Opinion
No. 11–P–379.
2012-09-10
COMMONWEALTH v. Jeffrey MARTEL.
By the Court (KANTROWITZ, WOLOHOJIAN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant was convicted of possession of a class A substance (heroin), and conspiracy to possess same. See G.L. c. 94C, §§ 34, 40. At trial, the judge allowed a witness to perform a field test of the substance at issue in front of the jury without the Commonwealth's having established the reliability of such testing. We conclude that this was error and that the defendant is entitled to a new trial.
Background. According to the testimony of a police officer, on the evening of March 12, 2009, the defendant and three other individuals traveled together by car from Fall River to Providence, Rhode Island, on Interstate 195.
Approximately fifteen minutes after the car exited the highway in Providence, the police saw it reenter the highway traveling eastbound back toward Fall River. During the trip back, an officer noticed a number of “blue items” that he believed were “consistent with the packaging for narcotics” being thrown from the window of the car. He subsequently observed one of the car's occupants, later identified as the defendant's brother, snorting a substance from a blue glassine bag and then discarding the bag from the car. After they stopped the car, the police found 290 similar bags containing a white powder. A search of the defendant's person revealed seventy additional bags.
How the police came to follow the car to Providence and back was never established at trial.
The police sent a sample of the substance in the bags to the State crime laboratory for testing. However, that testing was not completed by the time of trial. Lacking any chemical analysis, the Commonwealth sought to prove the identity of the substance through other means. To that end, an experienced narcotics police officer testified that heroin users and dealers frequently travel from Fall River to Providence to purchase heroin. He also testified that “[b]ased on [his] training and experience, the consistency, color and texture of [the] substance [was] consistent with that of heroin,” that the substance was specifically packaged in a manner typical to heroin,
The defendant was originally charged with possession of (and conspiracy to possess) heroin with the intent to distribute it, see G.L. c. 94C, § 32( a ), but the jury convicted him only of the lesser included charges of simple possession and conspiracy to possess. He was also charged with a school zone violation, G.L. c. 94C, § 32J. The trial judge entered a required finding of not guilty on that charge at the close of the Commonwealth's case.
and that snorting heroin is one manner in which it is commonly used.
A second police witness, also experienced in narcotics matters, testified that what the police found was “consistent with the packaging of heroin and the substance of heroin.”
There was also testimony—admitted over the defendant's objection—that following the defendant's arrest, three unidentified people placed calls to the cell phone of one of the other passengers in the car seeking to purchase “bunnies,” a street term for bundles of heroin. This evidence was admitted only with respect to the conspiracy charge, and the judge instructed the jury that they were “not to regard or take it into account in ... determining the defendant's guilt or innocence with respect to” the charge of possession of heroin. Moreover, even as to the conspiracy charge, the judge instructed that the jury were to consider the calls only if “other evidence apart from that statement [i.e., the call] shows that there was a conspiracy between the speaker [i.e., the caller] and the defendant.” There was no other such evidence. See Commonwealth v. McLaughlin, 431 Mass. 241, 246 (2000) (coconspirator's out-of-court statement admissible only if preponderance of independent evidence establishes that defendant was involved in conspiracy with declarant).
During his cross-examination of one of the officers, the defendant sought to demonstrate that the police had failed to pursue certain investigatory steps available to them. See generally Commonwealth v. Bowden, 379 Mass. 472, 485–486 (1980). Along these lines, the defendant elicited that the police could have conducted field testing of the substance, but failed to do so. Over the defendant's objection, the judge allowed the officer on redirect to conduct a field test from the witness stand. The liquid in the test tube turned green, indicating a positive test for heroin. The judge also denied the defendant's motion for a mistrial, which was based on claims of both unfair surprise and lack of foundation. The judge ruled that the defendant had “opened the door” to the courtroom test by raising the absence of field testing.
After the field test had been performed, the officer testified that such tests are “ninety-nine percent accurate.” However, on recross-examination, the officer acknowledged that he had little, if any, understanding of the chemistry on which the test was based or how the test worked. Thus, for example, while the officer initially suggested that the test was specific to heroin and that cocaine would not test positive, when asked how he knew that, the officer answered, “I don't know.”
Discussion. Reliability of the field testing. On appeal, the defendant principally asserts that the judge erred in allowing the field test to be done. For the reasons that follow, we agree that the field test should not have been allowed without the reliability of such tests having been established.
As noted, the defendant has argued multiple other grounds for why the judge erred in allowing the officer to perform a field test from the witness stand. We need not reach those grounds, but note that nothing in this memorandum and order should be interpreted as suggesting that the judge's allowing the test to be performed would have been proper had the reliability of field testing been established.
The leading case on the admissibility of drug field tests is Commonwealth v. Fernandez, 458 Mass. 137 (2010). In Fernandez, the police had performed field testing of residue from the defendant's trash on a weekly basis during the course of their investigation. Id. at 147. The defendant had several months' notice of the Commonwealth's intention to introduce the field test results at trial. Id. at 147–148. Nevertheless, the defendant did not notify the Commonwealth of his intent to challenge the reliability of that testing until the first day of trial (thus depriving the Commonwealth of an opportunity to retain an expert to demonstrate its reliability). Id. at 148. The Commonwealth sought to demonstrate the reliability of the testing pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), by relying on an out-of-State court case and regulation. While characterizing this showing as a “relatively weak proffer,” Fernandez, supra at 150, the court concluded that the trial judge had not abused his discretion in ruling that the Commonwealth had sufficiently demonstrated the reliability of field testing under the circumstances presented. The court emphasized that the limited showing was sufficient only because the defendant had waited until “the eleventh hour” to raise the issue. Id. at 149–150, 151 n. 20. The court also emphasized that the Commonwealth at trial had never characterized the field testing as “conclusive.” Id. at 150. Instead, the “presumptive” nature of field tests was “emphasized at every turn,” and the judge twice instructed the jury that a field test “may or may not yield a valid result,” and that “[a] forensic laboratory test is necessary to identify the nature of an unknown substance completely.” Ibid. Notably, although the court upheld the introduction of the field testing evidence there, it underscored the “limited scope” of its ruling and cautioned that the reliability of field testing has not been generally established in Massachusetts by appellate decision. Id. at 151 n. 20. “Until that occurs, field tests offered to prove the identity of a substance ... must be evaluated according to one of the methods approved in Lanigan, supra at 26, such as a review for general acceptance.” Ibid.
The circumstances in the case before us are markedly different from those in Fernandez. Given that no field testing had ever been performed prior to trial, the defendant had no reason to notify the Commonwealth that he intended to challenge the reliability of such testing. Nor did he have any reason to think the Commonwealth would seek to perform such a test from the witness stand. Moreover, any suggestion that the Commonwealth itself was surprised that field testing issues would arise at trial is belied by the fact that the police officer brought the test kit with him to the stand and offered to perform the test as soon as defense counsel broached the issue. Finally, in contrast to Fernandez, the Commonwealth did not characterize the test as only preliminary. To the contrary, the officer performing the test testified that the positive result meant that “this substance is ninety-nine percent certain to be heroin.”
Hence, the reasons that the Supreme Judicial Court gave in Fernandez for allowing a relaxed showing of reliability are not present here. In addition, the Commonwealth made no effort whatsoever to establish the reliability of field testing before the witness conducted the test in the presence of the jury.
The Commonwealth is left to argue that the reliability of the testing was established by testimony elicited by the defendant on cross-examination. To be sure, some of this testimony could be taken to suggest that field tests are considered reliable. For example, the police witness testified that none of the approximately twenty field tests he personally had conducted had later been proven erroneous by further laboratory testing.
We note that the trial judge did not have the benefit of Fernandez, which was issued the year following trial.
However, such suggestions do not come close to demonstrating the reliability of field testing in the manner, or to the degree, contemplated in Fernandez and Lanigan. Therefore, the Commonwealth's contention that the defendant himself had already “established that such field tests are reliable” by the time the field testing was performed is unavailing.
The officer did not clarify how many of these tests affirmatively had been verified by such later testing.
Under these circumstances, it was error to allow the in-court field testing to be done.
The testimony that was elicited after the test was performed demonstrated that the witnesses the Commonwealth put forward lacked the relevant scientific expertise necessary to establish the test's reliability.
Had the reliability of field testing been established, the question would remain whether the Commonwealth could use redirect examination to conduct the investigatory step it failed to pursue prior to trial. As already noted, we need not reach that question.
The remaining question is whether the error caused sufficient prejudice to entitle the defendant to a new trial. As noted, there was other evidence indicative that the substance was heroin, such as the testimony that its appearance and packaging was “consistent with” that of heroin. The question is whether such evidence was so robust that we can say with confidence that the chemical testing dramatically performed in the jury's presence “did not influence the jury, or had but very slight effect.”
Commonwealth v. Vick, 454 Mass. 418, 423 n. 5 (2009), quoting from Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008). The identity of the substance was hotly contested at trial, and the primary defense theory was that the Commonwealth had failed to meet its burden on that element due largely to the absence of testing of any kind. The damage done to this theory of defense by the erroneous admission of an in-court field test is obvious. See, e.g., Commonwealth v. Eneh, 76 Mass.App.Ct. 672, 682 (2010) (error was prejudicial where it “went to the heart of the defense theory, hindering the defense from raising a reasonable doubt in the minds of the jurors”). Contrast Commonwealth v. Madera, 76 Mass.App.Ct. 154, 158 (2010) (erroneous admission of drug analysis certificates harmless where “defendant did not challenge the nature of the substance but contended that the bags of marijuana found in the bedroom did not belong to him”). The defendant is therefore entitled to a new trial.
On the conspiracy charge, the Commonwealth did not need to prove that the actual substance found in the defendant's possession was heroin. Commonwealth v. Frazier, 410 Mass. 235, 245 (1991). However, the Commonwealth did have to “prove that the defendant combined with another with the intention to commit the object crime”—here, intent to possess heroin. Commonwealth v. Nee, 458 Mass. 174, 180–181 (2010) (citations omitted). The fact that the substance field tested positive for heroin remained the strongest evidence that the defendant had forged an agreement to possess heroin.
Of course, any retrial must be limited to the lesser included crimes for which the defendant was convicted. See Commonwealth v. Berry, 431 Mass. 326, 336 n. 13 (2000); Commonwealth v. Acevedo, 446 Mass. 435, 451 n. 20 (2006).
Sufficiency. Identity of the substance. The defendant also maintains that the Commonwealth's evidence that the substance was heroin was insufficient as a matter of law and that double jeopardy therefore bars any retrial. There is no merit to this argument. Sufficiency is measured based on all the evidence admitted at trial without regard to the propriety of its admission. See Commonwealth v. Farnsworth, 76 Mass.App. 87, 98–99 (2010); Commonwealth v. Belmer, 78 Mass.App.Ct. 62, 68 n. 3 (2010). Thus, even if the evidence were “insufficient to send the case to the jury if all improperly admitted evidence is disregarded, double jeopardy principles nevertheless do not bar a retrial.” Kater v. Commonwealth, 421 Mass. 17, 18 (1995).
The case law has long established that the Commonwealth can prove the identity of an illegal drug without having to rely on a laboratory analysis of its chemical composition. See Commonwealth v. Madera, supra at 159, quoting from Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). In this case, the field test along with the properly admitted evidence were plainly sufficient to allow a fact finder to determine beyond a reasonable doubt that the substance was heroin. See Commonwealth v. MacDonald, 459 Mass. 148, 157–158 & n. 5 (2011), and cases cited.
Conspiracy. Nor is there merit to the defendant's claim that there was insufficient evidence that the defendant engaged in a conspiracy to possess the heroin. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury reasonably could have concluded that the defendant and three others traveled to Providence together with the collective purpose of purchasing drugs. This was sufficient to make out a charge of conspiracy to possess. See Commonwealth v. Nee, 458 Mass. 174, 181 (2010) (“a conspiracy may [be], and typically is, proved by circumstantial evidence, because often there is no direct evidence that an ‘agreement’ was reached”). We need not reach the defendant's other claims of error.
Judgments reversed.
Verdicts set aside