COMMONWEALTH v. DELEON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Michael Deleon, was convicted of distribution of cocaine. On appeal, the defendant claims error in the prosecutor's closing argument, and in the admission of a substitute expert witness's testimony. We affirm.

Background. The key facts are not in dispute for purposes of the arguments raised on appeal. During a drug-related investigation, an undercover Massachusetts State Police trooper, with extensive experience in drug transactions, purchased a white powdery substance from the defendant. An analyst at the Massachusetts State Police crime laboratory tested the substance. At trial, a different analyst, Christine Tyson, who was a supervisor and “forensic scientist III” at the crime laboratory, testified that she had reviewed the information in the file folder associated with the present case, and formed the independent opinion that the substance contained cocaine.

The defense at trial, through cross-examination of the Commonwealth's witnesses and argument, focused on lack of proof beyond a reasonable doubt of distribution of cocaine, and suggested that the Commonwealth witnesses lacked credibility.

Discussion. 1. Closing argument. The defendant contends that the prosecutor improperly vouched for the substitute expert witness by stating that she “very impressively recited the procedures and the mechanics of the tests” and data, and spoke “eloquently.” He also contends that the prosecutor improperly stated that the troopers offered expert opinions that the substance sold by the defendant to the undercover trooper was cocaine.

Although the characterization of the witness's testimony as “eloquent” and “impressive” was perhaps unartful, “the prosecutor's remarks must be viewed in light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial’ ” (citation omitted). Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). Viewed in that full context, the brief, now-challenged references were not “sufficiently significant in the context of the trial to make plausible an inference that the [verdict] might have been otherwise but for the [alleged] error.” Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986). See Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). The prosecutor marshaled the evidence and explained, in response to defense counsel's claim in closing argument that the substitute analyst should not be believed, why her testimony was credible. The comments, viewed as a whole, were grounded in the evidence presented and based upon the witness's actual testimony. See Commonwealth v. Thomas, 401 Mass. 109, 116 (1987) (“Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed”). See also Commonwealth v. Raymond, 424 Mass. 382, 391-392 (1997).

In addition, following the objection to the Commonwealth's closing argument, the judge offered and provided a curative instruction to which the defendant did not object. Furthermore, the judge instructed the jury, myriad times, that they were the sole finders of fact and judges of credibility; that closing arguments are not evidence; and that the jurors' memory controlled, “and not the memory of the lawyers.” See Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012) (“The jury are presumed to have followed [the judge's] instruction”).

Similarly, the prosecutor's statement that the troopers believed the “substance to be cocaine based on their training and experience” did not constitute prejudicial error. First, the prosecutor did not contend that the troopers provided “expert” testimony. Second, the judge instructed that “the only witness offered by the Commonwealth to testify ․ whether the white powder in this matter was a controlled substance was through an expert opinion, Christine Tyson.” Also, the judge provided a clear instruction regarding the jury's consideration of the expert witness's testimony. Here again, the prosecutor's isolated statement, viewed in context of the entire closing argument, did not constitute prejudicial error. See Thomas, 401 Mass. at 115.

2. Substitute expert testimony. The defendant also argues that the unobjected-to admission of the substitute expert witness's testimony was error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We disagree. The Commonwealth followed the protocol set forth in Commonwealth v. Grady, 474 Mass. 715 (2016), and Commonwealth v. Greineder, 464 Mass. 580, cert. denied, 571 U.S. 865 (2013), for the admission of a substitute expert witness's testimony. The expert here testified to the procedures and protocols utilized by the crime laboratory to analyze and identify the contents of a substance, and properly testified to her own independent conclusion that the substance contained cocaine. In addition, defense counsel had the opportunity to conduct a full and fair cross-examination of the expert witness, which he used in support of his closing argument. Compare Commonwealth v. Jones, 472 Mass. 707, 715-717 (2015).

Finally, contrary to the defendant's claim on appeal, we do not agree that a substitute expert may only testify and provide an expert opinion if he or she reviewed the underlying data at the precise time that the initial expert conducted the underlying tests. See Grady, 474 Mass. at 724. While the circumstances surrounding the substitute expert's review of the underlying data may be one of several factors that the jury may consider in evaluating the substitute expert's testimony, see id., our cases have never held that contemporaneous review of the initial expert's testing is a stand-alone prerequisite for admissibility.

Judgment affirmed.