FECTEAU, J.
The defendant, Jack Westbrooks, appeals from convictions of four violations of the controlled substances act
Background.
The defendant asked the officers not to ransack his apartment and agreed to give the police the items he thought they were looking for, whereupon he began to retrieve a number of Ziploc bags containing different substances and handed them to Detective Kelley. First, he retrieved a Ziploc bag from a kitchen cabinet that contained a "green leafy substance," which Detective Kelley "believed to be marijuana." The defendant then retrieved a second Ziploc bag of marijuana from a kitchen drawer. Next, the defendant retrieved what Kelley said were "three bags of cocaine, and then two additional bags with pills" from a small vest on the couch. One of the bags had seventy-two pills, and the other had thirty-eight pills.
Sergeant Durant found ten orange suboxone pills during the search and gave them to Detective Kelley. Based on Detective Kelley's training and experience, he recognized buprenorphine as another name for suboxone. During the search, Detective Kelley also received marijuana from both Sergeant Durant and Sergeant O'Malley. Officers also seized several additional bags containing various substances.
At trial, a certificate of drug analysis was entered in evidence with each controlled substance and identified by Detective Kelley. The defendant turned over $286 during the search to Detective Kelley, which was entered in evidence. There was no drug paraphernalia found in the apartment other than the above evidence. The Commonwealth's police witnesses conceded on cross-examination the lack of evidence indicative of drug distribution, such as scales, dilutant, grinders, baggies or packaging materials, ledgers, safe or other security items, and weapons.
The defense was that the seized drugs were for personal use, not distribution. In support of this defense, the defendant testified to a lengthy history of drug use, dating from about 1990, when he got run over by a truck; as a result of his injuries, he was prescribed and began taking Percocet. Thereafter and for the interceding twenty years, the defendant was given Percocet pills, other than by prescription, by others, including coworkers and work customers and testified to using up to thirty Percocets a day.
When asked why some of the pills were blue and some white, the defendant explained, "That's just how they come." He continued, "I just know — `Percs' — I look at the thing, and if it says `Perc' on it, or something." He added, "I don't care about the color, as long as they're `Percs.'" When asked if he kept Percocets in his stove, the defendant said, "Yes." He also confirmed that he had one bag containing 179 Percocets and another bag containing approximately eighty-eight Percocets. He also stated that along with taking six to seven Percocets in the morning before he got out of bed, "instead of coffee [he'd] have a joint."
Regarding the cocaine, the defendant testified on direct examination that he used cocaine once a year at an annual party on Labor Day weekend. According to the defendant, he had purchased the supposed cocaine found in his apartment from a "kid from Chelsea" but had never used any of the three bags he had recently purchased (and was unclear whether he had used any of the alleged cocaine contained in two smaller bags discovered by the police). The defendant saved up "all year long" for cocaine and then obtained it from "a friend of [his] that [he] know[s] very well." The defendant received a discount because the "kid is a pretty good friend of [his]," and the defendant "did it once a year with him for years." The defendant stated that the other two bags found in his apartment were from the previous year when he "went and did the same thing." The defendant stated that he "[d]idn't look and see what it was. Didn't know anything," when he purchased the cocaine. Then, in response to the question whether there were three bags of cocaine that he delivered to the police, he responded, "That was, yes." On cross-examination, the defendant confirmed that he was "caught with" "three eight balls" of cocaine, and when asked if he saw the "bags of cocaine introduced in evidence," the defendant responded, "Yes."
Discussion. Certificates of drug analysis. The United States Supreme Court has held that the admission of the certificate from the forensic chemist without an opportunity for cross-examination is error. See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The defendant is entitled to a review under harmless error principles. Commonwealth v. Vasquez, 456 Mass. 350, 355-360 (2010). In determining whether the error was harmless, we ask "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Commonwealth v. Perez, 411 Mass. 249, 260 (1991), quoting from Chapman v. California, 386 U.S. 18, 24 (1967).
In making an assessment of harmless/harmful error, the court must consider whether, "on the totality of the record before [it], weighing the properly and improperly admitted evidence together, [the court is] satisfied beyond a reasonable doubt that the [certificates] did not have an effect on the jury and did not contribute to the jury's verdicts." Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). "[A] number of factors [may be examined], including the importance of the evidence in the prosecution's case, the frequency of reference to the evidence, whether it was cumulative of other evidence, and whether the other evidence against the defendant was overwhelming." Commonwealth v. Pimentel, 76 Mass.App.Ct. 236, 238 (2010), quoting from Commonwealth v. Rosario, 430 Mass. 505, 511 (1999). Also considered is "the relationship between the evidence and the premise of the defense." Ibid., quoting from Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).
The defendant contends that there was inadequate evidence, independent from the certificates of chemical analysis, showing the nature of the substances for which he was charged and that his testimony ought not to be considered on this issue. As to this latter point, he contends that the harmless error analysis
As to the nature of the substances, we have recognized that "it would be a rare case in which a witness's statement that a particular substance looked like a controlled substance would alone be sufficient to support a conviction." Commonwealth v. Hernandez, 77 Mass.App.Ct. 259, 263 (2010), quoting from Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). It is also "settled that scientific analysis is not the only method to prove the nature of a substance, and that a properly qualified police officer may provide opinion testimony that a substance is a particular controlled substance." Ibid. Had the evidence in this case consisted only of the testimony of police officers who "believed" that the substances were Percocet, cocaine, marijuana, and suboxone, and considering the authorities upon which he relies, there would be force to the defendant's arguments. Here, however, powerful evidence of the nature of the substances was introduced, consisting of admissions made by the defendant during the search by police and during his trial testimony.
Here, the defendant's statements and actions during the search of his residence were, at the least, implicit admissions that the substances in question were, in fact, cocaine, Percocet, and marijuana. The Commonwealth introduced evidence during its case-in-chief that police officers explained the search warrant to the defendant. The defendant told them he would hand over "what they were looking for" in return for the police not ransacking his residence; he then proceeded to retrieve Ziploc bags from the kitchen containing marijuana, cocaine, and multiple bags of Percocet containing approximately thirty to seventy pills in each bag. The officers also located other items that they believed to be Percocet pills, cocaine, marijuana, and buprenorphine. In Commonwealth v. DeMatos, 77 Mass.App.Ct. 727, 732 (2010), the Commonwealth introduced admissions from the defendant that he was "a substantial user of cocaine, ... that he was using cocaine in his apartment at the time the police arrived, and [that] when shown the drugs found in the apartment, [he] acknowledged that he had forgotten that cocaine was there." The court concluded that "the evidence that the composition of the drugs in the apartment was cocaine was so powerful that the certificates had little or no effect on the verdicts." Ibid.
In addition, consistent with the opening statement of his attorney at the beginning of the trial,
This testimony is significantly similar to that given in Commonwealth v. Villatoro, 76 Mass. App. Ct. at 652-654, wherein the defendant "not only admitted that the substance in question was marijuana, he testified at length on the subject, asserting the distinction between different grades of `weed,' explaining why he also had smoking implements and baggies on his person, and detailing his experience and long history of marijuana use." Moreover, as in Villatoro, and unlike the recent case of Commonwealth v. Mendes, 78 Mass.App.Ct. 474, 478-482 (2010), further appellate review granted, 459 Mass. 1104 (2011), the defendant's testimony was directed toward the nature of the substances for which he was charged.
We acknowledge that in analyzing for harmless error, a defendant's failure to contest the nature of the substance should not be considered as controlling. See Commonwealth v. Vasquez, 456 Mass. at 355 (defendant's theory of defense, as explained by trial counsel's summation, was mistaken identity). We believe that there is a significant difference between a situation where
We are thus convinced that the certificates' admission in evidence was harmless beyond a reasonable doubt. The Commonwealth showed that other properly admitted "evidence of guilt was `overwhelming' in the sense that it was so powerful as to `nullify any effect'" that the improperly admitted evidence "might have had on the jury or the verdict." Commonwealth v. Tyree, 455 Mass. at 704 n.44, quoting from Commonwealth v. Dagraca, 447 Mass. 546, 555 (2006). See Commonwealth v. Vasquez, supra at 363. Thus, reversal is not required.
Search warrant. The affidavit in support of the application for a search warrant from Everett police Detective Kelley provided the magistrate with information that an Everett police officer living next door to 9 Belmont Street had observed frequent foot traffic coming and going from the basement apartment of 9 Belmont Street. In the span of a few hours, the officer "notic[ed] the occupant [of 9 Belmont Street] [i.e., the defendant] would come out of the house talking on a [cellular telephone] several times." Detective Kelley corroborated these observations on August 8 and 9, 2006, witnessing a number of people make short visits to 9 Belmont Street. Prior to the visits, the defendant was seen in front of 9 Belmont Street looking around and talking on a cellular telephone. In addition, the affidavit reported that a confidential informant known to Kelley and dubbed "Spider" told Kelley that the defendant was distributing Percocet out of 9 Belmont Street, that he had purchased Percocet from the defendant in the past, and that he "ha[d] seen over 100 pills in [the defendant's] possession wrapped in a paper towel or in a zip
The defendant complains that the search warrant application was insufficient to establish reasonable belief that evidence of drug dealing would be located in the targeted apartment since the affidavit did not show evidence of the required nexus between criminal activity and the location sought to be searched. In particular, the defendant contends that sufficient evidence of a nexus was lacking because the warrant affidavit does not contain any description of the interior of 9 Belmont Street, including how many units are in the building, nor does it contain any "description of the means of access or egress between the units in the building." Likewise, the affidavit does not contain any description of Spider's supposed activities inside 9 Belmont Street, i.e., where he went, what he did, or who (if anyone) he met with while inside the building, nor does it contain any allegation that Spider ever saw Percocets (or any other controlled substance) inside the defendant's basement apartment.
"The substance of all definitions of probable cause is reasonable ground for belief." Commonwealth v. Vynorius, 369 Mass. 17, 23 (1975), quoting from Commonwealth v. Stewart, 358 Mass. 747, 749 (1971). We must consider the affidavit in its entirety "and not by first dissecting it and then subjecting each resulting fragment to a hypertechnical test of its sufficiency standing alone." Stewart, supra at 751. Moreover, given a strong preference for the "informed and deliberate determinations of magistrates," United States v. Lefkowitz, 285 U.S. 452, 464 (1932), courts reviewing warrants "will accept evidence of a less `judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.'" Aguilar v. Texas, 378 U.S. 108, 111, quoting from Jones v. United States, 362 U.S. 257, 270 (1960).
"[T]he information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there." Pina, supra at 655, quoting from Commonwealth v. Luthy, 69 Mass.App.Ct. 102, 105 (2007). See Commonwealth v. Gallagher, 68 Mass.App.Ct. 56, 59 (2007).
While the search warrant affidavit was not a model of detail and clarity, as a whole it provides sufficient evidence that there was a nexus between the drug transactions and the basement apartment at 9 Belmont Street. See Commonwealth v. O'Day, 440 Mass. at 300-305. The affidavit reported that there were three controlled purchases, all of which the informant set up by calling a specified number. On all three occasions, the informant was told to go to the basement apartment. While the affiant
In addition, the defendant argues that there was no conclusive evidence that the drug transactions occurred within the target apartment. However, the fact that neither the informant's statement nor police observations established that the drug transactions occurred within the apartment does not alter the probable cause analysis. See Commonwealth v. Hardy, 63 Mass.App.Ct. 210, 213 (2005). While the affidavit did not negate the possibility that the purchases occurred somewhere inside the building and not necessarily within the apartment, it is reasonable to conclude that the transactions occurred within the apartment or, at the least, that evidence of or from the transactions would be located there. See Commonwealth v. Santiago, 66 Mass.App.Ct. 515, 522 (2006); Commonwealth v. Turner, 71 Mass.App.Ct. 665, 669-670 (2008). Further, the additional facts of three controlled purchases, the method used by the informant to contact the defendant, the surveillance, and the reasonable inferences drawn from those facts tip the balance in favor of the Commonwealth. Contrast Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 600-601 (1991); Commonwealth v. Smith, 57 Mass.App.Ct. 907, 908-909 (2003). In our view, the affidavit sufficiently established the required nexus, and the defendant's motion to suppress was correctly denied. See Luthy, supra at 105-109.
Judgments affirmed.