Opinion
No. 11–P–979.
2012-06-28
COMMONWEALTH v. Michael CUBERO.
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of possession of a class B substance with intent to distribute, G.L. c. 94C, § 32A( a ), and commission of a drug offense in a school zone, G.L. c. 94C, § 32J. The defendant appeals, arguing that his right to confront the witnesses against him under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights was violated when a drug analyst for the Commonwealth, Lisa Glazer, testified that the substance in question was cocaine, based on both her own preliminary tests of the substance, and on her review of a confirmatory test performed by a different chemist.
We conclude that Glazer's testimony was properly limited to (1) her own actions and observations while performing her test of the substance in question, and (2) her personal, independent opinion regarding the results generated by the nontestifying analyst, where the results and conclusions generated by the nontestifying analyst were not entered into evidence. Therefore, we conclude that the defendant's confrontation rights were not violated, and we affirm the convictions. In Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 2532 (2009), the United States Supreme Court held that the admission of drug certificates or other factual findings created by laboratory analysts required that those analysts be available and subject to cross-examination pursuant to the holding in Crawford v.. Washington, 541 U.S. 36 (2004), and the confrontation clause of the United States Constitution. However, where the reports of a nontestifying analyst are not entered in evidence, a substitute analyst is permitted to “testify as to her own conclusions derived from the data generated by the [nontestifying] analyst's tests.” Commonwealth v. Munoz, 461 Mass. 126, 132 (2011). See Commonwealth v. McGrail, 80 Mass.App.Ct. 339, 342–343 (2011) (“An expert may give opinion testimony based on hearsay when the particular hearsay would be independently admissible if presented by the ‘right witness' or with a proper foundation, and if it is the type of evidence on which experts customarily rely as a basis for opinion testimony”).
In this case, Glazer testified to her opinion of the nature of the substance based on the results of the test she herself performed, and on her review of the results generated by the nontestifying analyst. The actions, conclusions, and specific findings of the nontestifying analyst, and, indeed, any details whatsoever related to the content of the confirmatory test, were never entered in evidence. As such, Glazer's testimony was proper under Munoz, supra, and we therefore affirm the convictions.
Judgments affirmed.