Opinion
No. 10–P–883.
2012-06-25
COMMONWEALTH v. Angel ORTIZ.
By the Court (BERRY, MILLS & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of two counts of distributing heroin corresponding to two sales to an undercover police officer. G.L.c. 94C, § 32A. The transactions occurred on the same day; the first at 11:30 A.M. (the first sale), and the second at 2:30 P.M. (the second sale). On appeal, the defendant raises several challenges. A principal issue concerns whether the defendant's confrontation rights were violated when, in the Commonwealth's case, a chemical analyst—who did not perform the underlying analysis regarding the second sale and was reciting findings which were in the analysis report of another, nontestifying analyst—testified that the substance involved in the second sale contained twelve percent heroin with caffeine, diltiazem, and thiamine.
The defendant was also convicted of one count of distribution within one hundred feet of a park and challenges the measurement to the park. G.L.c. 94C, § 32J. Further, the defendant contends the prosecutor's closing argument impermissibly shifted the burden of proof and improperly vouched for prosecution witnesses. We address these other issues in parts 4 and 5, infra, and find neither claim is sustainable.
We conclude that the introduction of this testimony, reciting the factual findings of the nontestifying analyst who conducted the testing of the substance from the second sale, violated the defendant's rights of confrontation. As was held in Commonwealth v. Durand, 457 Mass. 574, 584–585 (2010),
“[a] substitute [chemical expert] may testify as to his or her own opinion ... even though the testimony is based principally on [testing] performed by an unavailable [expert], because the substitute [expert's] opinion is subject to cross-examination.... However, a testifying [expert] called by the Commonwealth is not permitted to testify, on direct examination, to the underlying factual findings contained in the [ ] report prepared by a different [expert], because such testimony would violate a defendant's confrontation rights ” (emphasis added).
1. Background. The trial evidence may be summarized as follows. On December 7, 2007, at 11:30 A. M., in the course of an undercover investigation, State Trooper Dunn dialed a number, spoke to a man (later identified as the defendant), and requested “three bags” of heroin. The defendant instructed Dunn to meet him at the Panorama Restaurant in Brockton. When Trooper Dunn reached the restaurant, he dialed the same number, and told the defendant that he had arrived. Shortly thereafter, the defendant emerged from the restaurant. The defendant was still speaking on his phone with Trooper Dunn. The defendant approached the driver's side window of Dunn's car. Dunn told the defendant that he wanted “two bags.” The defendant asked for eighty dollars, which Dunn paid, and the defendant then handed Dunn two bags. At trial, Dunn described these as “two bags of suspected heroin.” The two bags were introduced in evidence as Commonwealth's exhibit 1. Dunn identified exhibit 1 as the “brown powdered substance” which the defendant gave him during the transaction.
Later that day, at 2:30 P. M., Trooper Dunn called the same telephone number and asked the defendant for another bag of heroin. The defendant instructed Dunn to meet him on Tyler Street in Brockton. At the designated place, the defendant entered the front passenger seat of Dunn's car, and passed a bag to Dunn. At trial, Trooper Dunn testified that “[the defendant] handed me a bag of heroin, suspected heroin at that time, and I handed him $40.” The contents of this bag were introduced at trial as the Commonwealth's exhibit 2.
Trooper Dunn testified that, when he returned to the barracks later that day, he conducted a field test on both the first and second sale substances. According to Trooper Dunn, the field tests were “positive for heroin.”
Specifically, the testimony from Trooper Dunn concerning the field testing was as follows:
[On cross-examination] Q: And it's true, isn't it, that heroin is not something that you can readily or observably tell by smell, for example whether or not it is heroin, correct? You need to send it to the—well, you need to do some form of testing—
A: Correct.
Q: —fair to say?
A: Yes.
Q: And you have available to you something called a field testing kit.
A: Correct.
Q: You can put a dropper or something that turns a color?
A: Correct.
Q: Okay. And did you do that?
A: I did.
Q: And when did you do that?
A: Back at the barracks prior to submitting it into the evidence locker.
[On re-direct]Q: And [defense counsel] asked you at the end of the day when you turned in the evidence if you field tested it. Do you recall him asking you that?
A: Yes.
Q: Did you field test it?
A: I did.
Q: What were the results?
A: Positive for heroin.
2. The analyst testimony. At the State police crime laboratory, the substances purchased by Trooper Dunn were examined separately by two different analysts. Prior to trial, the Commonwealth filed a motion in limine to have just one of the analysts testify concerning the analysis and identification of the substances. That analyst (O'Meara) had conducted the chemical analysis of the first sale substance, but not the second sale substance. Over the defendant's objection, the trial judge allowed the motion. At trial, when the Commonwealth sought to offer O'Meara's testimony, the defendant's objection was overruled. O'Meara testified as follows:
Q. ... Who actually performed the testing on Exhibit 2?
A. Stacy Clairmont....
Q. Thank you. And what position does she hold within the laboratory?
A. She is a Chemist II in our laboratory.
Q. And prior to coming in here and giving testimony today did you review her findings, reports, and testings as it pertains to Exhibit 2?
A. Yes, I did.
Q. And based upon your review of those findings, are you able to tell the jurors what testing procedures she used generally to determine the substance?
A. Yes.
Q. What testing procedures did she use?
A. To identify the illegal substance she used a gas chromatograph with a flame ionization detector, and that was— she was able to identify that heroin, adulterated heroin was present [in the second sale substance]. She also used Fourier transform infrared spectroscopy also to identify an adulterated heroin, and then she also used to confirm the gas chromatograph with the mass selective ion.
Q. Is that the same confirming test that you used in your analysis [concerning the substance in the first sale]?
A. That is correct.
Q. And the identifying test, is that just unique to each analyst?
A. Yeah. It's the judgment of the chemist of how the choose to do—both methods, actually all methods, ultraviolet spectroscopy, Fourier transform infrared spectroscopy, as well as the gas chromatograph with the flame ionization detector are all considered acceptable identifying screening methods.
Q. Thank you. And in reviewing Ms. Clairmont's testing analyses, are you now able to offer an opinion to a reasonable degree of scientific certainty what the substance contained in Exhibit 2 is?
A. Yes.
....
Q. And what is that opinion?
A. She [the other anyalst]—it was found to contain—I'm sorry—12 percent heroin with caffeine, diltiazem, and thiamine as adulterants. (Emphasis supplied.)
Such testimony by O'Meara concerning the substance in the second sale and referencing the results of the underlying report of the nontestifying analyst—specifically the statement that the second substance contained “12 percent heroin with caffeine, diltiazem, and thiamine as adulterants,” is precisely the type of “factual findings” of the nontestifying analyst which Durand held would violate a defendant's constitutional rights. Commonwealth v. Durand, 457 Mass. at 584–585, citing Commonwealth v. Nardi, 452 Mass. 379, 388–391 (2008). See generally Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009).
3. Harmless error. As there was constitutional error in the admission of that testimony, we address whether the error was harmless beyond a reasonable doubt under the standards set forth in Commonwealth v. Vasquez, 456 Mass. 350 (2010). “As an appellate court, we ask whether ‘on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the [fact finder] and did not contribute to the [fact finder's findings].’ “ Id. at 360, quoting from Commonwealth v. Tyree, 455 Mass. 676, 701 (2010).
As previously noted, Trooper Dunn made both of the undercover buys of heroin from the defendant on the same day. Because the first undercover buy was the subject of trial testimony by the analyst who had performed that laboratory testing, we need not further address Trooper Dunn's field testing of that substance.
We turn to the substance involved in the second undercover buy, where the findings of the absent analyst were invalidly introduced in evidence. With respect to the second buy, Trooper Dunn conducted a field test and testified that the substance tested positive for heroin. In addition to this field test, Trooper Dunn also testified concerning the setup with the defendant for the second undercover buy of heroin, following the trooper's first buy of heroin that same day. The trooper identified the bag of heroin which he had purchased in the second buy, and described the chain of custody and markings with respect to it.
The trial testimony also included background concerning Trooper Dunn's experience in narcotics cases. Dunn had served nine years with the State Police, and for three and one-half years had worked in the narcotics unit in the district attorney's office. He had received specialized training in narcotics investigations. He had been involved in approximately one hundred drug related investigations and arrests. Trooper Dunn had personally acted as an undercover buyer in thirty to thirty—five narcotics undercover buys.
We conclude that Trooper Dunn's testimony regarding the field test of the second substance—when coupled with the totality of the evidence presented—place this case with the class wherein field testing of a controlled substance and testimony introduced at trial identifying the controlled substance as a result of the test, may render the constitutionally erroneous admission of the absent analyst's findings harmless beyond a reasonable doubt.
We conclude that this case has factors similar to those found to meet the harmless error standard in Commonwealth v. Connelly, 454 Mass. 808, 829–832 (2009). Commonwealth v. King, 461 Mass. 354, 358 (2012). Specifically, among those factors are that there was an ongoing investigation, with more than one controlled drug purchase, here by an undercover police officer who had substantial experience and training in narcotics investigations. Most significantly, the results of the field tests were introduced in evidence, including that the substance tested positive as heroin.
We note that the more fully developed factual background in this case makes it distinguishable from other cases in which a Melendez–Diaz error has been determined not to be harmless beyond a reasonable doubt-for example, where the result of the field test was not clear and the substance was not identified at trial. See, e.g., King, 461 Mass. at 359 (officer testified only that the results were positive, but did not identify what the substance was, noting only that further testing would be done); Commonwealth v. Billings, 461 Mass. 362, 363 (2012) (officer's testimony did not provide any details about the field test itself, or the results of the test). Further distinguishing this case is the fact that Trooper Dunn's experience in narcotics cases was developed at trial. Compare King, 461 Mass. at 358 where the testifying officer (unlike Trooper Dunn), “only stated that he had been in law enforcement for twelve years and was in the narcotics unit at the time of the investigation. He was not asked about his specific training in the identification of cocaine; indeed he was not asked about any specific training or experience in narcotics investigation .”
We note the recent decision of the Supreme Court of the United States in Williams v. Illinois, No. 10–8505 (June 18, 2012), in which a majority of the Court held that, in some circumstances, an expert witness may testify as to other experts' testimonial statements, even if the other experts are not present in court or otherwise available for cross-examination. However, our ruling is based on constitutional principles articulated by our Supreme Judicial Court.
4. The school zone measurement. The defendant challenges the sufficiency of the measurement for the distribution within one hundred feet of a park conviction. See G.L.c. 94C, § 32J. We set forth the pertinent trial evidence relating to the measurement.
Brockton police Detective Costello testified that, based on Trooper Dunn's police report, as well as a conversation with Trooper Dunn, Costello measured from the furthest corner of the intersection of Bryant and Sylvester Streets (where the second sale transpired) to the subject playground. The distance was eighty-two feet.
The defendant first argues that this proof is insufficient because Costello did not witness the sale firsthand and was asked to perform the measurement a year and a half after the distribution occurred. This argument is without merit. That the measurement was conducted some time after the transaction occurred does not affect the sufficiency of the evidence calculus. Cf. Commonwealth v. Rocoulet, 413 Mass. 647, 650–651 (1992) (internal quotations omitted) (“After the elements of [the predicate] offense have been established, one need only take out the tape measure to see if [G.L.c. 94C, § 32J] has been violated”). See Commonwealth v. Williams, 54 Mass.App.Ct. 236, 245 (2002).
Costello acknowledged that “he did not know the exact spot” where the sale occurred. The defendant argues that this lack of knowledge invalidates the measurement. We disagree. Notwithstanding that Costello was not shown a precise location, the measurement was still reliably based. Costello testified that, in his conversation with Trooper Dunn before the measurement, Dunn described his position at the time of the sale as “he [was] coming down Sylvester from Tyler before you hit Bryant [and] he just parked there.” Based upon this description, Detective Costello was able to provide a diagram at trial to indicate where Trooper Dunn told him he was parked. This diagram and Costello's testimony were consistent with Trooper Dunn's testimony that the second sale occurred “on the corner of Bryant Street and Sylvester Street.” See Commonwealth v. Whitlock, 74 Mass.App.Ct. 320, 328 (2009).
5. The prosecutor's closing. No objection was lodged to the prosecutor's closing. Accordingly, we review to determine whether there was error and, if so, whether there was a substantial risk of a miscarriage of justice. We examine the prosecutor's closing argument in light of the “entire argument, the evidence at trial, and the judge's instructions to the jury.” Commonwealth v. Christian, 430 Mass. 552, 564 (2000).
The defendant cites error, claiming improper burden shifting in the prosecutor's comment that, “[h]e's not given you any facts. He has given you misinformation.” This reference is improper. See Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). However, when the closing is viewed as a whole and applying the analysis and factors set forth in Commonwealth v. Kozec, 399 Mass. 514 (1987), we conclude this isolated error did not give rise to a substantial risk of a miscarriage of justice. Particularly is this so in light of the trial judge's clear and repeated instructions concerning the government's burden to prove the defendant guilty beyond a reasonable doubt.
Second, the defendant contends that the prosecutor's closing improperly vouched for the testimony of its witnesses. We do not discern such vouching. Rather, the prosecutor's statements as to the various levels of experience of the witnesses were proper to combat arguments made during the defense closing which called into question the veracity of the government witness. See Commonwealth v. Kee, 449 Mass. 550, 560 (2007); Commonwealth v. Sanders, 451 Mass. 290, 297 (2008) (where defense places witness credibility at issue during closing, prosecutor is “entitled to respond within the limits of the evidence and to provide the jury with reasons for believing” the witness).
Judgments affirmed.