Appeals court throws out another conviction, based on Supreme Court case Coakley argued and lost

The Massachusetts Appeals Court today overturned a Roxbury man's conviction for crack trafficking because prosecutors relied on a certificate that the substance found in his apartment was a large amount of crack, rather than producing an expert who could be cross-examined.

It's the latest in a series of dismissals by the appeals court based on a Supreme Court decision earlier this year in Commonwealth v. Melendez-Diaz. In that case, Attorney General Martha Coakley herself argued the state had a right to use just certificates in cases involving crime evidence. By a 5-4 margin, however, the Supreme Court ruled the practice violates a defendant's right to confront his accusers - the experts who filled out the certification.

In today's case, Deniz DePina was arrested in 2006 after Boston Police obtained a search warrant for his apartment at 59 Burrell St., where they found what appeared to be a sizable amount of crack along with other items commonly used by drug distributors, such as plastic bags, razor blades and baking soda.

At his trial, a Boston officer testified that, based on his years of experience, the substance he seized appeared to be crack. To back him up, the Suffolk County District Attorney's office produced certification from a drug expert that the material was, in fact, crack - and that it weighed more than 14 ounces, the minimum required for a trafficking charge.

The appeals judges concluded when coupled with the officer's testimony, circumstantial evidence - such as how it was found with items commonly associated with drug sales in a sparsely furnished room, along with a call to DePina's cell phone from somebody seeking "a big fifty" - would lead one to believe the stuff was, indeed, crack.

"Nonetheless, we cannot conclude that admission of the certificates had only a very slight effect on the jury," the court ruled. "The certificates were the strongest evidence that the rocks were cocaine."

The court added that, even without the Supreme Court ruling, it would have had to dismiss the trafficking charge because the only evidence that the cocaine weighed enough to warrant the charge was the certificate.

In their decision, the judges did side with prosecutors on one issue: That cell phones can be considered equipment related to drug sales. DePina's lawyers had asked the court to toss evidence from the phone - specifically, the call asking for a "big fifty" - because the search warrant did not specifically mention cell phones. The court, however, ruled that in this modern era, cell phones are an essential component of a drug trafficker's work and that they are therefore covered under less specific language such as "implement."

Complete ruling.