surveying futility jurisprudence and holding that “because an objection to the admission of a drug certificate would have been futile, the rationale for denying the defendant a more favorable standard of review is not applicable”
How later courts described this case
- surveying futility jurisprudence and holding that “because an objection to the admission of a drug certificate would have been futile, the rationale for denying the defendant a more favorable standard of review is not applicable”
- holding that admission of drug certificates in violation of Crawford and Melendez-Diaz was not harmless error
- holding that unabrogated Supreme Judicial Court holdings must be applied by Massachusetts courts
- scale, rubber bands, cash, sandwich bags, and walkie-talkie relevant on issue of distribution but not to establish that items were cocaine
Written by the judges who cited it.
The opinion
Spina, J.
(dissenting in part and concurring in part). The court has determined that the defendant should not be held to a lesser standard of review because of a failure to object to the admission of the certificates of drug analysis (drug certificates), where the circumstances relegated the act of objecting to an exercise in futility, and for reasons of fundamental fairness. I do not agree.
I agree that the trial judge was required to apply the law as stated in Commonwealth v. Verde, 444 Mass. 279 (2005). Ante at 356-357. However, that is not determinative of the question presented here. There is nothing unusual about requiring a litigant to preserve an issue in the trial court involving precedent that he seeks to have overruled in this court. In Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 562 , cert, denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004), we ordered the respondents’ claims of trial by jury struck after overruling the decision in Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332, 338 (1997), to the extent it afforded the respondent a jury trial after the Massachusetts *375 Commission Against Discrimination (commission) had taken final action on a complaint pending before it. We also declined, in the Stonehill College case, supra at 570, to overrule Bournewood Hosp., Inc. v. Massachusetts Comm’n Against Discrimina tion, 371 Mass. 303 (1976), and Buckley Nursing Home, Inc. v. Massachusetts Comm’n Against Discrimination, 20 Mass. App. Ct. 172 (1985), cases approving emotional distress damages awarded by the commission for retaliation, as well as other employment discrimination claims under G. L. c. 151B, respectively. In Dziokonski v. Babineau, 375 Mass. 555, 556 (1978), we reversed the dismissal pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), of a complaint by parents seeking emotional distress damages against the defendant for negligently causing the death of their child, and we overruled Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897), a case requiring proof of “impact” to a plaintiff before emotional distress damages could be recovered. In Commonwealth v. Cepulonis, 374 Mass. 487, 497 (1978), we affirmed the denial of the defendant’s pretrial motion to dismiss indictments relating to a bank robbery for which he had been convicted in Federal court, and we declined to overrule Commonwealth v. Gallarelli, 372 Mass. 573, 577-578 (1977) (“same evidence test,” which permits conviction under two statutes based on evidence of single act, does not offend prohibition against double jeopardy where each statute requires proof of additional fact which other does not), in favor of a “same transaction rule.” In each of these cases the party seeking to overturn precedent preserved the issue in the trial court for appellate review. Lawyers are well aware that, although judges may be constrained to decide an issue under existing law that the lawyer seeks to have overruled on appeal, they must preserve the issue for appellate review by objection, motion, or otherwise.
Although obligated to apply existing law, judges commonly facilitate the efforts of counsel who seek to change case law. Judges often afford counsel an opportunity to prepare a thorough record in order to have an optimal basis to present the issue, and they frequently report a question on a record made suitable for an appellate court to consider whether existing precedent remains viable. See, e.g., Stonehill College v. Massachusetts Comm’n Against Discrimination, supra at 551.
This is not a case involving a claim of ineffective assistance *376 of counsel, based on a failure to object, where we have said that an objection would have been “futile” because a judge had broad discretion to admit evidence and probably would have done so even if counsel had objected. See Commonwealth v. Carroll, 439 Mass. 547, 557 (2003); Commonwealth v. Cohen, 412 Mass. 375, 392 (1992). Here, a simple objection was necessary, conformably with standard appellate practice, to preserve an issue for review. The Appeals Court noted in its decision in Commonwealth v. Vasquez, 75 Mass. App. Ct. 446 , 459 n.9 (2009), that of sixty-two cases pending on appeal where trial occurred after Commonwealth v. Verde, supra, and before the United States Supreme Court granted certiorari on March 17, 2008 ( 552 U.S. 1256 [2008]), in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz), defense counsel had objected to the admission of ballistics or drug analysis certificates in thirty-one cases. There is nothing burdensome about an objection. It is a well-recognized, easy, and painless requirement to continue litigating an issue. There is nothing unfair about such a requirement in this case.
Any unfairness in this case fell on the shoulders of the Commonwealth. The court cites Commonwealth v. Torres, 420 Mass. 479, 482-483 (1995), and quotes Commonwealth v. McDuffee, 379 Mass. 353, 359 (1979), to explain that the “rationale behind the requirement of a specific [objection] is to enable the judge to make any necessary correction.” Ante at 358. Those cases involved jury instructions. The instant case does not involve failure to object to a jury instruction, but rather failure to object to the admission of evidence. Where the failure to object relates to the admission of evidence, the principle on which the court relies is somewhat broader. “A party challenging the admission of evidence must timely object and state the specific grounds for his objection. Fed. R. Evid. 103 (a) (1). [1] This rule serves to ensure that ‘the nature of the error [is] called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take corrective measures.’ Advisory Committee’s Note to Rule 103 (a), 56 F.R.D. 183 , 195 (1972).” (Emphasis added.) United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.), cert, denied, 498 U.S. 947 (1990). See 2 B.E. Bergman & N. Hollander, Wharton’s Criminal Evidence *377 § 8:31 (15th ed. 1998); 1 McCormick, Evidence § 52 (6th ed. 1987). See also Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486 , 489 n.5 (1992); Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977); Yuma v. Evans, 85 Ariz. 229, 236 (1959); State v. Buckner, 214 N.W.2d 164, 167-168 (Iowa 1974); Refrigeration Indus., Inc. v. Nemmers, 880 S.W.2d 912, 919 (Mo. Ct. App. 1994). Because there was no objection, the Commonwealth was afforded no opportunity to rectify the matter by calling as a witness the chemist who analyzed the drugs.
Crawford v. Washington, 541 U.S. 36 (2004), created a sea change in the use of hearsay evidence in the prosecution of criminal cases across the country. Many State court cases have been appealed since the Crawford decision, involving many aspects of hearsay evidence. More will be appealed. At the time of trial in the present case, the admissibility of drug certificates was a likely issue that the Supreme Court would consider. There was every reason to believe that the issue we decided in Commonwealth v. Verde, supra, would eventually be taken up by the Supreme Court, if not in a review of the Verde decision itself, then in a different Massachusetts case (as occurred in Melendez- Diaz), or in a case from another jurisdiction. As the Appeals Court noted, “[a] virtual drumbeat of constitutional challenges is cataloged in the Melendez-Diaz petitions for certiorari. . . . [Challenges were mounting, and any evidentiary protocol allowing the admission of a drug certificate in lieu of testimony was under siege.” Commonwealth v. Vasquez, supra at 460 . If counsel wanted to preserve the issue of the admissibility of drug certificates, it should have been obvious that an objection would be necessary. That did not occur here. I would not conclude that an objection was futile or that its necessity was unfair, and, for the reasons I have given, I respectfully dissent.
I agree with the court’s analysis that, under the harmless beyond a reasonable doubt standard of review, the defendant is entitled to a new trial.
1Cf. Mass. G. Evid. § 103 (a) (1) (2010).