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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Johnson, 32 Mass.App.Ct.
355 (1992)
Appeals Court of Massachusetts, Middlesex.
No. 91‑P‑783.
Argued
Decided
Further Appellate Review Denied
Gail S. Strassfeld,
Marc A. Eichler, Sp. Asst.
Dist. Atty., for Com.
Before KASS, PORADA and LAURENCE, JJ.
PORADA, Justice.
The
defendant was convicted of trafficking in twenty‑eight or more grams of
cocaine (G.L. c. 94C, § 32E[b ][2], as appearing in St.1988, c. 124). On appeal, the defendant claims that the
trial judge erred in admitting in evidence certificates of the drug analysis
performed by the Department of Public Health (department) and in failing to
instruct the jury on the lesser included offense of possession [32 Mass.App.Ct.
356] with intent to distribute
cocaine. The defendant also assigns as
error the denial of his motion to suppress based on lack of probable cause to
arrest. We affirm the conviction.
[1] 1. Certificates of analysis. The certificates of analysis prepared by the
department's chemist for the substance seized from the defendant were admitted
in evidence by the trial judge under the provisions of G.L.
c. 111,§ 13. (FN1) The defendant contends that the certificates
did not comply with the prerequisites of § 13 because the jurat
in each of the certificates contained the facsimile signature of a notary
public rather than a handwritten signature, which he asserts is required by §
13.
By its
terms, § 13 requires only that the analyst swear to the contents of the
certificate before a notary public.
Section 13 is silent as to whether a notary public must use a
handwritten signature to validate the oath of the analyst. Similarly, G.L. c.
222, § 1, which authorizes notaries public to administer oaths, does not
prescribe the form of a notary's signature.
Absent an express statutory directive, we must decide whether a stamped
facsimile of a notary's signature is sufficient verification that the analyst
swore to the contents of the certificate before the notary.
The
defendant offers three arguments, none of which is persuasive, for the
necessity of a handwritten signature.
First, he argues that a handwritten signature carries with it an indicium of reliability that the analyst actually appeared
before the notary public, whereas a facsimile signature does not. We think that the potential for falsification
of the oath [32 Mass.App.Ct.
357] in either case is the same. In each case, G.L.
c. 267, § 1, which makes proffering false evidence a felony, acts as a
sufficient deterrent. Second, the
defendant argues that as the Legislature has enacted various statutes providing
that a facsimile of a signature has the same validity as a handwritten one, see
G.L. c. 36, § 19 (register of deeds), and G.L. c. 221, § 17 (clerk of court), its failure to do so in
§ 13 signifies an intent to require a handwritten signature. In
Finnegan v. Lucy, 157
We see no
persuasive reason to preclude a trial judge from relying on a facsimile
signature of a notary public as sufficient verification that the analyst swore
to the contents of the certificate before the notary under § 13. It is a well established principle that in
the absence of a statutory directive, a signature may be affixed in many
different ways. It may be written by
hand or it may be stamped, printed, or affixed by other means.
Finnegan v. Lucy, 157 Mass. at 443, 32 N.E. 656. Assessors of Boston v. Neal,
311 Mass. 192, 200, 40 N.E.2d 893 (1942).
As noted, G.L. c. 267, § 1, which makes
proffering false evidence a felony, acts as a sufficient deterrent to the
illegal use of a facsimile signature of a notary public. See also
State v. Huggins, 659 P.2d 613, 618 (Alaska Ct.App.1982) (absent evidence
to the contrary, the trial court should presume that a State official's
signature, under seal, certifying a document or a signature is valid even if
the signature is a stamped or [32 Mass.App.Ct. 358]
printed facsimile); State v. Irving, 165 Ariz. 219, 225, 797
P.2d 1237 (Ct.App.1990) (absent contrary evidence, the trial court is entitled
to assume that the facsimile signature of a State officer is valid). While a handwritten signature is the better
practice, we conclude the certificates with facsimile signatures were
admissible under § 13.
[2][3] 2.
Judge's instructions. The
defendant contends that, because he challenged the certificates of analysis,
the judge erred in failing to instruct the jury on the lesser included offense
of possession with intent to distribute.
Although the defendant submitted a request for an instruction on the
lesser included offense of possession with the intent to distribute, he failed
to object at the conclusion of the judge's instruction. Mass.R.Crim.P.
24(b), 378 Mass. 895 (1979). In the
absence of such an objection, the claim of error will be considered only under
a substantial risk of a miscarriage of justice standard. Commonwealth v. Bowler, 407
Mass. 304, 305, 308, 553 N.E.2d 534 (1990).
There was
no prejudicial error. A judge need not
charge on a hypothesis unsupported by the evidence. Commonwealth v. Egerton, 396 Mass. 499, 504, 487 N.E.2d 481
(1986). At trial the defendant conceded
that there was no evidence presented which would put the weight of the cocaine
below twenty‑eight grams, the threshold for an instruction on a lesser
included offense. G.L.
c. 94C, § 32E(b )(1) & (2). Since the weight was uncontested, an
instruction on the lesser included offense was not required.
Ibid. Commonwealth v. Tata, 28 Mass.App.Ct. 23, 26,
545 N.E.2d 1179 (1989).
[4] 3.
Motion to suppress. There is
no merit to the defendant's claim that his motion to suppress should have been
allowed because the police officers lacked probable cause to arrest. Here, the motion judge found that two
experienced detectives, who had
conducted numerous drug investigations, observed the defendant exchange an
object resembling a packet of cocaine for currency in an area in which they had
conducted numerous surveillances and investigations for narcotics. The judge was correct in concluding that
those circumstances were sufficient to constitute probable cause to arrest. [32
Mass.App.Ct. 359]
See Commonwealth v. Gullick,
386 Mass. 278, 283, 435 N.E.2d 348 (1982).
Compare Commonwealth v. Ortiz,
376 Mass. 349, 350, 353‑354, 380 N.E.2d 669 (1978) (probable cause
existed based on defendant displaying type of packet used for packaging drugs
to a person with prior drug arrests in an area of heavy drug traffic);
Commonwealth v. Rivera, 27 Mass.App.Ct.
41, 42, 45‑46, 534 N.E.2d 24 (1989) (probable cause established based on
transaction involving type of container regularly used in narcotic sales, the
character of the location, and the opinion of the experienced police officers).
Judgment affirmed.
(FN1.) General Laws c. 111, § 13, as amended
through St.1982, c. 650, § 18, provides, in pertinent part: "The analyst or an assistant analyst of
the department [of public health] ... shall upon request furnish a signed
certificate, on oath, of the result of the analysis [requested by the police
for law enforcement purposes].... This
certificate shall be sworn to before a ... notary public, and the jurat shall contain a statement that the subscriber is the
analyst or an assistant analyst of the department. When properly executed, it shall be prima
facie evidence of the composition, quality, and when requested, the net weight
of the narcotic ... or the net weight of any mixture containing the narcotic or
other drug, ... and the court shall take judicial notice of the signature of
the analyst or assistant analyst, and of the fact that he is such...."