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COMMONWEALTH v. SOUTHER (2021)

Appeals Court of Massachusetts.

COMMONWEALTH v. Brian S. SOUTHER.

19-P-1254

Decided: April 08, 2021

By the Court (Milkey, Kinder & Sacks, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of three counts of distribution of fentanyl in violation of G. L. c. 94C, § 32. On appeal, the defendant claims that the judge erred when he admitted (1) evidence of the defendant's prior bad acts, (2) the expert opinion of a substitute chemist, and (3) photographs of the fentanyl in lieu of the fentanyl itself. We affirm.

Background. The Salisbury Police Department began investigating the defendant's drug distribution activities in the summer of 2016. As part of that investigation, the police conducted surveillance of the defendant on multiple occasions in the months prior to his arrest in November. The defendant was arrested following the last of three hand-to-hand sales of fentanyl to an undercover police officer in which he participated either alone or with his cousin, Glendon Eaton. The police seized three additional bags of fentanyl from the defendant's person following his arrest. A subsequent search of the defendant's residence, unit 1B Sandpiper Way, Salisbury (condominium), resulted in the seizure of drug packaging material including glassine bags, plastic straws, a digital scale with fentanyl residue, and a firearm.2

Discussion. 1. Prior bad acts. The defendant filed a motion in limine seeking to exclude testimony from surveillance officers about their observations of the defendant on June 1, August 30, and September 8 of 2016, claiming that the observations constituted inadmissible evidence of the defendant's prior bad acts. The judge denied the motion in part,3 allowing the Commonwealth to present evidence that the defendant departed from his condominium on June 1, 2016, traveled to a liquor store in a Ford Escort, and “ma[d]e contact with another party in a vehicle.” The judge also permitted testimony that, on August 30, 2016, the defendant left the condominium, met with a man at the rear of a black Chevrolet pickup truck (pickup truck), “exchanged something,” and then drove off with the man in the pickup truck.

At trial, the Commonwealth presented other testimony that the defendant now characterizes as “prior [bad] act evidence.” The jury heard that the defendant was a passenger in a vehicle stopped on September 5, 2016, for making an illegal U-turn. At the time, the defendant had a “large money roll of cash in his front pocket.” The next day, the defendant was seen leaving the condominium with another man and driving off in the pickup truck. On November 23, 2016, the defendant and Eaton arrived at the condominium in the pickup truck, entered and departed the condominium, traveled to Newburyport, met with an unknown male, and engaged in a “hand-to-hand movement.” Because this evidence of the defendant's prior conduct was not specifically referred to in the motion in limine and was not objected to at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Grady, 474 Mass. 715, 720-721 (2016).

Evidence of prior bad acts may not be introduced for purposes of showing the accused's bad character or propensity to commit the crimes charged, but may be admissible for other purposes. For example, evidence of prior bad acts may be admitted to prove “a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2) (2021). However, “[e]ven if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). The determination whether the evidence is relevant and more probative than prejudicial is “committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent ‘palpable error.’ ” Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting Commonwealth v. Fordham, 417 Mass. 10, 23 (1994).

Here, the testimony regarding the defendant's activities in the summer of 2016 was relevant for reasons unrelated to his character. First, each of the November distributions for which the defendant was convicted involved drug sales directly from the pickup truck. The surveillance evidence was probative of the defendant's association with that vehicle. Second, the testimony established the defendant's connection to the condominium where drug paraphernalia was later seized. Finally, the defendant's acts described by the surveillance officers were probative of the defendant's intent to distribute fentanyl, an element that the Commonwealth was obligated to prove. See Commonwealth v. Gollman, 436 Mass. 111, 114 (2002). For these reasons, we discern no abuse of discretion in the judge's conclusion that the prejudicial impact of the testimony outlined in the motion in limine did not outweigh its probative value.

We agree with the defendant that the testimony describing the traffic stop on September 5, 2016, had little probative value. The defendant's possession of a large “roll of cash” was not linked to any criminal conduct and was unrelated to the November distributions. We also agree that testimony regarding the hand-to-hand movement on November 23 appears to have exceeded the bounds of the judge's order excluding testimony that the observed activity was “consistent with a ‘hand-to-hand’ transaction.” However, this evidence was not referred to in the motion in limine, was not objected to at trial, and no limiting instruction was requested. The judge was not required to give one sua sponte. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). In light of the strength of the other evidence against the defendant, we do not have “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LaFave, 430 Mass. 169, 174 (1999). There was no substantial risk of a miscarriage of justice.

2. Substitute chemist. Andrea Margareci, a chemist at the State police crime laboratory, tested all the substances purchased by the undercover police officer from the defendant and Eaton. Another chemist, Brittany Walker, tested residue found on a digital scale seized from the defendant's residence. However, Walker no longer worked for the State police at the time of trial. Over the defendant's objection, the judge permitted Margareci to offer an opinion, based on her review of the notes and data in the file prepared by Walker, that the residue from the scale was fentanyl. On appeal, the defendant argues that the judge's ruling violated his constitutional right to confront Walker.

A substitute analyst may testify in place of the actual analyst provided that the testifying analyst “reviewed the nontestifying analyst's work, ․ conducted an independent evaluation of the data, and then ‘expressed her own opinion, and did not merely act as a conduit for the opinions of others.’ ” Commonwealth v. Greineder, 464 Mass. 580, 595 (2013), quoting Commonwealth v. Greineder, 458 Mass. 207, 236 (2010). There is no confrontation clause violation from a substitute analyst's testimony as long as (1) the expert does not present on direct examination the original analyst's test results, and (2) the defendant has an opportunity to “meaningfully cross-examine[ ] [the expert] about the reliability of the underlying data.” Greineder, 464 Mass. At 591.

Here, Margareci testified on direct examination that she reviewed the file prepared by Walker, that Walker performed the “UV and GC-MS tests,” and that, based on her review of the data and notes in the file, her own conclusion was that the tested substance tested was fentanyl. Margareci's disclosure on direct examination of the tests performed by Walker, followed immediately by her own opinion based on a review of Walker's “data and notes,” came close, at least implicitly, to improperly parroting Walker's opinion. However, because Margareci did not directly disclose any of Walker's data, test results, opinions, or conclusions, we are not persuaded that it crossed the line. See Commonwealth v. Chappell, 473 Mass. 191, 202 (2015).

Relying on Commonwealth v. Jones, 472 Mass. 707 (2015), the defendant argues that he could not meaningfully cross-examine Margareci regarding the method Walker used to collect the residue from the scale. In Jones, the Supreme Judicial Court ruled that it was error to allow an expert witness to testify to her “understanding” of how certain swabs had been taken by a nurse during a “rape kit” examination that the expert did not attend. Id. at 714-715. The court left “for another day the question whether evidence concerning the collection of swabs could be admitted through the testimony of a person who lacks personal knowledge of the specific ․ examination, but who is familiar with the general procedures and protocols ordinarily employed at a given facility.” Id. at 717 n.3. Here, Margareci was not present for the extraction of the residue from the scale, but as a supervisory forensic chemist who had worked at the State police crime laboratory for over eleven years, she was familiar with the collection practices in the laboratory generally, and could have addressed those on cross-examination. On cross-examination, however, she was not asked about general procedure and protocols in the laboratory. Rather, she was only asked how she “would take residue off an item like a scale,” which she then explained. In these circumstances, we are not persuaded that the defendant was deprived of his right to meaningfully cross-examine Margareci.

Even if we were to conclude that Margareci's testimony as a substitute chemist should not have been admitted, any such error was harmless beyond a reasonable doubt. See Commonwealth v. Fluellen, 456 Mass. 517, 526 (2010) (confrontation clause violation reviewed for harmlessness beyond a reasonable doubt). The chemical composition of the residue on the scale was a small piece of the evidence presented at trial and was not directly probative of the charged offenses. By contrast, the direct evidence that the defendant participated in hand-to-hand sales of fentanyl was compelling. On November 23, the undercover officer requested an additional gram of fentanyl and the defendant explained that “their shit was at home.” Eaton then “pulled out his own stash and eyed out a gram,” which the defendant handed to the officer in exchange for eighty dollars. After a hand-to-hand sale between the defendant and the undercover officer on November 30, the defendant thanked the officer for his business. The defendant did not challenge Margareci's conclusion that each of the substances sold to the undercover officer on these occasions contained fentanyl. Based on the strength of this evidence, we are satisfied beyond a reasonable doubt that Magareci's testimony regarding the chemical composition of the residue from the scale did not contribute to the guilty verdicts. See Commonwealth v. Vasquez, 456 Mass. 350, 360-361 (2010).

3. Photographs of the fentanyl. To protect court personnel and jurors from the danger of exposure to fentanyl, the Trial Court adopted a policy that provides, “[p]arties who seek to present the appearance of a substance containing fentanyl or carfentanil to a fact finder must do so through means other than introduction of the actual substance, such as a stipulation, photographs, video, or witness testimony.” Pursuant to this policy, photographs of the fentanyl purchased from the defendant were introduced in evidence over the defendant's objection. On appeal, the defendant claims that introduction of the photographs was structural error because it deprived him of his right to confront witnesses. We are not persuaded that the defendant's right to confront witnesses against him was infringed.

“The confrontation clause bars the admission of testimonial out-of-court statements by a witness who does not appear at trial.” Commonwealth v. Irene, 462 Mass. 600, 617 (2012). Here, the undercover officer who purchased tentanyl from the defendant testified regarding those transactions, and that the amounts he purchased from the defendant and Eaton were weighed, photographed, and placed in evidence. The officer who took those photographs also testified. Both officers testified that the photographs depicted the substances purchased from the defendant. Both were subject to cross-examination. In these circumstances, we see no violation of the confrontation clause.4

Judgments affirmed.

FOOTNOTES

2.   The defendant was charged with, but ultimately acquitted of, the illegal possession of that firearm.

3.   The judge allowed the defendant's motion in limine to exclude evidence of his arrest on September 8, 2016, for operating a motor vehicle after suspension.

4.   The defendant's remaining argument regarding the chain of custody generally goes to the weight of the evidence and not its admissibility. See Commonwealth v. Herring, 66 Mass. App. Ct. 360, 366 (2006).

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COMMONWEALTH v. SOUTHER (2021)

Docket No: 19-P-1254

Decided: April 08, 2021

Court: Appeals Court of Massachusetts.

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