Opinion
15-P-1363
01-27-2020
COMMONWEALTH v. Antonio DOSSANTOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Antonio Dossantos, appeals from convictions of distributing heroin, see G. L. c. 94C, § 32 (a ), and of distributing cocaine, see G. L. c. 94C, § 32A (c ), after a jury trial in the Superior Court. Concluding that the errors in the substitute chemist's testimony did not give rise to a substantial risk of a miscarriage of justice and that there was sufficient evidence to prove the defendant's guilt, we affirm.
The defendant was originally convicted of subsequent offense versions of both crimes. See G. L. c. 94C, § 32 (b ) ; G. L. c. 94C, § 32A (d ). Appellate proceedings were stayed to allow the consideration of a motion for a new trial, and the trial judge reduced the convictions to first offenses, as the predicate offenses had been vacated because of the malfeasance of Annie Dookhan.
The defendant also appeals from the portion of the order denying his motion for a new trial on those remaining first convictions.
1. Substitute chemist. At trial, a supervisory forensic chemist testified regarding the nature of the substances seized, rather than the chemist who did the actual testing. The defendant raised only one objection during this testimony: that the questioning was "giving the jury the impression that this gentleman conducted the actual testing." The judge sustained that objection. The certificate of analysis was admitted without objection. Because the certificate and all of the testimony challenged on appeal was admitted without objection, the defendant has waived the issue, and we review only to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Cooper, 91 Mass. App. Ct. 595, 602 (2017).
An expert's testimony that "draws upon testing conducted and results reached by other analysts[ ] who do not testify ... is permissible provided that the testifying analyst ‘reviewed the nontestifying analyst's work, ... conducted an independent evaluation of the data,’ and ‘then expressed [his or] her own opinion, and did not merely act as a conduit for the opinions of others.’ " Commonwealth v. Gonzalez, 93 Mass. App. Ct. 6, 13 (2018), quoting Commonwealth v. Jones, 472 Mass. 707, 715 (2015). The underlying data that forms the basis of the opinion, if not personally observed by the substitute expert, is inadmissible unless the other party elicits it. See Commonwealth v. Rivera, 464 Mass. 56, 77 (2013) ; Commonwealth v. Durand, 457 Mass. 574, 584 (2010). Here, the chemist's discussion of the ultraviolet spectroscopy, Fourier Transform infrared spectroscopy, and gas chromatography mass spectrometry tests, none of which were personally witnessed by the chemist, was inadmissible.
We discern no substantial risk of a miscarriage of justice. No part of the defense concerned the nature of the substances. The defendant did not challenge the nature of the substances in his opening statement, declined to cross-examine the chemist, and specifically stated in closing argument that "[t]he chemist was doing his job" and that the question for the jury was whether the defendant was "the one who sold drugs" to the alleged buyer. Indeed, trial counsel specifically informed the trial judge that the defense was not disputing the nature of the substances. The chemist's description of the tests, therefore, was merely cumulative evidence on an uncontested point. There was no substantial risk of a miscarriage of justice. See Cooper, 91 Mass. App. Ct. at 602. See also Commonwealth v. Reavis, 465 Mass. 875, 883-884 (2013).
2. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018), quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).
Here, two police officers observed the defendant hold open his right hand and allow another man to pick up objects therein. Simultaneously, the other man handed something to the defendant. That man was found with three bags of heroin and one bag of cocaine in his left breast pocket and a small amount of money. This occurred in an area where a testifying officer had personally recovered narcotics and made drug arrests. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 178-179 (2009). The exchange took seconds, and then both parties separated. See Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 471 (2018). The other man's behavior prior to the exchange comported with usual patterns of street level drug transactions, and an officer testified that it was consistent with a drug transaction. We have repeatedly held that evidence of this sort is sufficient to prove a drug transaction. See Dancy, supra; Commonwealth v. Soto, 45 Mass. App. Ct. 109, 111-112 (1998) ; Commonwealth v. Pixley, 42 Mass. App. Ct. 927, 927-928 (1997).
Two officers testified that all the drugs were found in the same pocket; one officer testified that they were found in different pockets. The jury were entitled to credit the testimony of the two officers. See Commonwealth v. Woods, 94 Mass. App. Ct. 761, 766 n.5 (2019) (jury may decide which witness's testimony to credit).
Both of these facts distinguish this case from Commonwealth v. Barreto, 483 Mass. 716 (2019). There, unlike here, "the officers did not observe an object change hands and did not observe anything in the pedestrian's hands either before or after meeting the defendant." Id. at 721. Similarly, unlike here, "the area in which the men met was not known for drug activity." Id. at 720.
In passing, the defendant challenges testimony that officers considered this a "drug transaction." See Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 580 (1998). This evidence, however, was introduced to the case by the defendant in cross-examination. Considering that the defense was misidentification, not that the exchange was innocent, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 250 (2012). Cf. Commonwealth v. Arias, 55 Mass. App. Ct. 782, 788 (2002) (no substantial risk of miscarriage of justice where "the conclusion was not significantly more prejudicial than the explanation").
Had the defendant been stopped at the time and found to be holding money and no drugs, it would be easy to determine that the defendant was the seller in the transaction. See Commonwealth v. Thompson, 470 Mass. 1008, 1010 (2014). As he was not, we must face the question whether the evidence was sufficient to establish that the defendant was the seller and the man was the buyer, or whether the evidence equally suggested that the defendant was the buyer. See Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 264-265 (2010). Three pieces of evidence, if believed by the jury, established that the defendant was the seller.
First, the fact that the defendant was the one displaying items and allowing the other man to choose supports the proposition that the defendant was the seller. Usually it is the merchant that displays product for the buyer to choose from, not the buyer that displays currency for the seller to choose from. See Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 434 (2006) (defendant acted "in a manner consistent with displaying small items").
Second, the defendant displayed consciousness of guilt. Immediately after the exchange, the defendant recognized an officer, uttered an expletive, and "made an about-face and left." The jury could infer that a drug seller would be the most distraught at discovering that the drug transaction might have been observed by the police. See Alvarado, 93 Mass. App. Ct. at 471. That "there are scenarios that could explain the defendant's behavior in a way that would not support his conviction" does not matter, as "[t]he inference that the defendant sold the drugs ‘need not be necessary or inescapable so long as it is reasonable and possible.’ " Id. at 471-472, quoting Soto, 45 Mass. App. Ct. at 112. Accord Commonwealth v. Ortiz, 466 Mass. 475, 488 (2013).
There was also evidence that the defendant, instead, "kept walking down that path." The jury were entitled to determine which version to credit. See Commonwealth v. Miranda, 458 Mass. 100, 113 (2010) ("To the extent that conflicting inferences may be drawn from the evidence, it is for the jury to decide which version to credit").
In closing argument, the defendant admitted that this was "huge," but urged the jury to find that it was invented by the officers.
Third, an officer observed the other man, prior to meeting with the defendant, waiting in a field, "taking or placing numerous phone calls with a cellular phone, and ... paying very close attention to who was walking, coming towards him." This was significant because a police officer had testified that "you always see drug users waiting." Often, drug buyers "will be constantly watching for traffic, pedestrian traffic in the particular area they're in, vehicular traffic, constant phone calls, constant checking of the phones, pacing back and forth." By contrast, "You'll never see a drug dealer -- a drug dealer, I have never seen a drug dealer wait for anybody." This is because drug sellers routinely "conduct counter surveillance" and check for police prior to publicly entering the scene. The jury were entitled to credit "expert testimony that ... a dealer is ‘[v]ery seldom’ the first to arrive at the agreed location." Commonwealth v. Stephens, 451 Mass. 370, 387 (2008).
This officer was an eight-year veteran of the Boston Police Department who recounted extensive experience with street level drug transactions, including "close to a thousand" investigations.
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These three facts make the instant case stronger than that in Soto. There, we concluded there was sufficient evidence of distribution where the alleged buyer waited fifteen minutes for the defendant, the alleged buyer and the defendant engaged in an exchange for no more than fifteen seconds and then separated, and the alleged buyer immediately thereafter produced cocaine. 45 Mass. App. Ct. at 110, 112. Here, the additional evidence described supra makes this case stronger than the case in Soto. Accordingly, the jury could reasonably determine that the defendant was the seller in a drug transaction.
Conclusion. The judgments are affirmed. In addition, so much of the order denying the defendant's motion for a new trial on the first offenses is affirmed.
So ordered.
Affirmed