COMMONWEALTH v. VINCENT GRANT (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant, Vincent Grant, of trafficking eighteen to thirty-six grams of cocaine.¹ He appeals, arguing that the conviction must be vacated because his confrontation right under the Sixth Amendment to the United States Constitution, also protected by art. 12 of the Massachusetts Declaration of Rights, was violated by the admission of testimonial hearsay through a substitute chemist. See Commonwealth v. Gordon, 496 Mass. 554, 560 & n.10, 587-588 (2025). The defendant also contends that a judge erred by denying his motion to suppress evidence seized pursuant to a search warrant and that the evidence of the weight of the drugs was insufficient to prove trafficking. We vacate the defendant's conviction based on the use of the substitute chemist and remand the case to allow for a new trial, should the Commonwealth choose to pursue one. To the extent the Commonwealth elects to retry the defendant, we discern no error in the order denying the defendant's motion to suppress and conclude that the trial evidence was sufficient to support the defendant's conviction for trafficking, eighteen to thirty-six grams.

Discussion. 1. Substitute chemist testimony. “The right of a defendant in a criminal trial to be confronted with the witnesses against him or her, which is enshrined in the Sixth Amendment to the United States Constitution, limits the prosecution's ability to introduce statements made by persons not in the court room.” Gordon, 496 Mass. at 560. “The right, however, does not extend to all out-of-court statements; to fall within its ambit, the out-of-court statement (i) must be admitted to prove the truth of the matter asserted (that is, the statement must be hearsay), and (ii) must be testimonial.” Id. at 560-561. Moreover, “the prohibition against testimonial hearsay applies in full to forensic evidence” (quotation and citation omitted). Id. at 561. Therefore, the confrontation clause bars a substitute analyst's testimony that “depends on” the notes of a nontestifying analyst. Id. at 575 n.25. Where a defendant objects to such testimony, a new trial is required unless we are satisfied that the erroneously admitted evidence had little or no effect on the verdict. See id. at 584-585.

Here, the Commonwealth established that the items seized from the premises were cocaine through a chemist who did not test the substance but testified to the results documented by another chemist. In light of Gordon, 496 Mass. at 587-588, the Commonwealth concedes that this testimony was erroneously admitted and vacatur of the defendant's conviction is required. We conclude that the testimony of the substitute chemist was not harmless beyond a reasonable doubt and thus agree that the defendant's conviction must be vacated. Because the Commonwealth is permitted to retry the defendant, we will address the remaining issues.

2. Motion to suppress. The defendant argues that the evidence obtained through the search of a residence shared by the defendant and a codefendant ² (premises) should be suppressed, because the warrant for the search failed to establish probable cause and included unjustified nighttime and no-knock authorizations. We disagree.

a. Probable cause. “Whether a search warrant is supported by probable cause ‘is a question of law that we review de novo.’ ” Commonwealth v. Vasquez, 482 Mass. 850, 866 (2019), quoting Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). “That review begins and ends with the four corners of the affidavit” (quotation and citation omitted). Commonwealth v. Defrancesco, 99 Mass. App. Ct. 208, 211 (2021). “The basic question for the magistrate, when evaluating an affidavit supporting an application for the issuance of a search warrant, is whether there is a substantial basis on which to conclude that the articles or activity described are probably present or occurring at the place to be searched.” Commonwealth v. Spano, 414 Mass. 178, 184 (1993). A “controlled buy” of narcotics is generally sufficient to provide probable cause to search if it meets the following criteria:

“(1) a police officer meets the informant at a location other than the location where is it suspected that criminal activity is occurring; (2) the officer searches the informant to ensure the informant has no drugs on his person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant to the premises where it is alleged illegal activity is occurring and watches the informant enter and leave those premises; and (4) the informant turns over to the officer the substance the informant has purchased from the residents of the premises under surveillance.”

Commonwealth v. Desper, 419 Mass. 163, 168 (1994).

Here, the police applied for a warrant to search the premises for evidence that the defendant and codefendant were selling cocaine. The application was supported by an affidavit. The affidavit included descriptions of three controlled buys in which officers (1) met the informant at a prearranged location other than the premises; (2) searched the informant and provided the informant with cash; (3) established a nearby surveillance post to observe the informant waiting at the transaction location, the defendant or codefendant arriving at the transaction location, and the informant briefly leaning into the defendant's or codefendant's vehicle before the vehicle drove away; and (4) retrieved drugs from the informant after the transaction. Moreover, although the defendant does not challenge the nexus between the drug activity and the premises, we note that the affidavit states that, for each of the controlled buys, police watched the defendant or codefendant leave the premises, travel directly to the prearranged transaction location to meet the informant without making “any intermediate stops,” sell drugs to the informant, and return directly to the premises. Because the affidavit established that the proper protocols were met for each of the controlled buys, we conclude that it established probable cause to search the premises. See Desper, 419 Mass. at 168.

b. No-knock and nighttime features. “In order to justify suspension of the knock and announce requirement, the Commonwealth must establish that there is probable cause to believe that, in the particular circumstances of the search to be undertaken, evidence will be destroyed or officer safety put at risk if the rule is observed.” Commonwealth v. Jimenez, 438 Mass. 213, 216 (2002).

The affidavit articulated concerns as to both evidence destruction and officer safety. It described the property layout and specified that several windows on the front of the premises facing the driveway gave occupants a clear view of approaching officers. The affidavit also articulated how drugs are quickly and easily destroyed. Importantly, the affidavit highlighted potential danger to officers based on information that the defendant and codefendant were known to have had firearms licenses and the codefendant had a handgun registered in her name at the time. The defendant's license to carry firearms had been suspended about two months earlier for brandishing a pistol and threatening to shoot someone, which certainly did not lessen safety concerns. See Jimenez, 438 Mass. at 220 (history of weapons possession or violence relevant for no-knock warrant). The same circumstances that supported the no-knock aspect also provided probable cause to justify the nighttime execution feature of the warrant. See Commonwealth v. DiStefano, 22 Mass. App. Ct. 535, 543 (1986).

3. Sufficiency of evidence. The defendant further contends that there was insufficient evidence to establish that the drugs weighed eighteen grams or more. He asserts that, to the extent the case is remanded, he can be retried for, at most, possession of cocaine with intent to distribute. We disagree.

We review the evidence in the light most favorable to the Commonwealth to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). “The inferences that support a conviction need only be reasonable and possible; [they] need not be necessary or inescapable” (quotation and citation omitted). Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018).

At trial, the Commonwealth presented evidence that drugs were found in a single bedroom occupied by both the defendant and codefendant. Approximately seventeen grams of cocaine and various drug paraphernalia were found in a nightstand to the left of the bed, along with identification, mail, and a prescription bottle, all bearing the defendant's name. Another seven grams of cocaine and more drug paraphernalia were discovered in an entertainment center near the nightstand. Finally, 375 grams of cocaine were located in a locked file cabinet to the right of the bed. Although the file cabinet contained identifying information primarily linked to the codefendant, keys to open it were kept in the jointly occupied bedroom.

The defendant argues that the verdict on the lesser offense of trafficking in eighteen to thirty-six grams of cocaine means that the jury must have concluded that the defendant did not possess the larger quantity of drugs found in the file cabinet. However, we examine sufficiency at the close of the evidence, not in light of the jury's verdict. See Commonwealth v. Wurtzberger, 496 Mass. 203, 205 n.7 (2025). Viewing the evidence in the light most favorable to the Commonwealth, a rational trier of fact could have concluded beyond a reasonable doubt that the defendant and codefendant jointly ran a drug distribution operation and constructively possessed all the drugs found in their shared bedroom. See Commonwealth v. Carrillo, 483 Mass. 269, 291-292 (2019) (defendant with control over distribution of drugs can be guilty of possession with intent to distribute, even without exclusive physical possession of drugs).

Even if we were to eliminate from our consideration the 375 grams of cocaine found in the file cabinet, the defendant's argument is unavailing. The remaining drugs were packaged in six “corner-cut” sandwich baggies with a combined weight of twenty-four grams, including the baggies. A detective testified that corner-cut baggies weigh approximately one to two grams. If the jury assigned a weight to each of the corner cut baggies at the minimum limit of one gram and subtracted the six gram minimum aggregate weight of the baggies from the total weight of twenty-four grams, the drug weight would be sufficient to support a conviction of trafficking in eighteen to thirty-six grams of cocaine.³

Conclusion. In sum, we conclude that the evidence was sufficient but that we must vacate the judgment and set aside the verdict given the improper testimony of the substitute chemist. Should the Commonwealth choose to retry the defendant, we further note that the motion to suppress was properly denied.

Judgment vacated.

Verdict set aside.

FOOTNOTES

1.   The indictment charged trafficking 200 grams or more, but the jury convicted the defendant of the lesser-included offense. The Commonwealth filed a nolle prosequi after jury empanelment on a second indictment charging conspiracy.

2.   The codefendant's conviction has been vacated, and she is not a party to this appeal.

3.   The defendant argues that testimony about the weight of the drugs was unreliable because the detective could not verify the accuracy of the scale he used. However, any such deficiency goes to the admissibility of the evidence. See, e.g., Commonwealth v. Podgurski, 81 Mass. App. Ct. 175, 185-186 (2012). Our sufficiency analysis involves a consideration of all evidence admitted, regardless of whether it was admitted properly. See Commonwealth v. Davis, 487 Mass. 448, 462 (2021).