Opinion
No. 12–P–6.
2013-10-18
COMMONWEALTH v. Jena L. SMITH.
Koczela then testified that, upon the basis of the computer calculation, he concluded that the distance between the A–Mart parking lot and St. Joseph's High School was less than 500 feet.
By the Court (KANTROWITZ, SIKORA & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of (1) cocaine distribution, in violation of G.L. c. 94C, § 32A( c ); (2) cocaine distribution within a school zone, in violation of G.L. c. 94C, § 32J; and (3) conspiracy to violate drug laws, in violation of G.L. c. 94C, § 40. The judge sentenced the defendant to one year in a house of correction for distributing cocaine, two years in a house of correction for distributing cocaine in a school zone, to commence from and after the distribution sentence, and two years of probation for the conspiracy charge, to commence from and after the school zone sentence. The defendant appeals on the grounds that (1) the admission of testimony of a substitute surveyor violated her right to confront the witnesses against her under the confrontation clause of the Sixth Amendment to the United States Constitution; (2) the Commonwealth deprived her of due process and a fair trial by failing to disclose certain testimony until the day of trial; (3) the evidence of conspiracy was insufficient as a matter of law; (4) her counsel provided constitutionally defective representation by failing to argue that it was legally impossible for her to conspire with her spouse; and (5) the case against her was so tainted with unconscionable conduct by the police that her convictions violate due process. Background. On October 13, 2009, Mandy Moore
called Douglas Smith, the defendant's husband, and asked him for fifty dollars worth of crack cocaine. Smith told her to meet him at A–Mart. When Moore got to A–Mart, however, the defendant, not her husband, arrived in her husband's car. Moore testified that, when she approached the car, she saw a plastic bag containing crack cocaine on the passenger seat. Moore asked the defendant, “Is this it?” and the defendant said “Yes.” Moore then took the bag and handed the defendant fifty dollars. The defendant drove Moore home. Soon after, Moore turned the cocaine over to the Pittsfield police. The defendant and her husband were arrested on October 27, 2009.
Moore was a crack cocaine addict who worked with the Berkshire County drug task force as an undercover buyer. Prior to the October 13, 2009, incident at issue here, she had participated in three controlled drug buys from the defendant's husband, Douglas Smith.
At trial, to prove that the drug transaction occurred within 1,000 feet of a school zone, the Commonwealth called Brian Koczela, a licensed land surveyor. Koczela testified that the distance from the A–Mart parking lot (the site of the drug transaction) to St. Joseph's High School (the nearest school) was less than 500 feet. Koczela, however, had not actually taken the measurements which he used to calculate that distance. Instead, he relied upon measurements contained in the field notes of Eugene Galvagni, a retired surveyor whose notes and records Koczela had purchased.
Koczela testified that the records which he had purchased from Galvagni consisted of “all his field notes, his computations, his notes, his maps, his plans, deed research, everything he's done in business since he went into business.”
Koczela testified that, to calculate a distance by use of one of Galvagni's preexisting surveys, he had inserted the angles and distances contained in Galvagni's notes into a computer program. When asked to describe his preparation for trial, Koczela replied:
“I went down—I have all [Galvagni's] files in my basement. I went down and I pulled his file for this particular job. I'm not sure what year it was done, but I pulled his file out. I brought it back up to my work station, up to my office. We have a computer program. It's a coordinate geometry program. It's—it's high school mathematics. It has, you know, nothing special, nothing fancy. It takes a sine, then you generate coordinate points, and once you know coordinates, you can inverse between two known points and calculate distance.
“So I took his field notes and I typed them in my survey software program, which I would do with any other job that I do, whether for myself or for somebody else, and I generated the distance between the two points that he shot....”
Koczela then testified that, upon the basis of the computer calculation, he concluded that the distance between the A–Mart parking lot and St. Joseph's High School was less than 500 feet.
Analysis. 1. Confrontation clause claim. We must decide whether the testimony of the successor, or substitute, surveyor violated the defendant's right under the confrontation clause of the Sixth Amendment to meet and to test evidence submitted in support of her guilt of the school zone violation. Multiple precedents have addressed the application of the right of confrontation to the testimony of substituted analysts of deoxyribonucleic acid (DNA), drug lab technicians, and medical examiners. While the present appeal presents the first challenge to the prosecution's presentation of a substituted surveyor, the accumulated authority of the precedents provides a solution.
a. Standards. The prosecution may not submit inculpatory, testimonial test results, reports, or certifications without presentation of the author of such documentation at trial for cross-examination. Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009). It may not offer at trial the testimony of a substituted analyst in support of laboratory test process and result, even though the substitute witness might be familiar with the process, if the substitute witness had not participated in or performed the test and if he was not offering an independent opinion about the underlying testimonial report not admitted in evidence. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710, 2715–2716 (2011) (plurality opinion); id. at 2722 (Sotomayor, J., concurring opinion) (laboratory report of blood alcohol content offered to support charge of driving while intoxicated).
Conversely, the prosecution may offer the opinion testimony of an expert witness based in part upon the result of a test (results of a vaginal swab for DNA profile evidence in support of a charge of rape) which she had not conducted or observed so long as the prosecution does not introduce the underlying test result itself for its truth but refers to it as an unintroduced and unelaborated basis for the expert witness's opinion. Williams v. Illinois, 132 S.Ct. 2221, 2228, 2240 (2012) ( Williams ) (plurality of four Justices); 2270 (acknowledgment of four dissenting Justices).
The Massachusetts decisions have settled upon the same standard. Commonwealth v. Nardi, 452 Mass. 379, 388–390 (2008) (medical examiner who relies on autopsy reports created by nontestifying examiner may provide an independent opinion of the cause of death); Commonwealth v. Munoz, 461 Mass. 126, 130, 137 (2011), vacated and remanded for further consideration in light of Williams, supra, 133 S.Ct. 102 (2012) (a substitute drug laboratory analyst may testify from the notes and reports of a retired analyst and from machine-generated printouts to his independent opinion of the cocaine composition of a disputed substance so long as he does not testify to the source documents' details and conclusions); Commonwealth v. Greineder, 464 Mass. 580, 581, 592–593 (2013) (substitute expert reviewed the reports of a nontestifying DNA analyst, conducted her own evaluation of the data, and testified permissibly at trial to her own opinion of the data; nothing in the majority reasoning of Williams conflicts with this rationale); Commonwealth v. Reavis, 465 Mass. 875, 882–883 (2013) (substitute medical examiner may offer opinion on cause of death based on autopsy report prepared by nontestifying expert).
In sum, on direct examination an expert witness may provide his or her independent opinion even if it is based upon facts or data created by a nontestifying witness. On direct examination, the expert may not testify to those underlying facts or data contributing to the basis of the opinion. Defense counsel may choose to inquire about those data on cross-examination, but waives the defendant's confrontation objection by that action. Commonwealth v.. Greineder, 464 Mass. at 600.
Counsel will be able to cross-examine the witness about (a) general risks of error in the testing or analytical procedure, and (b) specific risks in the present case. Commonwealth v. Munoz, 461 Mass. at 130–137.
The resulting standard rests upon the premises that the expert's opinion meets the usual requirements of (a) “independent admissibility,” i.e., that the person who observed the facts or created the data could testify to them if available, Commonwealth v. Nardi, 452 Mass. at 389 & n. 11;Commonwealth v. Greineder, 464 Mass. at 583; (b) genuine independence of the expert's conclusion from the underlying but unadmitted facts or data, Commonwealth v. Munoz, 461 Mass. at 136–138;Commonwealth v. Greineder, 464 Mass. at 592; and (c) a meaningful distinction between the underlying facts and the expert opinion, i.e., an interpretation or explanation of the facts or data by the opinion, a value added beyond mere communication of the unintroduced facts or data, Commonwealth v. DelValle, 443 Mass. 782, 791–792 (2005); Commonwealth v. Greineder, supra at 599; Commonwealth v. Reavis, 465 Mass. at 883.
b. Application to substitute surveyor's testimony. As a preliminary matter we note that Koczela's testimony was proper expert opinion evidence because its subject lay beyond the common knowledge or experience of the trier of fact. Commonwealth v. Miranda, 441 Mass. 783, 792–793 (2004). Commonwealth v. Little, 453 Mass. 766, 768 (2009). Koczela testified that the calculation of the distance between the school and the parking lot required entry of angles and distances contained in Galvagni's notes into a coordinate geometry computer program. He explained the computer program as “high school mathematics”: “It takes a sine, then you generate latitudes and longitudes and you can generate coordinate points, and once you know coordinates, you can inverse between two known points and calculate distance.”
While this computation may be “high school mathematics,” it goes beyond the average juror's knowledge. Compare Commonwealth v. Munoz, 461 Mass. at 138 (expert opinion testimony improper where the expert only “performed simple arithmetic well within the jury's grasp,” i .e. subtraction).
As highlighted in cross and redirect examination, no direct line of sight ran between the A–Mart parking lot and St. Joseph's high school, a very common situation. The “high school mathematics” cited by Koczela enabled a surveyor to calculate a distance even when an obstacle blocked the path of a direct measurement.
See Ellis v. Wingate, 338 Mass. 481, 487 (1959) (surveyor's opinion of the position of the property boundary is “a proper subject of expert testimony”); Mercurio v. Smith, 24 Mass.App.Ct. 329, 330–331 (1987) (noting that each party's expert surveyor witness opined that a plan at issue underestimated a specific distance).
Had the original surveyor simply made a direct measurement from the school to the parking lot, we would agree that expert opinion testimony would be improper. A jury would be capable of understanding the significance of a direct measurement from point A to point B. Our case differs. The original surveyor measured various distances and angles, which revealed the distance between the school and the parking lot only after a coordinate geometry computer program performed a mathematical calculation. We call upon jurors to add and subtract. We do not call upon them to perform trigonometry.
Koczela could properly base his opinion on Galvagni's notes. The facts or data within the notes would have been independently admissible through the testimony of Galvagni himself. Commonwealth v. Nardi, 452 Mass. at 389 & n. 11.Commonwealth v. Greineder, 464 Mass. at 582–583. Koczela testified that he regularly used such notes in his daily work. See Commonwealth v. Munoz, supra at 134, quoting from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 527–528 (1986) (“An expert witness offering an independent opinion ... can permissibly rely on data only to the extent that [such] data is ‘reasonably relied upon by experts in the particular field in forming opinions' ”).
Koczela's conclusion was not merely a repetition of, or conduit or channel for, the original surveyor's opinion, as forbidden in Commonwealth v. Munoz, 461 Mass. at 138. It was instead a further, independent, product developed from his review and analysis of the data collected by the original surveyor. It belongs in the line of cases permitting the introduction of such independent conclusions even if they converge with the opinions of the original analyst. Commonwealth v. Nardi, 452 Mass. at 389–390.Commonwealth v. Greineder, supra at 595.
Finally, Koczela's opinion was subject to cross-examination upon the reliability of the underlying data and the formation of his opinion from those data. See ibid. Here defense counsel emphasized by cross-examination that Koczela (1) did not make any measurements himself; (2) did not corroborate Galvagni's work; and (3) did not know exactly the location in the parking lot of the transaction or the point from which Galvani had measured. He also inquired about the methods used by surveyors to measure distances and angles at a site, the nature of surveying as not an exact science but a “craft of art,” and the effect of any obstacles upon the accuracy of the measurement
c. References to the nontestifying surveyor's notes. At several points Koczela or the prosecutor referred to the substance of the original surveyor's notes. The prosecutor asked Koczela, “Did any photographs come up, pictures come up of the A–Mart area and/or St. Joe's?” Koczela replied, “I believe he had a picture of St. Joe.” At another juncture, the prosecutor asked, “What location at A–Mart did you use?” Koczela answered, “There was a point that is somewhere in the parking lot that he had shot—Mr. Galvagni had located previously.” Finally, the prosecutor elicited testimony that Koczela had reviewed the surveying technique employed by Galvagni and had used the same technique himself. Those references to the substance of the nontestifying surveyor's notes should not have come in by direct examination. See Commonwealth v.. Greineder, supra at 601–602. Inquiry into the basis of the expert opinion belonged to the defendant. Id. at 600.
Defense counsel did not object to the cited references. Because they generate a claim of denial of the constitutional right of confrontation, we nonetheless test for error under the standard of harmlessness beyond a reasonable doubt: “whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's verdicts.” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010); or whether the separate properly admitted evidence was “overwhelming” or “so powerful as to nullify any effect” of the tainted evidence upon the fact finder. Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010), and cases cited (quotations omitted). Here the properly admitted evidence of the measurement was strong, and the cited references minor and fleeting. The effect, if any, was harmless beyond a reasonable doubt. See Commonwealth v. Reavis, 465 Mass. at 883–884 (wrongful admission of information from report of absent medical examiner did not create a substantial likelihood of a miscarriage of justice).
2. Late disclosure of inculpatory testimony. The defendant maintains that the Commonwealth's failure to provide timely notice of certain testimony by the undercover buyer, Mandy Moore, violated due process and caused prejudicial harm. The Commonwealth does not dispute that it informed defense counsel only on the first day of trial that Moore would testify that the defendant had been present at multiple prior purchases between Moore and the defendant's husband. However, we conclude that in the circumstances the tardiness did not inflict prejudicial harm. Five factors guide the discretionary determination whether to exclude lately disclosed evidence: “(1) the prevention of surprise; (2) the effectiveness of sanctions less severe than exclusion; (3) evidence of bad faith; (4) prejudice to the other party caused by the testimony; and (5) the materiality of the testimony to the outcome of the case.” Commonwealth v. Giontzis, 47 Mass.App.Ct. 450, 460 (1999), citing Commonwealth v. Chappee, 397 Mass. 508, 518 (1986).
In this instance, (1) the defendant did suffer surprise. (2) As a sanction less severe than exclusion, the judge limited Moore's testimony to the statement that the defendant was present at prior meetings without description of them, and instructed the jury contemporaneously that mere presence at a drug transaction did not constitute a crime but could be evidence of the defendant's knowledge and intent during the charged transaction. (3) The prosecutor learned of the evidence on the day of trial; no bad faith concealment occurred. (4) Strong independent evidence supported the relevant charge of the defendant's conspiracy with her husband to sell cocaine to Moore. Moore testified that, after placement of her order with the defendant's husband, the defendant had arrived at the A–Mart, reported that her husband was ill and had directed her to carry out the sale, had given Moore the cocaine in exchange for the fifty dollars, and then driven Moore home. In these circumstances, the information of the defendant's previous accompaniment of her husband had only cumulative, marginal, and not prejudicial, force in support of the conspiracy charge.
3. Sufficiency of the evidence of conspiracy. The defendant contends more generally that the evidence of conspiracy was insufficient. We examine the argument under the standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979): whether “in the light most favorable to the Commonwealth any rational tier of fact could have found the essential elements of the crime beyond a reasonable doubt (emphasis in original). Jackson v. Virginia, 443 U.S. 307, 318–319 (1979).” Conspiracy consists of “a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose.” Commonwealth v. Costa, 55 Mass.App.Ct. 901, 901 (2002), quoting from Commonwealth v. Benson, 389 Mass. 473, 479 (1983), cert. denied, 464 U.S. 915 (1983). Again, Moore's testimony furnished sufficient evidence that the defendant and her husband were acting in concert. The husband took the telephone order; the defendant made the delivery; the cocaine was on the passenger seat; when Moore asked whether it was the merchandise, the defendant answered, “yes.” The defendant accepted the payment.
4. Ineffective assistance of counsel. The defendant argues that her trial counsel performed ineffectively because he did not assert the common law defense that a husband and wife cannot form a conspiracy because they constitute a single legal entity and not separate, autonomous actors. “It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success.” Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
Here, the motion at trial would have had only a minimal chance of allowance. While the Supreme Judicial Court has not directly overruled the common law defense, it has suggested its obsolescence. See Commonwealth v. Beckett, 373 Mass. 329, 330–331 (1977) (assuming the validity of a conviction based on conspiracy between spouses); and Commonwealth v. Pratt, 407 Mass. 647, 654 n. 9 (1990) (assuming without deciding that a husband and wife could form a conspiracy; convictions upheld; no substantial risk of a miscarriage of justice).
5. Police misconduct. Finally, the defendant argues that police employment of an addict for undercover purchases constitutes conduct so offensive as to violate standards of due process under both the Fourteenth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. She argues that the police induced the defendant to conduct the sale in a school zone and to incur the heightened mandatory minimum sentence, and thereby caused a miscarriage of justice.
Nothing in the record indicates that, as a factual matter, the police caused or maintained an addiction of Mandy Moore as a tactic to combat drug trafficking. No precedent supports the contention that the use of a former or present addict for controlled buys negates the criminality of the sale of narcotics to such a consumer. Finally, the only evidence at trial upon the point was that the defendant's husband, not the police, designated the location of the cocaine sale.
Conclusion. For these reasons we affirm the judgments.
Judgments affirmed.