COMMONWEALTH v. BUSUITO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant, Eric Busuito, of distributing a class A substance, G. L. c. 94C, § 32 (a). On appeal, he contends that the judge committed reversible error by admitting two statements made by a man named Shane Perry to Detective Brian Langelier of the Marlborough Police Department and a “screen shot” of Perry's cell phone in violation of the rule against hearsay and the defendant's confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.² The Commonwealth concedes that admission of Perry's statements (but not the screen shot) constitutes reversible error as a violation of the defendant's confrontation rights. Because we conclude that Perry's statements and the cell phone screen shot were inadmissible under the rule against hearsay and their admission constitutes prejudicial error, we reverse the judgment.

Discussion. “In circumstances in which the Commonwealth offers out-of-court statements made by a declarant who does not testify at trial, both the rule against hearsay and the confrontation clause come into play and require a ‘two-step inquiry.’ ” Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018), quoting Commonwealth v. Simon, 456 Mass. 280, 295 (2010). If we conclude that the statements are inadmissible under the rule against hearsay, we need not address the confrontation issue. See Commonwealth v. Irene, 462 Mass. 600, 616 (2012).

Here, Langelier observed the defendant and Perry interacting in a parking lot. Although he did not see them exchange any items, he believed their interaction was a “hand-to-hand narcotics transaction.” Soon thereafter Langelier stopped and spoke with Perry, discovering drugs in his wallet. During this interaction, Langelier elicited the two challenged statements and obtained the screen shot. In the first challenged statement, Perry told Langelier he had received drugs from “Mr. E.” The screen shot taken from Perry's cell phone confirmed that he had called a “Mr. E” just before Langelier observed the defendant approach Perry. Later testimony revealed that “Mr. E” was the defendant. In the second challenged statement, Perry told Langelier he bought drugs “from Eric.” The defendant unsuccessfully moved in limine to exclude Perry's statements to Langelier and objected to the admission of both statements and the screen shot during Langelier's direct examination. Perry never testified.

Because they were out-of-court statements offered for their truth, both statements and the screen shot depiction are hearsay.³ See Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001). Neither fall into any exception to the hearsay exclusion rule. Additionally, Perry's statements were not admissible as statements of the defendant's coconspirator, as there was no evidence that Perry and the defendant were engaged in a conspiracy. See Commonwealth v. Doty, 88 Mass. App. Ct. 195, 204 (2015), quoting United States v. Izzi, 613 F.2d 1205, 1210 (1st Cir. 1980) (“A single sale of drugs without more does not establish a conspiracy”).

Because the defendant timely objected to the admission of this evidence, we review for prejudicial error. See Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 680 (2011). An error is not prejudicial “if we are sure that the error did not influence the jury, or had but very slight effect.” Id., quoting Commonwealth v. Graham, 431 Mass. 282, 288, cert. denied, 531 U.S. 1020 (2000).

Here, we cannot conclude that Perry's statements to Langelier did not influence the jury. Although Langelier testified that the defendant and Perry engaged in what appeared to be a narcotic transaction, Perry's statements were the only evidence that the defendant was the seller and Perry the buyer. Without such evidence, the jury could not find that the defendant distributed the drugs discovered on Perry.

Conclusion. The judgment is reversed and the verdict is set aside.

So ordered.

FOOTNOTES

2.   The defendant also contends that the prosecutor misstated the evidence during his closing argument. Because we reverse on other grounds, and such a misstatement is unlikely to reoccur during a potential subsequent trial, we do not address this issue. See Edinburg v. Merry, 11 Mass. App. Ct. 775, 778-779 (1981).

3.   The Commonwealth's assertion that the screen shot depiction is not a hearsay statement is unavailing. It is commonly understood that a cell phone owner would be the person assigning the contact name to the telephone numbers stored in his or her cell phone, and thus, the screen shot depiction was a pictorial statement of Perry's claim that the person he dialed was “Mr. E.”