463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

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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
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 38 and 39: at 554, If the overall strength of
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: Westbrooks, 79 Mass. App. Ct. 417,
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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