COMMONWEALTH v. MISAEL SANCHEZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted by a Superior Court jury of manslaughter while operating under the influence of intoxicating liquor (OUI), G. L. c. 265, § 13-1/2, killing Christopher Martin, the defendant appeals. He argues that the testimony of a substitute expert witness about his blood alcohol level was admitted in violation of the confrontation clause because it relied on testimonial hearsay generated by a nontestifying analyst. See Commonwealth v. Gordon, 496 Mass. 554, 575 & n.25 (2025). The Commonwealth concedes that the testimony was admitted erroneously, but argues that the error was harmless beyond a reasonable doubt because the other evidence of the defendant's impairment was strong and the jury did not convict based on the theory that the defendant's blood alcohol level was 0.08 percent or greater. Because we cannot conclude that the hearsay evidence of the blood alcohol level was harmless beyond a reasonable doubt, we vacate so much of the conviction as alleged that the defendant was under the influence of intoxicating liquor.

Background. In Springfield at about 4:40 A.M. on August 4, 2018, Nancy Currier was driving southbound in the right lane of Parker Street, a two-way street with two lanes going in each direction. The road was dry and clear, and the speed limit was thirty-five miles per hour. A black Acura driven by the defendant sped past Currier in the left lane at about eighty miles per hour. A short distance away, there is a traffic light where Parker Street intersects Sunset Terrace.

Driving a Toyota Avalon eastbound on Sunset Terrace, the victim was taking a left turn onto Parker Street, crossing the southbound lanes to head north. The defendant entered the intersection at about sixty-five miles per hour. In the right southbound lane on Parker Street, the front of the defendant's Acura hit the side of the victim's Toyota in a “T-bone” collision.

Joshua Betancourt, a resident of Sunset Terrace, heard a “[s]uper loud metallic bang” and ran to the intersection. The Acura was in the right southbound lane of Parker Street facing northeast and had heavy front-end damage. The defendant was trying to get out of the Acura's driver's seat. While helping him, Betancourt smelled alcohol. The defendant asked Betancourt to help him get rid of a cardboard box of beer that was in the car, but Betancourt refused. The defendant tried to start the Acura, but it would not start.

Currier arrived at the intersection and checked to see if the defendant was hurt. When the Acura's door opened, beer bottles fell out and Currier smelled beer. After asking Currier to help him discard beer bottles, the defendant threw at least one beer bottle to the side of the road.

Officer Timothy Martin was the first officer to arrive at the scene. The Toyota was up against a house on the opposite side of Parker Street and had heavy damage to its driver's side. The victim was unconscious, had no pulse, and was pinned inside the Toyota. Officer Martin tried unsuccessfully to resuscitate the victim.

After paramedics arrived, Officer Martin went to the Acura, where the defendant was sitting in the driver's seat, crying and eating a cheeseburger. Officer Martin smelled an odor of alcohol emanating from the defendant. Nearby on the side of the road was a broken bottle and a twelve-pack box containing cold bottles of Sierra Nevada India pale ale.

First responders extricated the victim from the Toyota and transported him to a hospital, where he was pronounced dead. An autopsy later revealed that the victim had died of multiple blunt force injuries to areas of his body including his head, chest, and pelvis.

The defendant was taken to the hospital and treated for a head injury. His medical records noted that he was “clinically intoxicated,” as a result of which a scan of his cervical spine was postponed.¹

Springfield Police Officer Robert Kalin testified as a crash reconstructionist, analyzing information from the Acura's crash data retrieval system. The data showed that, four seconds before impact, the Acura was traveling at ninety-three miles per hour. The Acura's brakes were not applied until three seconds before impact, when it was about 417 feet away from the Toyota. At the moment of impact, the Acura was traveling at sixty-five miles per hour. The defendant's reaction time was about two seconds, which was “[p]retty much average” for nighttime driving. Officer Kalin was not able to determine the color of the traffic light when the defendant's Acura entered the intersection, but he opined that fact was not important because of the speed of the Acura.

Pursuant to a search warrant, police obtained vials of the defendant's blood from the hospital and delivered them to the State police crime laboratory, where analyst Hilary Griffiths tested them by performing an alcohol diffusion test, which forensic scientist Hannah Knowles personally witnessed. Griffiths also tested the blood samples using a gas chromatograph flame ionization detector (GCFID), which Knowles did not witness. Because Griffiths was on medical leave at the time of trial, Knowles testified as a substitute expert based on Griffiths's report. Based on her review of the GCFID test results generated by Griffiths, Knowles opined that the concentration of alcohol in the defendant's blood was 0.208 and 0.207 percent.

The defendant called forensic toxicologist Patrick Demers, who opined that the testing on the blood samples taken from the hospital was not reliable because they were packaged in vials designed for clinical use and not forensic testing.

The judge instructed the jury to consider two theories of manslaughter while OUI: (1) that the defendant was under the influence of intoxicating liquor, and (2) that the percent of alcohol in his blood was 0.08 or greater. The jury convicted the defendant of manslaughter while OUI on the former theory, and not the latter theory. The defendant appeals.

Discussion. The Commonwealth concedes that Knowles's testimony as a substitute expert was admitted in error. Gordon, 496 Mass. at 575 & n.25. See also Mass. G. Evid. §§ 703, 705 (2026). We agree with that concession and turn to the question whether the erroneous admission of Knowles's testimony was harmless beyond a reasonable doubt. See Commonwealth v. Bohigian, 486 Mass. 209, 219 (2020).

“An error may be considered harmless when other properly admitted evidence of guilt is so overwhelming as to nullify any effect that the improperly introduced evidence might have had on the outcome” (quotation and citation omitted). Commonwealth v. Ramsey, 466 Mass. 489, 494 (2013). In evaluating whether the admission of evidence was harmless beyond a reasonable doubt,

“we examine factors such as ‘the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.”

Id., quoting Commonwealth v. Mendes, 463 Mass. 353, 359 (2012).

a. Manslaughter while OUI. To prove manslaughter while OUI, the Commonwealth was required to establish that the defendant caused the victim's death and intentionally drove the Acura in a wanton or reckless manner while under the influence of intoxicating liquor. See Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 40 (2016). “[I]n a prosecution for OUI, the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely” (quotation and citation omitted). Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (2016).

The Commonwealth contends that the evidence of the concentration of alcohol in the defendant's blood was merely cumulative of other evidence of his intoxication. We agree that the Commonwealth's proof of the defendant's intoxication did not depend solely on the testimony of the substitute expert. Contrast Bohigian, 486 Mass. at 219 (Commonwealth exclusively relied on blood alcohol test to prove OUI). Officer Martin and the two civilian witnesses each smelled alcohol on the defendant. Just after the crash, the defendant discarded beer bottles. The defendant's medical records documented that he was “clinically intoxicated.” However, there was no evidence that the defendant performed field sobriety tests or made any admissions that he had drunk alcohol.

Here, Knowles's testimony that the defendant's blood alcohol concentration was 0.207 “provided the strongest proof that the defendant was intoxicated at the time of the accident.” Bohigian, 486 Mass. at 219. Although defense counsel tried to undermine the impact of that evidence by presenting expert testimony that the tests on the blood were unreliable, and the jury did not convict on the theory that the defendant's blood alcohol level was 0.08 or greater, that numerical evidence was powerful proof of intoxication. Indeed, the prosecutor began his closing argument by saying, “93 miles an hour and a 0.207 blood alcohol level. That's what this case is about.” In both his opening statement and closing argument, the prosecutor emphasized the results of the GFCID test, repeatedly referring to that 0.207 result.

On the charge of manslaughter while OUI, “the most inculpatory piece of evidence against the defendant,” Commonwealth v. Hallinan, 491 Mass. 730, 750 (2023), was the numerical evidence of the concentration of alcohol in his blood that was based on the substitute expert's testimony to the GCFID test results from the nontestifying analyst. In those circumstances, we conclude that the erroneous admission of that evidence was not harmless beyond a reasonable doubt. Cf. id. at 750-751 (breathalyzer test obtained through government misconduct was “crown jewel” of Commonwealth's case, despite evidence that defendant smelled of liquor, had red and glassy eyes, slurred speech, and failed field sobriety tests). We conclude that the Commonwealth has not shown that the erroneously admitted evidence “did not influence the jury, or had but very slight effect” (quotation and citation omitted). Commonwealth v. Dargon, 457 Mass. 387, 399 (2010). Therefore, so much of the conviction as pertained to the proof of the defendant's intoxication must be reversed.

b. Lesser included offense of manslaughter. The Commonwealth argues that, if we conclude that the improperly admitted evidence was not harmless beyond a reasonable doubt, we should nonetheless affirm so much of the conviction as alleged the lesser included offense of involuntary manslaughter. The Commonwealth asks that we remand the case to the Superior Court for resentencing on the lesser included offense, see Commonwealth v. Desiderio, 491 Mass. 809, 823 (2023), or, if the Commonwealth so chooses, retrial on the indictment for manslaughter while OUI, see Gordon, 496 Mass. at 585 n.34.

To prove involuntary manslaughter, the Commonwealth was required to establish that “the defendant caused an unintentional death [ ] during the commission of an act amounting to wanton or reckless conduct ․” (quotation and citation omitted). Commonwealth v. Degro, 432 Mass. 319, 331 (2000). Wanton or reckless conduct may be proven by an objective standard, i.e., “based on what a reasonable person should have known under the circumstances.” Guaman, 90 Mass. App. Ct. at 40.

Although the hearsay evidence of the GCFID results was improperly admitted, there was ample other evidence that the defendant had drunk some alcohol. There was also uncontested scientific evidence that, four seconds before impact, the defendant was driving ninety-three miles per hour in a thirty-five mile per hour zone. That was overwhelming evidence of wanton or reckless conduct, even absent evidence of whether the traffic light was red when the defendant entered the intersection. The improperly admitted hearsay evidence of the GCFID test results did not affect the involuntary manslaughter conviction. See Commonwealth v. Njuguna, 495 Mass. 770, 781 (2025) (at bench trial for manslaughter while OUI, judge properly convicted defendant of lesser-included offense of involuntary manslaughter); Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 21-23 (2011) (deficient proof of OUI element required reversal of alcohol-related crimes, but involuntary manslaughter affirmed).

Conclusion. The judgment is vacated and the verdict is set aside. Because there was ample evidence of the lesser included offense of involuntary manslaughter, the Commonwealth, on remand, may move for sentencing on that lesser included offense or seek to retry the defendant for manslaughter while OUI. The matter is remanded to the Superior Court for further proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

1.   There was no evidence at trial of the meaning of the term “clinically intoxicated.”