Opinion
No. 12–P–330.
2013-10-4
COMMONWEALTH v. Rickey WILLIAMS.
By the Court (GREEN, GRAINGER & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in Superior Court of trafficking in cocaine, trafficking in cocaine within a school zone, possession of heroin with intent to distribute, possession of heroin with intent to distribute within a school zone, and unlicensed operation of a motor vehicle.
On appeal, the defendant asserts that (1) his right of confrontation was violated when a surrogate chemist testified in place of the chemist who prepared the drug certificate, (2) the Commonwealth should not have been permitted to offer evidence of three prior controlled buys of cocaine from the defendant, and (3) trial counsel provided ineffective assistance by failing to request an instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448 (2004). Background. We recite the relevant facts as the jury could have found them during trial. While driving in Pittsfield on July 2, 2010, the defendant was stopped by the police for operating a vehicle without a license. The defendant was 894 feet from Pittsfield High School when he was stopped. The defendant was removed from the vehicle, handcuffed, and patted down before he was placed in a police cruiser. After a small bag of marijuana was found in his vehicle, the defendant was removed from the cruiser and a second pat down was conducted. This time, Officer Tyrone Price discovered an object in the defendant's groin area that felt like it was wrapped in plastic. The defendant was taken to the police station where he was booked. Three packages were removed from his groin area along with $2,005 and two cell phones. The defendant made various inculpatory statements during his arrest and booking. We reserve further recitation of facts for our discussion of the issues on appeal.
The Commonwealth nol prossed two additional charges of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within a school zone.
Confrontation Clause. The defendant asserts that his right to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights was violated when a surrogate chemist testified in place of the original chemist who completed the drug analysis.
James Hanchett, the chemist who tested the substances seized from the defendant, was hospitalized and unable to testify at the time of trial. The Commonwealth called Rebecca Pontes, a forensic chemist with the Department of Public Health who worked under Hanchett, to testify in his stead. On direct examination, Pontes testified that, based on her review of Hanchett's lab notes and report, exhibit 1 was consistent with powder heroin, exhibit 2 was consistent with crack cocaine, and exhibit 3 was consistent with crack cocaine. She also read the weights of each of the drugs in evidence from Hanchett's report.
On cross-examination, Pontes confirmed that she did not conduct the tests of these substances, was not present when the tests were conducted by Hanchett, and could not say whether they were performed in accordance with lab procedures, or if any mistakes were made. Hanchett's lab notes and the drug analysis reports were not admitted in evidence.
Exhibit 1 weighed 10.72 grams, exhibit 2 weighed 13.03 grams, and exhibit 3, which was packaged in fifty-two individual bags, weighed 8.03 grams.
Pontes's testimony was permissible insofar as she offered an independent opinion concerning the substance of the drugs based on her review of Hanchett's report. See Bullcoming v. New Mexico, 131 S.Ct. 2705, 2709, 2714–2717 (2011); Williams v. Illinois, 132 S.Ct. 2221, 2239–2240 & n.10 (2012); Commonwealth v. Greineder, 464 Mass. 580, 584 (2013). Pontes strayed outside the permissible scope for surrogate expert testimony, however, when she read the weights of the drugs from Hanchett's report. See Commonwealth v. Greineder, supra at 592 (data or conclusions of nontestifying expert is hearsay and is inadmissible on direct examination of surrogate expert). We therefore consider whether this testimony was harmless beyond a reasonable doubt.
Commonwealth v. Montoya, 464 Mass. 566, 571–572 (2013).
The Commonwealth concedes that defense counsel preserved the Confrontation Clause issue for appellate review, but asserts that because counsel did not object separately when Pontes read the weight of the drugs into evidence, this issue should be governed by the substantial risk standard of review. On this record, we consider counsel's initial objection on Confrontation Clause grounds was sufficient to preserve the issue under the harmless beyond a reasonable doubt standard.
Exhibit 3 was comprised of fifty-two individual bags, packaged for street sale. In Commonwealth v. Montoya, supra at 573–574, the Supreme Judicial Court held that the jury could not have determined the weight of drugs packaged in twenty individual bags where the difference between the total weight of the bags and the minimum amount necessary to sustain the trafficking charge was eleven grams (the weight of about four pennies). Here, taking the weight of exhibits 2 and 3 together,
the difference between the total weight of the cocaine (21.06 grams) and the minimum amount necessary to sustain the trafficking charge (14 grams) is 7.06 grams (or the equivalent of slightly more than two pennies). We are not confident that the officer or the jury would have been able to discern such a small difference in weight and conclude that allowing Pontes to testify to the weights of the drugs was not harmless beyond a reasonable doubt.
Neither exhibit 2 nor exhibit 3 alone weighed enough to sustain the trafficking offense: exhibit 2 weighed 13.03 grams while exhibit 3 weighed 8.03 grams.
Because proof of possession of at least fourteen grams of cocaine was lacking, the defendant could not be convicted of trafficking in cocaine, G.L. c. 94C, § 32E( b )(1), and trafficking of cocaine within a school zone, G.L. c. 94C, § 32J.
Evidence of prior controlled buys. The defendant testified at trial that he was not a drug dealer and claimed that Officer David Kirchner planted drugs on his person. The trial judge permitted the Commonwealth to present testimony from Trooper William Scott to rebut the defendant's testimony. Specifically, Scott testified that on three prior occasions, in May and June, 2010, he oversaw controlled purchases of cocaine from the defendant. The first two controlled buys, in May, 2010, took place at 139 Church Street, a multi-unit apartment building in North Adams. Scott gave an informant money and after the informant went inside the apartment for three-to-five minutes, he returned with crack cocaine. The third buy, in June, 2010, took place in public and Scott observed the informant meet the defendant. Although Scott did not see any items exchanged, the informant returned with crack cocaine. On each occasion, the informant called a certain phone number
to arrange to purchase cocaine.
One of the cell phones seized from the defendant at the time of his arrest, and admitted in evidence at trial, was assigned that telephone number.
The defendant asserts that this testimony created a substantial risk of a miscarriage of justice because it was used to show his propensity to possess drugs. We disagree. Scott's testimony was admissible to impeach the defendant and to show his intent. See Commonwealth v. Gollman, 436 Mass. 111, 114 (2002). The prior controlled buys were sufficiently close in time to the date of the defendant's arrest (within two months) to be logically probative. Ibid. In addition, the judge gave an appropriate and complete limiting instruction, specifically instructing the jurors that they could consider the testimony only for the purpose of impeaching the defendant or to show his intent. We conclude that the judge did not abuse his broad discretion in admitting evidence of the controlled buys.
Ineffective assistance. The defendant asserts that his trial counsel was ineffective for failing to request an instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. at 447–448. Because the defendant did not move for a new trial on this basis, we resolve his ineffective assistance claim only if “the factual basis of the claim appears indisputably on the trial record.” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). The defendant's claim requires a determination whether trial counsel's decision not to request the instruction rested upon reasonable doctrinal or tactical grounds or upon “manifestly unreasonable” judgment. See Commonwealth v. Dodgson, 80 Mass.App.Ct. 307, 316 (2011). The exception set out in Commonwealth v. Zinser, supra, does not apply, therefore, we decline to address the claim.
Conclusion. We vacate the judgments on the offenses of trafficking in cocaine and trafficking in cocaine within a school zone, and set aside those verdicts. We remand the case to the Superior Court for sentencing on the lesser included offenses of possession of cocaine with intent to distribute, G.L. c. 94C, § 32A, and possession of cocaine with intent to distribute within a school zone, G.L. c. 94C, § 32J.
See Commonwealth v. Rivera, 31 Mass.App.Ct. 554, 558 (1991). The remaining judgments are affirmed.
The record reflects that the trial judge instructed the jury on the lesser included offense of possession with intent to distribute.
So ordered.