwealth v. DeOliveira,
447 Mass. 56 (2006)
Commonwealth v. Depina,
456 Mass. 238 (2010)
Commonwealth v. DePina,
75 Mass. App. Ct. 842 (2009)
Commonwealth v. Diaz,
453 Mass. 266 (2009)
Commonwealth v. Durand,
457 Mass. 574 (2010)
Commonwealth v. Eason,
427 Mass. 595 (1998)
Commonwealth v. Fluellen,
456 Mass. 517 (2010)
Commonwealth v. Germain,
396 Mass. 413 (1985)
Commonwealth v. Howard,
446 Mass. 563 (2006)
Commonwealth v. Ilges,
64 Mass. App. Ct. 503 (2005)
Commonwealth v. Jarabek,
384 Mass. 293 (1981)
Commonwealth v. Johnson,
42 Mass. App. Ct. 948 (1997)
Commonwealth v. Little,
453 Mass. 766 (2009)
Commonwealth v. Mahdi,
388 Mass. 679 (1983)
iv
22
26
49
27
26
so
33
18
34, 35
18
48
47
45
24, 25, 40, 41, 43

Cases
Commonwealth v. McNulty,
458 Mass. 305 {2010)
Commonwealth v. Mendes,
78 Mass. App. Ct. 474 {2010),
S.J.C. No. FAR-19456 {2010)
Commonwealth v. Miles,
420 Mass. 67 {1995)
Commonwealth v. Morales,
76 Mass. App. Ct. 663 (2010)
Commonwealth v. Mullane,
445 Mass. 702 {2006)
Commonwealth v. Muniz,
456 Mass. 166 {2010)
Commonwealth v. O'Day,
440 Mass. 296 {2003)
Commonwealth v. Nardi,
452 Mass. 379 (2008)
Commonwealth v. Parapar,
404 Mass. 319 {1989)
Commonwealth v. Panetti,
406 Mass. 230 {1989)
Commonwealth v. Pena,
40 Mass. App. Ct. 905 {1996)
Commonwealth v. Perez-Baez,
410 Mass. 43 {1991)
Commonwealth v. Perrot,
407 Mass. 539 {1990)
Commonwealth v. Pina,
453 Mass. 438 {2009)
Commonwealth v. Ramsey,
79 Mass. App. Ct. 724 (2011)
v
24, 26
4
34
24
46
26
18
22
18, 19
48
47
18
24-25
21
40

Cases
Commonwealth v. Todisco,
363 Mass. 445 (1973)
Commonwealth v. Tyree,
455 Mass. 676 (2010)
Commonwealth v. Upton,
394 Mass. 363 (1985)
Commonwealth v. Vasquez,
456 Mass. 350 (2010)
Commonwealth v. Vieux,
41 Mass. App. Ct. 526 (1996)
Commonwealth v. Villatoro,
76 Mass. App. Ct. 645 (2010)
Commonwealth v. Warren,
418 Mass. 86 (1994)
Commonwealth v. Washington,
39 Mass. App. Ct. 195 (1995)
Commonwealth v. Welch,
420 Mass. 646 (1995)
Commonwealth v. Westbrooks,
79 Mass. App. Ct. 417 (2011)
Crawford v. Washington,
541 u.s. 36 (2004)
Crosland v. Horgan,
401 Mass. 271 (1987)
Delaware v. Van Arsdall,
475 u.s. 673 (1986)
Fahy v. Connecticut,
375 u.s. 85 (1963)
Melendez-Diaz v. Massachusetts,
129 S.Ct. 2527 (2009)
vi
49
25, 27, 28,
29, 30, 33, 37
17
25, 29, 44
49
42
19
46, 47, 49
17, 19
42-43
4, 47
50
23, 34
23
4, 25

Cases
Murray v. United States,
487 u.s. 533 (1988)
Spinelli v. United States,
393 u.s. 410 (1969)
United States v. De la Paz,
43 F.Supp.2d 370 S.D.N.Y (1999) .
United States v. Harrell,
737 F.2d 971 (11u Cir. 1984),
cert. denied, 469 U.S. 1164 (1985)
Rules and Statutes
G. L. c. 94C, § 32A (a)
G. L. c. 94C, § 32J
G. L. c. 111, § 113
G. L. c. 272, § 99
Massachusetts Declaration
Article 12
Massachusetts Evidence,
§ 8.2.3 (6th ed. 1994)
United State Constitution,
The Fifth Amendment
United State Constitution,
The Sixth Amendment
of Rights,
vii
36
17
49
42
2
2
15, 16, 44, 45,
47, 48, 50
4
22
46
23
22, 26, 33, 34, 35

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
MIDDLESEX COUNTY 2011 SITTING
NO. 10926
COMMONWEALTH OF MASSACHUSETTS,
v.
RAYMOND MENDES AND RONALD MENDES,
APPELLEE,
APPELLANTS.
ON APPEAL FROM AN ORDER AND JUDGMENTS OF
THE SOMERVILLE DISTRICT COURT
BRIEF FOR THE COMMONWEALTH
ISSUES PRESENTED
1. Did the motion judge improperly deny Ronald
Mendes' motion to suppress evidence seized pursuant to
a search warrant, where the affidavit sufficiently
established the veracity and the basis of knowledge of
two confidential informants and a nexus between the
illegal drugs and the defendants' residence?
2. Was the admission in evidence against Ronald
Mendes of the certificates of analysis for the drugs
harmless error, where the premise of Ronald Mendes'
entire defense was to concede that he possessed the

marijuana and cocaine but that the drugs were only
intended for his personal use?
3. Was a substantial risk of a miscarriage of
justice created, in the case against Raymond Mendes, by
the un-objected-to admission of evidence that persons
were calling the defendants' cell phones during the
execution of the search warrant and asking to buy
drugs, where that evidence was properly admitted, and
used only to prove that the telephones were
instrumentalities employed by the defendants to
facilitate the sale of drugs?
Prior Proceedings
STATEMENT OF THE CASE
After a search warrant was executed at the
defendants' home, Complaints issued from the Somerville
District Court on October 23, 2006, charging Raymond
Mendes (No. 0610 CR 2953) and Ronald Mendes (No. 0610
CR 2957) with crimes including possession of cocaine
with intent to distribute, in violation of G.L. c. 94C,
§. 32A(a) and a "school zone" violation under G.L. c.
94C, § 32J. (I.R.A. 1-13; RonM. R.A. 1-11; RayM. R.A.
1 Ronald Mendes has submitted an impounded record
appendix, containing material related to the search
warrant, which will be cited "(I .R.A. [page])". The
2

The defendants moved to suppress evidence, arguing
that the search warrant was not supported by probable
cause. (RonM. R.A. 15-30.) Justice Sabita Singh
denied the motion on July 2, 2007. (RonM. R.A. 12-14.)
The defendants were tried before Justice James L.
LaMothe, Jr. and a Jury of Six from March 26-28, 2008.
(RonM. R.A. 2-4; RayM. R.A. 3-6.) The jury convicted
both defendants on all counts. (RonM. R.A. 2-4; RayM.
R.A. 3-6.) Justice LaMothe sentenced Raymond Mendes to
1 day in the House of Correction on the possession with
intent to distribute a class B substance conviction and
two years in the House of Correction, ufrom and after,"
on the school zone conviction. (RayM. R.A. 3-6.)
Justice LaMothe sentenced Ronald Mendes to 30 days in
the House of Correction on the possession with intent
to distribute a class B substance conviction and two
years in the House of Correction, ufrom and after," on
the school zone conviction. (RonM. R.A. 2-4.) Justice
LaMothe placed the other convictions on file. (RonM.
Appendix that is attached the brief of Raymond Mendes
will be cited u (RayM. R.A. [page]) . " The Appendix that
is attached the brief of Ronald Mendes will be cited
"(RonM. R.A. [page]) . " The brief of Raymond Mendes
will be cited u (RayM.Br. [page])" and the brief of
Ronald Mendes will be cited "(RonM.Br. [page])." The
three volumes of trial transcript will be cited by
volume and page, e.g., u(Tr. 1: 87)".
3

R.A. 2-4; RayM. R.A. 3-6.) The defendants filed timely
notices of appeal. (RonM. R.A. 45; RayM. R.A. 7.)
While the appeals were pending, the United States
Supreme Court held that certificates of drug analysis,
admitted pursuant to G. L. c. 111, § 113, fell within
the "core class of testimonial statements" that trigger
confrontation clause protections. Melendez-Diaz v.
Massachusetts, 129 S.Ct. 2527, 2532 (2009), quoting
from Crawford v. Washington, 541 U.S. 36, 51 (2004).
On December 28, 2010, a divided panel of the
Appeals Court reversed. Commonwealth v. Mendes, 78
Mass. App. Ct. 474 (2010).
On March 2, 2011, this Honorable Court allowed the
Commonwealth's application for further appellate review.
Commonwealth v. Mendes, S.J.C. No. FAR-19456.
On March 9, 2011, the case was entered on the
docket of the Supreme Judicial Court.
Statement of the Facts
The Commonwealth's Case
On October 21, 2006, the defendants, Raymond and
Ronald Mendes, were living in the second floor
apartment located at 98 Albion Street in Somerville,
Massachusetts. (Tr. 1: 90-91, 95.) 98 Albion Street
consists of a three-apartment dwelling house, located
4

in a primarily residential neighborhood in Somerville.
(Tr. 1: 90.) The Albion Street Playground is located
in that neighborhood, directly across the street from
98 Albion Street. (Tr. 1: 91-92.) The Albion Street
Playground is maintained by the City of Somerville for
the use of the public. (Tr. 1: 92.) The park has a
basketball court, monkey bars and other apparatus,
where children play. (Tr. 1: 91-92, Tr. 2: 126.)
At approximately 7:00a.m., Somerville Police
Detective James Hyde along with other police officers,
executed a search warrant at the defendants' apartment.
(Tr. 1: 92-93.) Raymond Mendes was located near the
rear bedroom of the residence. (Tr. 1: 94.) Ronald
Mendes was located in his bedroom, with his girlfriend
Phanny Neov. (Tr. 1: 95-96.) petective Hyde provided
a copy of the search warrant to the defendants and
advised them of their Miranda rights. (Tr. 1: 96-97.)
Detective Hyde then asked the defendants if drugs were
located in the apartment. (Tr. 1: 97-98.) Raymond
Mendes later said that he had marijuana. (Tr. 1: 98.)
In Ronald Mendes' bedroom, the officers located a
bag containing 1.46 grams of cocaine on his bureau;
twelve bags of marijuana located in a shirt pocket in
his closet; $943 in his closet; $158 on top of a
5

that owe money" appeared. (Tr. 1: 153-154.) Both
notebooks contained lists of names with dollar amounts.
(See Tr. 2: 112-113 and Exhibits 22 & 23.)
During the execution of the search warrant,
Detective Hyde monitored the incoming telephone
activity on the defendants' cellular phones. (Tr. 1:
162.) Detective Hyde monitored approximately ten to
twelve calls to the defendants' phones. (Tr. 1: 163.)
On each call, the callers asked for either Ray or Ron.
(Tr. 1: 169.) Detective Hyde testified that all of the
ten to twelve callers alluded to purchasing drugs.
(Tr. 2: 43-44.) Several of these calls were very brief
and most of the callers did not identify themselves.
(Tr. 2: 43-45.) One call was from an individual named
Ed, who asked for Ray or Ron and then placed an order
.for $100 worth of cocaine. (Tr. 1: 163-164.)
Detective Hyde indicated that he could fulfill this
order and then directed Ed to the intersection of
Albion and Lowell Streets. (Tr. 1: 164.) When Ed
reached that location, he placed a second call to
Detective Hyde. (Tr. 1: 164.) Detective Hyde, in
turn, sent a marked cruiser over to speak with Ed.
(Tr. 1: 164.) Upon the cruiser approaching, Ed called
Detective Hyde again and told him not to meet him at
7

informants are used in drug investigations, and
described how search warrants are executed. (Tr. 2:
60-61, 63, 65.) He also testified that he himself had
worked undercover numerous times and that during his
drug investigations he had seized cocaine hundreds of
times and marijuana approximately one hundred times.
(Tr. 2: 60-61, 65.) Sergeant Montana also discussed
what street-level distribution was, described how hand
to hand drug transactions worked, and explained how
cellular phones are used to facilitate those
transactions. (Tr. 2: 65-68.) He went on to explain
what cocaine and marijuana look like, discussing the
various forms they come in, and then described how they
are ingested though various paraphernalia. (Tr. 2: 68-
70.) In discussing cocaine, Sergeant Montana testified
about the use of cutting agents, noting that they
increase a dealer's supply of cocaine, but that they
reduce the quality of the product. (Tr. 2: 69.)
Sergeant Montana also explained ways cocaine ahd
marijuana can be packaged for sale. ( Tr . 2 : 7 0 - 7 2 . )
Sergeant Montana was asked a hypothetical question
in which he was asked to assume facts that had been the
subject of testimony given by Detective Hyde and
Detective Dominic Pefine. (Tr. 2: 73-76.) Sergeant
9

137.) Mr. Chinn called Ronald Mendes on that date to
see if he could come over to play video games at their
apartment. (Tr. 2: 138.) The person who answered the
phone was pushy and asked Mr. Chinn what he wanted and
what he needed. (Tr. 2: 139.) Mr. Chinn testified
that he told him that he wanted to see if Ronald.Mendes
was home so he could come by and did not ask to buy
drugs, although Chinn did use marijuana and had smoked
marijuana with the defendants. (Tr. 2: 139-140, 142.)
Raymond Mendes called Doctor Alan Wartenberg, who
recounted his extensive training and experience in
addiction treatment. (Tr. 2: 146-152.) Doctor
Wartenberg testified concerning how much cocaine and/or
marijuana his patients reportedly consumed on a daily
basis. (Tr. 2: 152-153.) He testified that his
patients told him they used as much as an ounce of
marijuana or snorted up to an ounce of cocaine over a
twenty-four to forty-eight hour period. ( Tr. 2 : 15 3 . )
Wartenberg testified that he had also spoken with
patients about how they purchased cocaine and marijuana
and had been told that marijuana could be purchased one
joint at a time, in dime bags, and in quarter bags.
(Tr. 2: 154.) He testified that his patient/drug users
claimed they often bought cocaine by the "eight ball"
11

(an eighth of an·ounce of cocaine). (Tr. 2: 154.)
Doctor Wartenberg testified to his understanding
as to the difference between powder and crack cocaine
and how it is consumed. (Tr. 2: 154-156.) He
testified that the cocaine seized from Raymond Mendes'
bedroom was consistent with personal use and could be
ingested in a number of ways. (Tr. 2: 156-158.)
Raymond Mendes testified on his own behalf and
said he had been living in the second floor apartment
at 98 Albion Street with his brother Ronald, Ronald's
girlfriend, and their friend Mike, paying a rent of
approximately $950-$1,000 per month. (Tr. 2: 181-182.)
The defendants were the only occupants of the apartment
who contributed to the rent and they paid.with either a
money order or cash. (Tr. 2: 182.) The gas and
electric for the third floor apartment was running off
the defendants' line, so the third floor residents gave
the defendants money for the utilities each month.
(Tr. 2: 183.) Raymond Mendes testified that he stored
this money under his bed or in his closet. (Tr. 2:
183-184.) He testified the money seized from his
dresser was for rent. (Tr. 2: 215.)
Raymond Mendes also testified that he had three
sons. (Tr. 2: 187.) His son Rick was into the music
12

scene and frequently recorded music at a recording
studio in Everett, Massachusetts. (Tr. 2: 188-189.)
He asserted that the notebooks seized by Detective Hyde
were not drug ledgers, but rather were used to keep
track of the money the defendants' friends donated to
them to buy studio time for Rick (:i,.e., "Rick the
Ruler"). (Tr. 2: 190-191, 193.) Raymond Mendes
claimed that he hosted parties to make a "sales pitch"
to donate money for Rick's studio time. (Tr. 2: 191.)
When one of Raymond's friends promised him money for
studio time, he would write the name and the money that
person owed him in the notebooks. (Tr. 2: 192, 194.)
Raymond Mendes also testified that he purchased one
ounce of marijuana per week, and that he would roll up
the marijuana in a "blunt" cigar, sprinkle cocaine on
top, and smoke it. (Tr. 2: 195.)
Ronald Mendes testified on his own behalf as well,
and claimed that he was working for his uncle at "You
Call, We Haul," where he was paid $12 an hour; he
claimed that he would cash his check when paid and hide
the money in various places in his bedroom. (Tr. 2:
219-221.) He, too, testified that he smoked marijuana,
in "blunts" like his brother, every day, upwards of
four times a day, and used cocaine three times a week.
13

etween the defendants' drug dealing activity and their
residence. (pages 16-21) .
II. The legal standards are set out. (pages 22-
24) This Court has consistently applied all of the
"Degraca factors" to determine whether a Melendez-Diaz
error was harmless, including "the premise of the
defense" factor and the "whether the erroneously
admitted evidence was merely cumulative of properiy
admitted evidence" factor. (pages 24-27) The
underlying claim of prejudice associated with "tainted
evidence," which Ronald Mendes now argues requires that
no evidence admitted in the defense case-in-chief be
considered in the harmless error calculus, is already
built into our traditional harmless error
jurisprudence. (pages 27-38) Applying those factors,
the admission of the certificates of analysis for the
drugs was harmless error. (pages 38-41)
III. Evidence concerning the content of phone
calls that were placed to the defendants' cellular
phones did not create a substantial risk of a
miscarriage of justice or violate the wiretap statute,
G. L. c. 272, § 99. (pages 43-46) The testimony was
not offered for the truth of the statements that were
made by the callers, but to establish that the
15

See Commonwealth v. Upton, 394 Mass. 363, 369-377
(1985). "Where an unnamed informant's tip is relied on
by the police as supplying probable cause to arrest and
to search, art. 14 requires that the information
satisfy the two-pronged standard set forth in Aguilar
v. Texas, 378 U.S. 108 (1964), and Spinelli v. United
States, 393 U.S. 410 (1969) ." Commonwealth v. Welch,
4 2 o Mass . 6 4 6 , 6 50 . ( 19 9 5 ) . "As a rule, the
Commonwealth must demonstrate some of the underlying
circumstances from which [a] the informant gleaned his
information [the "basis of knowledge" test] , and [b]
the law enforcement officials could have concluded the
informant was credible or reliable [the "veracity"
test]." Id. Corroboration can compensate for any
deficiencies in either or both prongs of the Aquilar­
Spinelli standard. Commonwealth v. Cast, 407 Mass.
891, 899 (1990). The motion judge's findings "are
binding in the absence of clear error" and this Court
will "view, with particular respect, the conclusions of
law which are based on them." Welch, 420 Mass. at 651.
The veracity test may be satisfied in a number of
ways, including if: (1) the informant has previously
provided information leading to arrests and subsequent
convictions, Commonwealth v. Byfield, 413 Mass. 426,
17

431 (1992), or the informant has provided information
which has led to an arrest and the seizure of
controlled substances, Commonwealth v. Perez-Baez, 410
Mass. 43, 45-46 (1991), (2) the informant's information
was confirmed through police observed controlled buys
with the target, Commonwealth v. O'Day, 440 Mass. 296,
301(2003), (3) the informant provided admissions
against his or her own penal interests, see
Commonwealth v. Parapar, 404 Mass. 319, 322 (1989), (4)
the informant's "identity" and "whereabouts" are known,
Commonwealth v. Alfonso A., 438 Mass. 372, 375 (2003),
(5) there are multiple informants providing mutually
corroborating information corresponding in significant
detail as to methods of operation and location of the
drug trafficking base, Commonwealth v. Ilges, 64 Mass.
App. Ct. at 503, 509-510 (2005), (6) the informant
provided significant detail as to both the identity of
the seller and the drug selling operation, Alfonso A.,
438 Mass. at 374-375, or (7) the police made
independent observations confirming the informant's
information, Commonwealth v. Germain, 396 Mass. 413,
418 (1985).
Here, as the motion judge concluded, (RayM. R.A.
12-13), the veracity of informant "A" ("CSA") was well-
18

established. Additionally, as can be seen in the
impounded record appendix, CSA's identity and place of
residence were both known to Detective Hyde at the time
he drafted the supporting affidavit. (I.R.A. 6.) See
Welch, 420 Mass. at 651 (reliability. "may be bolstered
by the fact that the police know the informant's
identity and address or telephone number and would be
able to contact him or her"). With respect to the
veracity of the second informant "B" ("CSB"), Detective
Hyde knew this person's identity and residence, (I.R.A.
6,) and that CSB had previously provided information
which had led to an arrest and narcotics prosecution.
(I.R.A. 6.) See Parapar, 404 Mass. at 322.
CSA provided Detective Hyde with very detailed
information, based upon first hand knowledge, about the
defendants' drug activity, (see I.R.A. 6-7), which in
turn was well-corroborated, by similar information
provided by CSB, (see I.R.A. 8), by police observation,
and by CSB's two controlled buys with the defendants,
both within seven days of the application for the
search warrant. (I.R.A. 6-8). See Commonwealth v.
Warren, 418 Mass. 86, 89 (1994).
All of this was sufficient to establish probable
cause. Alfonso A., 438 Mass. at 376; Commonwealth v.
19

Blake, 413 Mass. 823, 828 (1992).
Nexus
The search warrant application also provided a
sufficient nexus between drug activity and the Mendes
apartment. The legal standards here are also well­
understood. Sufficient nexus between the crime and the
location to be searched may be found in the type of
crime, the nature of the items sought, the suspect's
ability to conceal such items, and normal inferences as
to where a defendant would hide these items.
Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983).
Here, the affidavit stated that CSA personally
observed the defendants conduct over twenty cocaine and
marijuana sales within their apartment. (I.R.A. 6.)
CSA saw that the defendants weighed and packaged the
cocaine within the confines of their residence and
provided information about where a digital scale was
stored. (I.R.A. 7.) CSA also gave information about
where the drugs would be found within the home, stating
that Raymond Mendes stored cocaine in his bedroom
closet, that Ronald Mendes stored marijuana inside of
his bedroom, and that a large amount of cocaine was in
the basement. (I.R.A. 6-7.) This information,
together with the two police-observed controlled buys
20

with CSB, shows an indisputable nexus between the
defendants' drug dealing activity and their residence.
Therefore, Commonwealth v. Pina, 453 Mass. 438
(2009), the case principally relied upon by Ronald
Mendes (see RonM.Br. 47-48), is inapposite. In Pina,
"the only particularized information contained in the
affidavit connecting the defendant's observed drug
activity with the apartment in which he lived was a
single observation of the defendant driving from the
apartment to a location where he sold an unspecified
quantity of cocaine to the informant." Pina, 453 Mass.
at 442. But in this case, there was far more evidence
that drugs were being stored in the home. There were
not only the direct observations of CSA but also CSB's
statements about his prior drug purchases from the
defendants, close by their residence, which were later
confirmed by two controlled buys where the defendants
left the apartment and went directly to the arranged
location. (I.R.A .. 7-8.) See Blake, 413 Mass. at 829.
Accordingly, Ronald Mendes's motion to suppress
was properly denied.
21

Fifth Amendment violation can be harmless if "the
beneficiary of a constitutional error ... prove[s]
beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained." The Court
expressed the harmless standard as whether there is "a
reasonable possibility that the evidence complained of
might have contributed to the conviction." Id., at 23,
quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)
Almost twenty years later, in Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986), the Supreme Court
affirmed that "the constitutionally improper denial of
a defendant's opportunity to impeach a witness for
bias, like other Confrontation Clause errors, is
subject to Chapman harmless-error analysis" and set out
certain "factors" that might be applicable in a denial
of the right to impeach for bias case:
Whether such an error is harmless in a
particular case depends upon a host of
factors, all readily accessible to reviewing
courts. These factors include the importance
of the witness' testimony in the
prosecution's case, whether the testimony was
cumulative, the presence or absence of
evidence corroborating or contradicting the
testimony of the witness on material points,
the extent of cross-examination otherwise
permitted, and, of course, the overall
strength of the prosecution's case.
VanArsdall, 475 U.S. at 684.
23

Three years before Van Arsdall was decided, this
Honorable Court promulgated a similar, multi-factored,
approach to determining whether constitutional error is
harmless beyond a reasonable doubt. See Commonwealth­
v. Mahdi, 388 Mass. 679, 696-697 (1983) (stating five
factors). More recently, in Commonwealth v. Degraca,
447 Mass. 546, 553 (2006), the Court "added" to the
five factors stated in Mahdi a sixth, well-accepted and
widely applied factor: "the importance of the evidence
in the prosecution's case[.]" See Commonwealth v.
McNulty, 458 Mass. 305, 318-320 (2010) (citing to cases
where the independent, "overwhelming," evidence factor
has been employed) .
As Chief Justice Rapoza recently had occasion to
observe, "Chapman remains the touchstone for harmless
error analysis." Commonwealth v. Morales, 76 Mass.
App. Ct. 663, 666 (2010). The "essential" question in
harmless error review -- both under federal and state
law -- has always been, and continues to be, whether
the error was harmless beyond a reasonable doubt under
the Chapman standard, i.e., "whether the error had, or
might have had, an effect on the jury and whether the
error contributed to or might have contributed to the
verdicts." Commonwealth v. Perrot, 407 Mass. 539, 549
24

This test has been applied repeatedly in Melendez­
Diaz and similar confrontation errors. See, e.g.,
Commonwealth v. Depina, 456 Mass. 238, 248 (2010)
(ballistics certificate, reiterating that the Degraca
factors are to be applied to "the totality of the
record before us, weighing the properly admitted.and
the improperly admitted evidence together .... ");
Commonwealth v. Muniz, 456 Mass. 166, 169 (2010)
(ballistics and drug certificates; same).
This Honorable Court has had occasion to review,
under the harmless error standard, the degree of harm
to the defendant that was occasioned by a variety of
Sixth Amendment violations. In many such cases, this
Court has found the "premise of the defense"
Mahdi/Degraca factor very helpful in evaluating just
how "harmful" to the defense the erroneously admitted
piece evidence really was. See, e.g., McNulty, 458
Mass. at 320-321 (significance of the inadmissible
evidence obtained as a fruit of Mavredakis violation,
as it bore on the "premise of the defense," was outcome
determinative). Compare Commonwealth·v. Durand, 457
Mass. 574, 586-588 (2010) (where the substitute medical
examiner testified to the underlying factual findings
contained in the autopsy report prepared by a different
26

medical examiner, the "premise of the defense" factor
was crucial because the cause of death was "very much a
disputed issue") with Commonwealth v. Diaz, 453 Mass.
266, 274 (2009) (inadmissible post-Miranda denial of
accusation was harmless where "the premise of the
defense was misidentification.").
To conclude, this Honorable Court has consistently
taught that appellate courts should employ all of the
Degraca/Mahdi factors in determining harmless error.
This approach to constitutional harmless error analysis
has been oft-tested and not found wanting. The multi­
factor approach, by its nature, is adaptable to myriad
factual circumstances in such a way as to promote sound
results in particular cases. There is no reason to
stray from our well-established legal standards in the
context of reviewing Melendez-Diaz errors. The Chapman
standard calls for a reviewing Court to examine "the
totality of the record before us, weighing the properly
admitted and the improperly admitted evidence
together," and in light of the entire record to
determine whether "we are satisfied beyond a reasonable
doubt that the tainted evidence did not have an effect
on the jury and did not contribute to the jury's
verdicts." Tyree, 455 Mass. at 701. The Mahdi/Degraca
27

factors call for the reviewing Court, in light of the
entire record, to consider many potentially pertinent
factors, including "the premise of the defense" -and
"whether the erroneously admitted evidence was merely
cumulative of properly admitted evidence." Id.
3. A Reviewing Court Can Always Consider
Whether The Strength Of The
Commonwealth's Case "Radiates From A
Core Of Tainted Evidence."
Ronald Mendes argues, as the majority of the panel
of the Appeals Court in this case held below, that
because the certificates of analysis were relevant to
an element of the offense, only evidence that was
admitted in the Commonwealth's case in chief should be
considered in the harmless error analysis. (RonM.Br.
36-41.) This approach is erroneous. This Court has
never adopted any such approach, which improperly
conflates harmless error analysis with the standard for
ruling on a motion for required finding of not guilty.
We know that this approach is erroneous, because
under the Chapman standard, as this Court has just
recently reiterated, the "essential question" has
always been "whether the error had, or might have had,
an effect on the tact finder and whether the error
contributed to or might have contributed to the
28

findings of guilty." Vasquez, 456 Mass. at 360,
citations omitted, emphasis added. The "essential
question" has never been whether the error might have
had an effect on the judge in ruling on a motion for
required finding of not guilty.
Moreover, the underlying claim of prejudice that
Ronald Mendes' erroneous approach is calculated to
address is perfectly capable of being addressed by
indeed is built "into -- our traditional harmless error
jurisprudence.
This Honorable Court has repeatedly taught, in
particular where the government has obtained evidence
unlawfully such that the exclusionary rule is invoked
to "deter future unlawful police conduct," Commonwealth
v. Brandwein, 435 Mass. 623, 632 (2002), or to protect
"judicial integrity," Commonwealth v. Brown, 456 Mass.
708, 715 (2010), that a reviewing court should pay
particular attention to whether "the over-all strength
of the Commonwealth's case radiates from a core of
tainted evidence." Tyree, 455 Mass. at 702 (evidence
seized during the illegal initial entry and search of
defendant's residence and his shoes, which were seized
immediately thereafter at the police station, should
have been suppressed), quoting from Degraca, 447 Mass.
29

at 554, If the overall strength of the Commonwealth's
case "radiates" from evidence that should have been
suppressed, that is a special consideration that would
factor against a finding of harmless error. Id. The
"taint" of primary illegality can extend broadly, and
has even been applied to evidence that was admitted in
the defendant's case in chief. See, e.g., Commonwealth
v. Charras, 443 Mass. 752, 765-767, cert. denied, 546
U.S. 870 (2005) (defendant's decision to testify on his
own behalf was itself "tainted" because it was forced
on him by a police illegality that should have resulted
in invocation of the exclusionary principles and
suppression of key Commonwealth evidence) .
But no such far reaching "taint" was associated
with the confrontation clause error in this case. Put
otherwise, Ronald Mendes's decision to testify did not
"radiate" from the un-objected-to admission of the
certificates of analysis in this case. Accordingly,
the "overall strength of the Commonwealth's case,"
viewed in relation to the sixth Degraca factor ("the
weight or quantum of evidence of guilt'') does not
"radiate" from the taint associated with any initial
illegality.
30

Ronald Mendes is in error when he contends, based
upon the improper conflation of harmless error analysis
with the question of whether the Commonwealth has
offered sufficient evidence to survive a motion for
required finding of not guilty, that reviewing courts
like this court should not even consider the evidence
as to the composition of the substance that was
admitted during the defendant's case in chief, and
should not consider even the defendant's own testimony.
(See RonM.Br. 39). Ronald Mendes contends, in
substance, that this is because "it is impossible to
say" (supposedly), on the bare appellate record,
"whether the defendants would have testified ... had the
certificates been properly admitted through the
analysts' testimony." (See RonM.Br. 39).
This is not the correct legal standard. First of
all, this approach would effectively jettison at least
two of the six Degraca factors: "the premise of the
defense" and "whether the erroneously admitt'ed evidence
was merely cumulative of properly admitted evidence."
Second, it would create an approach that would
establish a virtually insurmountable burden on the
Commonwealth. It would only be in a case like this
where such a burden can be carried, a case where
31

counsel for Ronald Mendes actually stated in·his
opening statement, "My client is going to concede that
he had marijuana in his house and had cocaine in his
house, but those were for his own personal use .... " (Tr.
The bare appellate record will only rarely
afford a basis for concluding - by any standard -- that
a defendant's decision to testify was not "in response
to" the way that certain facts were proven in the
Commonwealth's case in chief. Indeed, in general, it
stands to reason that appellate courts, in any direct
appeal, will find it exceedingly difficult to determine
why a defendant chose to testify, because that decision
is made (and should be made) under the protection of
the attorney-client privilege. The defendant's
approach is simply unworkable and unfair.
But mainly, there is just nb need to abandon our
traditional harmless error analysis to deal with
Melendez-Diaz errors. This Honorable Court applied our
traditional harmless error analysis, and the Degraca
factors (including "the premise of the defense" factor
and "whether the erroneously admitted evidence was
merely cumulative of properly admitted evidence"
factor); in all sorts of contexts. This Court has had
no problem applying the "premise of the defense"
32

in the case of a violation of a defendant's Sixth
Amendment right to counsel that should have led to
suppression, this Honorable Court did not hesitate to
reiterate that the state and federal legal standard
requires that it is "the record of the entire trial"
(including the testimony offered by the defendant in
his case in chief) that should be reviewed.
Commonwealth v. Howard, 446 Mass. 563, 570-571 (2006)
("The admission of testimony obtained in violation of
[the] defendant's [right to counsel] will not amount to
reversible error 'if the reviewing court may
confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable
doubt."'), quoting Commonwealth v. Miles, 420 Mass. 67,
73 (1995) and VanArsdall, 475 U.S. at 68'1 (emphasis
added) . The only exception would be where the Sixth
Amendment violation "contaminated" the "entire criminal
proceeding." Howard, 446 Mass. at 570.
No such "contamination" appears here. This is not
surprising, because a-Melendez-Diaz error by its nature
is not the kind of error that should structurally
"contaminate" an entire prosecution. In Melendez-Diaz
error cases, it is worth noting, the Court is not even
faced with the kind of error that leads to suppression.
34

This circumstance fits comfortably within the
contours of our law concerning structural error.
Compare Howard, 446 Mass. at 570 ("Where the error
caused by the Sixth Amendment violation is limited to
the erroneous admission of particular evidence at
trial, as is the case here, the harmless error analysis
applies."), internal quotes and citations omitted, with
Commonwealth v. Cohen (No. 1), 456 Mass. 94, lOS (2010)
(the Sixth Amendment right to a public trial "is a
structural error and not susceptible to harmless error
analysis.") See generally Chapman v. California, 386
U.S. at 23 & n.8 (discussing the kinds of structural
error that defy normal harmless error analysis) . In
Howard, for example, this Honorable Court reviewed the
Sixth Amendment right to counsel violation -- a
violation which should have led to suppression -- in
light of the record of the entire trial, considering
the defendant's own testimony and other evidence
offered by the defendant, and concluded that the error
was harmless beyond a reasonable doubt.
571.
See id., at
Therefore, it can be seen that these sorts of
cases do not tend to present a circumstance such as was
presented in Commonwealth v. Charras, 443 Mass. at 765-
35

767 (2005), where the defendant's decision to testify
was forced on him by a police illegality that should
have resulted in invocation of the exclusionary
principles. Suppression extends to the "fruits" of the
police illegality, such as "derivative evidence, both
tangible and testimonial, that is the product of the
primary evidence, or that is otherwise acquired as an
indirect result of the unlawful search, up to the point
at which the connection with the unlawful search
becomes 'so attenuated as to dissipate the taint.'"
Murray v. United States, 487 U.S. 533, 536-537 (1988)
(citations omitted) . In Charras, the "taint"
associated with the police illegality extended far and
even the defendant's own testimony was considered to be
a "derivative" of it, under the special circumstances
of that case. Charras, 443 Mass. at 766.
This case is not like Charras. The certificates
of analysis would have been admissible in evidence if
the analyst had appeared in court. The certificates
were not subject to suppression and there is no
exclusionary principle that would bar its admission at
a retrial. The evidence that was illegally seized in
Charras and which forced the defendant to have to
testify was inadmissible because it had been illegally
36

seized. But the testimony of the defendants in Mendes
was never the "fruit" of any primary illegality
warranting invocation of exclusionary principles. The
defendant in this case was not placed, by illegal
conduct that should have led to suppression and ought
to be deterred, in the same "Catch-22" position as the
defendant in Charras.
To conclude, there is no reason why the normal
harmless error analysis, in which the Degraca factors
are applied to "the totality of the record before us,
weighing the properly admitted and the improperly
admitted evidence together," Tyree, 455 Mass. at 701,
should not continue to be undertaken in reviewing
Melendez-Diaz issues for harmless error.
B. Applying the Degraca/Mahdi Factors, The
Record Demonstrates Beyond A Reasonable
Doubt That The Admission Of The
Certificate of Analysis Was Harmless
Error As To Ronald Mendes.
In light of the Degraca factors, in particular in
consideration of "the premise of the defense" and
"whether the erroneously admitted evidence was merely
cumulative of properly admitted evidence," the
Melendez-Diaz error was harmless as to Ronald Mendes.
The first Degraca factor, "the importance of the
evidence," it is true that the certificates were part
37

of the Commonwealth's case and were admitted in
evidence along with the drugs. But the trial was
"about" whether the defendant was guilty of possession
with intent to distribute and the most important
evidence was the strong circumstantial evidence of
intent·to distribute. Inside Ronald Mendes's bedroom
was found: (1) a clear plastic bag, that Ronald Mendes
testified contained cocaine, on the bureau; (2) twelve
clear plastic bags containing marijuana in the pocket
of a shirt inside his.closet; (3) $943 in his closet;
(4) $158 on top of a television set; and (4) a cellular
phone. (Tr. 1: 103-104; 106-107, 112-116, 119-125, 127,
128-129, 138.) In the living room 1 two more bags of
marijuana were inside Ronald's jacket. (Tr. 1: 131 1
134; Tr. 2: 247-248.) Inside Raymond's bedroom were:
(1) a plastic bag containing cocaine and two tablets of
ecstasy on top of his dresser; (2) $240 in one dresser
drawer and $500 inside another drawer; (3) a bag of
marijuana 1
$420, and a 100-gram weight associated with
a triple beam scale located inside a black box under
the bed; and (4) a cell phone that rang throughout the
execution of the warrant. (Tr. 1: 125, 134, 138, 139,
140-148, 150-151, 186-187, 190-192, 198; Tr. 2: 36-38 1
42, 53-54.)
38

client is going to concede that he had marijuana in his
house and had cocaine in his house, but those were for
his own personal use .... " (Tr. 1, 77.)
It does not matter that the defendant's
"concession" does not qualify as binding "stipulation"
for all legal purposes. See Commonwealth v. Ramsey, 79
Mass. App. Ct. 724, 731-733 (2011) (Grasso, J.,
(concurring in part and dissenting in part). The
defendant's "concession 11 as to the composition of the
substances is a legitimate "factor," under Degraca and
Mahdi, that may be considered in the harmless error
analysis, because it demonstrates that the certificates
bore no relation to the premise of the defense. This,
too, is a circumstance that cuts in favor of a
determination that the admission of the certificates of
analysis was harmless beyond a reasonable doubt.
Degraca, 447 Mass. at 555; Mahdi, 388 Mass. at 696.
As to the third and fourth Degraca factors, "who
introduced the issue at trial" and "the frequency of
the reference," obviously the Commonwealth introduced
the certificates but not surprisingly, given the
premise of the defense, the unimportance of the
certificates to what was really being tried, and the
defendants' testimony, the prosecutor never mentioned
40

He acknowledged "the cocaine that was in that room
[i.e., the living room] [was his] as well."
247-248.)
(Tr. 2:
Ronald Mendes further testified concerning the
effects of "marijuana" and the effects of "coke" and
testified that he liked marijuana "better than coke."
(Tr. 2: 239.) However, he testified that he could
obtain a different "high" than what he got from smoking
plain marijuana when he would sprinkle "cocaine a
little bit on the weed" and that he would receive from
the combination of marijuana and cocaine "more than a
regular high." (Tr. 2:246.) See Commonwealth v.
Cantres, 405 Mass. 238, 246, 247 (1989) ("It is enough
that the witness have familiarity based on prior use or
sale"... [for] 'identification based on past use coupled
with present observation of the substance at hand will
suffice to establish the illicit nature of a suspected
substance.'"), quoting from United States v. Harrell,
737 F.2d 971, 987-979 (11th Cir. 1984), cert. denied,
469 U.S. 1164 (1985); Commonwealth v. Villatoro, 76
Mass. App. Ct. 645, 652-654 (2010) (defendant's history
of marijuana use, allowed inference that he could
identify marijuana), cited in Commonwealth v.
42

Westbrooks, 79 Mass. App. Ct. 417, 423 (2011). See
also Commonwealth v. Dawson, 399 Mass. 456, 467 (1987).
Ronald Mendes further testified that he purchased
the twelve dime bags, rather than one package from this
"E" person because that was the only amount that "E"
sold. (Tr. 2: 226.) . He testified that the two bags of
marijuana located in the jacket in the living room were
also his .. (Tr. 2: 226-228.) The quality of the bags
of marijuana found by police was similar, he testified,
to what he "smoked every day." (Tr. 2:239.)
Ronald Mendes also offered expert testimony on the
subject of marijuana and cocaine addiction, calling Dr.
Alan Wartenburg, (see Tr. 2: 146-158,) testimony that
tended to corroborate Ronald Mendes's testimony
concerning the composition of the substances that
police found in his bedroom and in his living room as
being cocaine and marijuana.
Based upon this evidence, the certificates of
analysis was "merely cumulative of properly admitted
evidence," Degraca, 447 Mass. at 555; Mahdi, 388 Mass.
at 696, that established the composition of the
substances found in Ronald Mendes's bedroom and in his
living room as being "cocaine" and "marijuana." The
evidence .that the substances were cocaine and
43

marijuana, as admitted by the defendant and
corroborated by the circumstantial evidence, was
overwhelming. Based upon this kind of evidence, it is
beyond a reasonable doubt that the certificates of
analysis had no "effect on the jury" and did not
contribute "to the verdicts." Vasquez, 456 Mass. at
360. Their impact on the fact finder was only
cumulative of other powerful evidence.
Accordingly, the admission of the certificates of
analysis was harmless beyond a reasonable doubt.
III. THERE WAS NO SUBSTANTIAL RISK OF A
MISCARRIAGE OF JUSTICE IN THE EVIDENCE
CONCERNING CALLS PLACED TO RAYMOND
MENDES'S CELL PHONE.
Raymond Mendes argues (although Ronald Mendes does
not advance this argument) that Detective Hyde's
testimony concerning calls placed to the cellular
telephones was inadmissible hearsay (RayM.Br. 16-25)
and violated his rights of confrontation (RayM.Br. 25-
28). Rarmond Mendes further argues that Hyde's
listening to the incoming phone calls violated G. L. c.
272, § 99, and created a substantial risk of a
miscarriage of justice. (See RayM.Br. 28-32.)
These arguments of Raymond Mendes are all
meritless. The testimony was not offered for the truth
44

of the statements made by the callers. It was to
establish that the telephones were instrumentalities
employed by the defendants to facilitate the sale of
drugs. The way they were using the telephones, as the
prosecutor argued in summation, was relevant to prove
the defendants' intent to distribute the drugs found in
the apartment. Therefore, because this evidence was
not hearsay, Raymond Mendes's confrontation rights were
not implicated. Moreover, there was no violation of
G. L. c. 272, § 99, because Detective Hyde did not
either "secretly hearn or "secretly recordn the phone
call "through the use of any intercepting device," as
the statute prohibits.
Although there was a motion in limine filed and
discussion about this issue before trial, (see Tr.
1:18-29) there was no contemporaneous objection or
request for a limiting instruction. (Tr. 1: 163-164,
166, 169.) Commonwealth v. Little, 453 Mass. 766, 773
(2009) (a motion in limine is "insufficient to preserve
appellate rights unless there is an objection at
trialn). Ronald Mendes actually went into this issue
himself, on cross-examination. (Tr. 2: 18.)
Regardless, no substantial risk of a miscarriage of
justice appears, because there was no error.
45

A. Detective Hyde's Testimony Concerning
The Calls Placed To The Cellular Phones
Was Not Hearsay And Did Not Implicate
Confrontation Clause Protections.
Even if an objection had been lodged, it would
have been overruled, because the evidence was not
hearsay. Commonwealth v. Washington, 39 Mass. App. Ct.
195, 199-200 (1995) (in a prosecution for trafficking,
police officer's testimony as to conversations with
callers seeking to buy drugs was admissible
"nonhearsay" because such conversations bear an
"indicia of reliability, and show the 'actual use [of
the beeper] for drug transactions"), internal citation
omitted. These types of conversations are "admitted in
evidence to prove the nature of a place or thing
associated with the conversation." Washington, 39
Mass. App. Ct. at 200, citing Liacos et al.,
Massachusetts Evidence, § 8.2.3 (6th ed. 1994). Cf.
Commonwealth v. Mullane, 445 Mass. 702, 711 (2006)
(conversations between undercover agent and masseuse
regarding "extras" not hearsay when used to prove the
establishment was one of ill fame) .
The testimony about the two calls is markedly
similar to the calls received in Washington, 39 Mass.
App. Ct. at 199-200, and it was both offered and used
for the sole purpose of showing that the two cellular
46

phones were used as instrumentalities to facilitate the
defendants' sale of cocaine and marijuana. (See Tr. 1:
18, 27-29; Tr. 3: 33-34.) The fact that the defendants
possessed implements of the drug trade was relevant to
both corroborate each defendant's individual ownership
of the seized drugs, Commonwealth v. Johnson, 42 Mass.
App. Ct. 948, 950 (1997), and to show intent to
distribute. Commonwealth v. Pena, 40 Mass. App. Ct.
905, 906 (1996); Washington, 39 Mass. App. Ct at 195.
The prosecutor only used this evidence for a non-
hearsay, purpose: to show that the cellular phones were
being used facilitate the defendants' sale of cocaine
and marijuana. (See Tr. 3: 33-34.) This testimony
thus did not implicate confrontation protections.
Crawford v. Washington, 541 U.S. 36, 59, n.9 (2004);
Commonwealth v. Brum, 438 Mass. 103, 116 (2002).
B. There Was No Violation Of The Wiretap
Statute.
G. L. c. 272, § 99 makes illegal the "willful[]
interception ... of any wire or oral communication."
G. L. c. 272, § 99(C) (1). An "interception" means to:
. secretly hear, secretly record, or aid
another to secretly hear or record the contents of
any wire or oral communication through the use of
any intercepting device by any person other than a
person given prior authority by all parties to
such communication .
47

G. L. c. 272, § 99(B) (4).
Detective Hyde's conversations with prospective
drug purchasers on the defendants' cell phones did not
violate § 99 because Hyde did not "secretly hear" any
communications. G. L. c. 272, § 99(B) (4). A review of
the relevant portions of the transcript demonstrates
that Detective Hyde answered approximately ten to
twelve calls made by prospective drug purchasers to the
defendant's cellular'phones and spoke with the callers.
(Tr. I: 162-170; Tr. II: 30-34, 43-45). Nothing was
recorded and no third-party listened in on the
conversations. (Tr. I: 162-170; Tr. II: 30-34, 43-45) .
Hyde did not "secretly hear" any conversations,
for he was a party to those conversations. Contrast
Commonwealth v. Panetti, 406 Mass. 230, 232-234 (1989).
The fact that Detective Hyde did not identify himself
does not mean that he was "secretly" hearing anything
any more than he was creating an "interception" under
the statute. G. L. c. 272, § 99 (B) (4). See
Commonwealth v. Jarabek, 384 Mass. 293, 298 (1981)
("What the Legislature deemed offensive to individual
privacy, and thus sought to regulate, was the secret
interception of communications, and not other uses of
subterfuge in the course of criminal investigations.").
48

In factually analogous cases, the Appeals Court
has assumed that there is no "secret" hearing in a two­
party, unrecorded conversation. See Commonwealth v.
DePina, 75 Mass. App. Ct, 842, 850 (2009) (no error
where police officer seized defendant's cellular phone
during the execution of a search warrant, answered an
incoming call to the phone, and testified at trial that
the caller expressed a desire to purchase cocaine) ;
Commonwealth v. Washington, 39 Mass. App. Ct. 195, 199-
201 (1995) (no error where police officer seized
arrestee's beeper, called number shown on the beeper
the following day, and testified at trial to the
contents of the conversation) .
Additionally, a telephone is not an "intercepting
device" under the statute. See Commonwealth v.
Todisco, 363 Mass. 445, 452 (1973) ("The clear and
obvious legislative intent [behind the wiretap act] was
to prevent the illegal use of devices external and
extraneous to the regular telephone equipment."). See
also Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527-
532 (statute not violated by police officer listening
in on an extension phone). Cf. United States v. De la
Paz, 43 F.Supp.2d 370, 375-376 S.D.N.Y (1999) (no Fourth
Amendment violation where FBI agents answer arrestee's
49

cellular telephone during booking without a warrant);
Commonwealth v. Eason, 427 Mass. 595, 596-601
(1998) (wiretap statute not violated by officer
listening on extension phone); Crosland v. Horgan, 401
Mass. 271, 274 (1987) (telephone was not an
"intercepting device'' under G.L. c. 272, § 99 [B] [3]).
CONCLUSION
For all the foregoing reasons, the judgments
should be affirmed.
DATED: September 30, 2011
Respectfully Submitted
For the Commonwealth,
GERARD T. LEONE, JR. _
DISTRICT ATTORNEY
Assistant District Attorney
Middlesex District Attorney's Office
15 Commonwealth Avenue.
Woburn, MA 01801
Tel: (781) 897-6831
BBO # 553352
50