Opinion
14-P-1097
10-30-2015
COMMONWEALTH v. EMANUEL CRUZ SANCHEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant Emanuel Cruz Sanchez was convicted of one count of trafficking cocaine between twenty-eight and 100 grams, G. L. c. 94C, § 32E(b), by a jury in the Superior Court. On appeal, he asserts that the judge erred in admitting testimony from a substitute expert in violation of his right to confrontation under the Sixth Amendment to the United States Constitution. We recount the facts as the jury may have found them, and as they relate to the issue on appeal.
Following a traffic stop based on erratic driving, a search of the motor vehicle driven by the defendant revealed large amounts of cash and twenty-three individually wrapped plastic baggies of a hard, white rock-like substance believed to be cocaine.
The validity of the stop is not an issue on appeal.
The defendant consented to both the search by the trooper and by a drug detection canine. The canine indicated the presence of narcotics in the dashboard in front of the front passenger seat. The contraband was found in an aftermarket compartment underneath the glove box.
The chemist who examined the substance found in the plastic bags from the vehicle was unavailable to testify at the time of trial. The Commonwealth called a substitute chemist from the same laboratory who reviewed the original chemist's notes and testified in the original expert's place.
Prior to trial, the defendant objected to the substitute expert's testifying on grounds that it violated "the spirit of Melendez-Diaz" (emphasis added). See Melendez-Dias v. Massachusetts, 557 U.S. 305 (2009). Both the language and the substance of defendant's objection were not indicative of constitutional grounds, including the confrontation clause. Pertinent here is the principle that Melendez-Diaz is an inapplicable basis of objection for the improper admission of underlying facts through oral testimony of a substitute expert. Accordingly the motion in limine objection did not place "the trial judge . . . on notice" of a constitutional objection to the introduction of any underlying data during the substitute expert's testimony. Commonwealth v. Kalhauser, 52 Mass. App. Ct. 339, 346 (2001). See Commonwealth v. Lezynski, 466 Mass. 113, 117-118 (2013). Absent constitutional grounds, an objection to a motion in limine without further objection during trial is not preserved. Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998).
The defendant further explained that the basis of his objection was the chemist being offered as an expert was not the one who tested the substance. The trial judge noted the defendant's objection, but allowed testimony of the substitute expert limited by the confines proscribed in "case law that has emanated from Melendez-Diaz."
Compare Commonwealth v. Depina, 456 Mass. 238, 248 n.8 (2010) ("We look to the substance of defense counsel's objection rather than his use of specific language, terms, or phrases in determining whether the objection preserves the issue for appeal") with Commonwealth v. Galicia, 447 Mass. 737, 746-747 (2006) (defendant's usage of "indicia of reliability" and deprivation of opportunity to cross-examine witness properly raised objection based on confrontation clause).
During trial, the substitute expert testified on direct examination that he "had an opportunity to eyeball the substance," and then stated additionally that "the report . . . indicates [fifty-five] grams." The defendant failed to object. The Commonwealth appropriately concedes, and we agree, that the substitute expert's recital of the original expert's results on the weight of the substance during his direct examination was error. We review unpreserved errors for a substantial risk of a miscarriage of justice. Commonwealth v. Lezynski, supra at 118 (2013).
The additional remark was not responsive to the prosecutor's properly framed question: "[D]id you form an opinion based on your training and experience as to the weight of the product?"
"[A] surrogate witness cannot introduce a nontestifying analyst's test result on cross-examination." Commonwealth v. Greineder, 464 Mass. 580, 589 (2013), citing Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).
During the ensuing cross-examination, the substitute expert testified further that the weight of the substance taken from fifteen of the twenty-three bags was approximately thirty-nine grams. "Hearsay data underlying an expert's opinion testimony are admissible if elicited by the defendant on cross-examination . . . [and allows] the jury to evaluate a witness's credibility." Commonwealth v. Greineder, 464 Mass. 580, 600 (2013). See Mass. G. Evid. § 705 (2015).
A police officer who assisted during the traffic stop testified that he independently weighed all twenty-three bags, and found that the substance and bags together weighed sixty-six grams. Testimony of another officer, since deceased, had been previously recorded at the hearing on the motion to suppress and was played back to the jury. The recorded testimony was to the effect that the bags were "sandwich baggies" and that, typically, crack cocaine is packaged in the corner of a baggie, the baggie is then twisted and knotted, and the excess part above the knot is cut off, was played to the jury. "We permit lay witnesses to testify to opinions such as size, weight and distance, all of which require judgment." Commonwealth v. Connolly, 454 Mass. 808, 832 (2009).
The presentation of the recorded testimony is not an issue presented on appeal.
The jury were free to make a finding as to the weight of the substance inside the plastic baggies given the permissible testimony of the substitute expert on cross-examination and of the police officers. See ibid. On this record, therefore, we conclude that the brief reference by the substitute chemist on direct examination to the weights recorded in the report did not create a substantial risk of a miscarriage of justice. The considerable amount of additional properly admitted evidence was consistent and probative on the issue of weight.
As the admissible testimony placed the weight of the seized substance between sixty and sixty-six grams, this case is distinguishable from Commonwealth v. Montoya, 464 Mass. 566, 573-576 (2013), where the weight of the substance was only approximately twelve grams, a relatively small amount, more than the threshold weight needed for conviction.
It is relevant to this point that, unlike in Melendez-Diaz, the original chemist's notes and the drug certificates were not admitted in evidence.
We note as well that the record demonstrates the defendant was afforded a meaningful opportunity cross-examine the witnesses, including the substitute expert.
The defendant "actually benefited from the absence of [the original expert] in that he could undermine [the substitute expert]'s testimony by showing that [he] could not be sure there were no flaws in [the original expert]'s work without establishing that there were any actual flaws." Commonwealth v. Barbosa, 457 Mass. 773, 791 (2010).
Judgment affirmed.
By the Court (Trainor, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 30, 2015.