463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

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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
Page 1 and 2: COMMONWEALTH OF .MASSACHUSETTS SUPR
Page 3 and 4: B. Applying the Degraca/Mahdi Facto
Page 5 and 6: Cases Commonwealth v. Degraca, 447
Page 7 and 8: Cases Commonwealth v. Todisco, 363
Page 9 and 10: COMMONWEALTH OF MASSACHUSETTS SUPRE
Page 11 and 12: The defendants moved to suppress ev
Page 13: in a primarily residential neighbor
Page 17: informants are used in drug investi
Page 20 and 21: (an eighth of an·ounce of cocaine)
Page 23: etween the defendants' drug dealing
Page 26 and 27: 431 (1992), or the informant has pr
Page 28 and 29: Blake, 413 Mass. 823, 828 (1992). N
Page 31 and 32: Fifth Amendment violation can be ha
Page 34 and 35: This test has been applied repeated
Page 36 and 37: factors call for the reviewing Cour
Page 40: counsel for Ronald Mendes actually
Page 43 and 44: This circumstance fits comfortably
Page 45 and 46: seized. But the testimony of the de
Page 48: client is going to concede that he
Page 51 and 52: Westbrooks, 79 Mass. App. Ct. 417,
Page 53 and 54: of the statements made by the calle
Page 55 and 56: phones were used as instrumentaliti
Page 57 and 58: In factually analogous cases, the A

463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

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