Opinion
14-P-1404
01-21-2016
COMMONWEALTH v. FELIX GUERRERO AYBAR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of distribution of heroin. He appeals, challenging the opinion testimony of two police officers and the sufficiency of the evidence. We affirm.
Background. On September, 22, 2006, Detectives Moynihan and Mejia of the Lawrence police department's street narcotics enforcement unit were conducting surveillance in the Park Street area of Lawrence, a residential area with high crime, including significant illegal drug activity. The detectives observed the defendant drive past a bicyclist known to the detectives as a heroin user. The defendant then pulled over, and the bicyclist pulled up alongside the passenger window. From a distance of about three or four car lengths back, the detectives observed the bicyclist and the defendant engage in an extremely brief conversation before the bicyclist removed money from his pocket and handed it through the window to the defendant. The defendant then handed the bicyclist an item that the bicyclist put in a pocket near his chest. The detectives could not see what the defendant handed the bicyclist.
The defendant and the bicyclist then went in separate directions. The detectives followed the defendant and approached him after he parked and was exiting his vehicle. In following the defendant, the detectives had lost sight of the bicyclist. However, while the officers were speaking with the defendant, and roughly two minutes after the exchange at the vehicle's window, the same bicyclist pedaled right up to the spot where the detectives and the defendant were stopped.
The detectives stopped the bicyclist, searched him, and recovered a cellular telephone (cell phone) and a small bag of heroin from the same pocket where the bicyclist had previously placed the item he received from the defendant. A booking search of the defendant yielded a cell phone and $485 in cash, in different denominations located in different pockets. No drugs were recovered from the defendant.
Two chemists testified that the substance recovered was heroin. The defendant does not challenge this element on appeal.
Discussion. 1. Opinion testimony. On direct examination, Detective Moynihan testified, "In my training and experience, I believed I had just witnessed a street-level drug transaction." Mejia testified similarly, stating that he "thought that a drug transaction just occurred" based on his training and experience. Both detectives also testified that the manner in which the defendant kept cash in his pockets was significant because it is a common practice among street-level drug dealers.
The Commonwealth has moved to expand the record to include the incident report prepared by the police. Even though the defendant did not file any opposition, we see no need to expand the record. The motion is denied.
Specifically, when asked what "conclusions" he drew from the way in which the defendant had his currency divided up in his pockets, Moynihan testified, "[T]hrough my training and experience, people who sell drugs have different denominations in different pockets from doing business during the course of the day. They'll have some money in their wallet. Still have some money in the right pocket, some money in their left pocket. It's not typical behavior for someone to have money in all their pockets."
When Mejia was asked the "significance" of the currency found in the defendant's different pockets, he testified, "Usually the drug dealers, the streetlevel drug dealers, when there [sic] dealing with the drugs and the people out on the street, they keep money in different pockets, different denominations of money in different pockets. . . . You know, as the [sic] selling drugs, they put the moneylike to give change sometimes or the money that is going to go back to refill their supply and so forth."
The defendant contends that it was error for the two detectives to testify as to their opinions concerning his interaction with the bicyclist as well as the significance of the manner in which he kept cash in his pockets. The Commonwealth essentially concedes that it was error for the detectives to testify to their belief that the defendant was engaged in a drug transaction, but contends that the testimony concerning the location of recovered cash was properly admitted.
Because the defendant did not object to any of this testimony at trial, we review only to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). Here we conclude that there was error but that the error did not materially influence the verdict.
a. Error analysis. "A trial judge has broad discretion with respect to the admission of expert testimony. Expert testimony is generally admissible whenever it will aid the jury in reaching a decision. An opinion within the domain of the expert's professional knowledge may be admissible even if the expert's testimony touches on the ultimate issues before the jury. An expert may not, however, offer an opinion as to the defendant's innocence or guilt." Commonwealth v. Woods, 419 Mass. 366, 374-375 (1995) (footnote and citations omitted). "[A] police officer is permitted to rely on his training and experience and to give testimony that is explanatory and nonconclusory about the common characteristics of street-level narcotics transactions when it will be of assistance to the jury." Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539 (2012).
Although there was no explicit reference to the detectives' status as experts here, the Commonwealth elicited testimony about the detectives' training and experience and their status as experts might properly have been implied. See Commonwealth v. Rivera, 425 Mass. 633, 644 (1997) (judge need not explicitly qualify an expert). Moreover, the defendant does not challenge the detectives' qualifications to offer opinions based on expertise. See Commonwealth v. Woods, 419 Mass. 366, 374 n.12 (1995).
However, "there are many potential pitfalls in permitting a percipient police witness . . . to provide expert testimony. It is easy for the line between specific observations and expert generalizations to become blurred in these situations." Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998) (citation omitted). See Commonwealth v. MacDonald, 459 Mass. 148, 163 (2011). For example, in Woods, the court found that, although the question was a "close one," percipient police officers' "testimony that the defendant was involved in a drug sale was, in effect, expert opinion that the defendant was guilty of the charges" and that "[s]uch expert opinion testimony was unnecessary and impermissibly intruded on the jury's vital fact finding function." Woods, supra at 375.
The detectives' testimony here "exceeded the bounds of admissible expert testimony" and should not have been admitted. Commonwealth v. Rivera, 425 Mass. 633, 645 (1997). The testimony by the percipient police witnesses as to their belief that the defendant engaged in a drug deal "amounts to a personal assurance by the witness[es] that the crime charged had occurred, and thereby constitutes an improper intrusion into the fact-finding function of the jury." Tanner, supra at 580. Cf. MacDonald, supra at 162 ("[O]ur courts repeatedly have held that a properly qualified expert witness is permitted to opine based on a hypothetical that is grounded in facts in evidence, as being 'consistent with' a drug transaction"); Tanner, supra at 578 n.5.
However, the Tanner court also observed that "the determination whether evidence is within the proper scope of opinion testimony should not turn exclusively on the precise locution used. . . . [T]he mere use of the 'consistent with' formulation should not amount to a sure safe harbor for prosecutors." Tanner, 45 Mass. App. Ct. at 581. See Commonwealth v. Miranda, 441 Mass. 783, 786 & n.4 (2004) (trial judge cautioned detective testifying as both percipient witness and expert on methods used by street-level drug dealers not to express any opinions whether his observations in the instant case were consistent with a drug transaction or that the defendant's conduct was consistent with any part of a drug transaction).
The Commonwealth contends that the detectives' comments concerning the significance of the location of the currency recovered did not blur the line between percipient and expert testimony because their direct observations were "separate" from their generalized explanations about the significance of the defendant's possession of different denominations of cash in different locations. It is true that neither witness came right out and stated explicitly that he "believed" or "thought" the defendant was a drug dealer based on the manner in which he kept money in his pockets. However, Moynihan's response to a question of what "conclusions" he drew from that behavior was basically tantamount to such a statement. See note 4, supra. Mejia's invocation of the "[u]sual[]" practices of drug dealers in response to a question about the "significance" of the location of the defendant's cash is arguably closer to the preferred "consistent with" formulation, but it is still problematic. See ibid. Both detectives effectively linked their direct observations with conclusions based on their training and experience that equated those specific observations with the defendant's being a drug dealer. This was error.
Where the Commonwealth elects to combine percipient and expert testimony as it did here, it must tread the resulting minefield more carefully. The "better practice in drug cases, especially when an expert is a percipient witness, is to confine opinion testimony to the explanation of specific unusual or cryptic conduct, without stating, in any form, whether such conduct amounts to a criminal offense." Tanner, 45 Mass. App. Ct. at 581. "Here, for example, [the detectives] could have simply explained that drug dealers often store" different bills in different pockets. Ibid. "There was no necessity for [them] to link these facts with [their] personal observations and conclude, in so many words, that the defendant was involved in illegal drug sales. This type of testimony -- regardless of whether the 'consistent with' formulation is used -- takes unfair advantage of the dual role of police officers in these circumstances." Id. at 581-582.
b. Substantial risk analysis. Although it was error to admit the detectives' opinion testimony as discussed supra, see id. at 580-581, based on the strength of the properly admitted evidence, we are confident that admission of that testimony did not materially influence the verdict and so did not create a substantial risk of a miscarriage of justice. See Randolph, 438 Mass. at 297-298.
The detectives' "firsthand accounts" of a brief conversation followed by a hand-to-hand exchange between the defendant and the bicyclist in an area known for illegal drug activity coupled with the recovery of the heroin shortly, even if not immediately, after the exchange "gave rise to a strong inference as to the nature of the transaction." Woods, 419 Mass. at 375-376. See Commonwealth v. Soto, 45 Mass. App. Ct. 109, 114 (1998) (observing that it was "unlikely" that officer's unobjected-to testimony that he believed that he had just seen someone purchase cocaine would, on its own, create a substantial risk of a miscarriage of justice).
As in Woods, we note that "the improper testimony went only slightly beyond the opinions offered which were admissible." Woods, 419 Mass. at 376. The conclusion that a drug transaction occurred was likely already within the jury's grasp as "[u]nfortunately drug sales are so common in present society that almost any witness could draw the inference that drug sales were occurring when observing the activities described by [the detectives]." Rivera, 425 Mass. at 646 n.13. Furthermore, the defendant did not unequivocally dispute that a drug transaction had occurred, suggesting in his opening statement and through cross-examination of Moynihan that perhaps the defendant was the buyer and that it was the bicyclist who had been the seller.
The testimony regarding the significance of the location of the currency was arguably more impactful because it likely lay outside the common experience of the jury. However, "[e]ven without such a finishing flourish, the jury would have known" that Moynihan and Mejia believed the defendant had just sold heroin to the bicyclist. Commonwealth v. Dessources, 74 Mass. App. Ct. 232, 238 (2009). Despite the erroneously admitted testimony, there was ample properly admitted evidence for the jury to have found that a drug transaction had occurred. See ibid.
This also rendered it more properly the subject of expert testimony. See Tanner, 45 Mass. App. Ct. at 581.
Thus, "in view of the strength of the Commonwealth's case here, including the physical evidence of the drugs taken from [the bicyclist], the [cash] recovered from the defendant, and [the detectives'] detailed eyewitness testimony, it is unlikely that [any] improper comment was a decisive factor for the jury." Tanner, 45 Mass. App. Ct. at 580. It is also significant that the Commonwealth "did not exploit" any improper opinion testimony in its closing argument. Dessources, supra. See Commonwealth v. Ortega, 441 Mass. 170, 180 (2004).
The unobjected-to opinion testimony here does not require reversal because we do not "have 'a serious doubt whether the result of the trial might have been different had the error not been made.'" Randolph, 438 Mass. at 297, quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
2. Sufficiency of the evidence. For the reasons noted above regarding the strength of the Commonwealth's case, we are satisfied that the admissible evidence, together with the reasonable inferences therefrom, when viewed in the light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt that the defendant knowingly distributed heroin. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979); MacDonald, 459 Mass. at 153.
It "requires no leap of conjecture," Commonwealth v. Thompson, 470 Mass. 1008, 1010 (2014), for the jury to find that a hand-to-hand exchange took place based on testimony that Moynihan and Mejia, while in an area known for illegal drug activity, saw a known heroin user hand money to the defendant, saw the defendant hand something to the heroin user, recovered a sizable sum of cash from the defendant, and recovered heroin from the same pocket where the heroin user had placed the item he received from the defendant. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 178-179 (2009).
The $485 recovered from the defendant, while perhaps not an overwhelmingly large sum, is greater than the $312 that the court in Commonwealth v. Sepheus, 468 Mass. 160, 166 (2014), said was not "particularly large." In addition, the prosecution in Sepheus sought to prove an intent to distribute after recovering a small quantity of crack cocaine from an individual with little to suggest that intent separate from the cash recovered and the absence of a smoking device. Id. at 166-168. Here, the currency was recovered after officers witnessed the defendant receive cash as part of an exchange with a known heroin user. Cf. Commonwealth v. Clark, 446 Mass. 620, 623-624 (2006) (sufficient evidence of distribution where police observed defendant pocket cash from an individual who dropped a packet of heroin before fleeing upon officers' approach and later recovered only money and keys from defendant's pockets).
"The Commonwealth in proving its case need not exclude every hypothesis. The inference that the defendant sold the drugs 'need not be necessary or inescapable so long as it is reasonable and possible.'" Soto, 45 Mass. App. Ct. at 112, quoting from Commonwealth v. Cohen, 412 Mass. 375, 380 (1992).
Judgment affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: January 21, 2016.