Opinion
19-P-1429
04-05-2021
COMMONWEALTH v. Johan Miguel MATOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In August of 2013, the defendant was arrested after Boston police officers observed him engaged in a suspected street-level drug transaction in the parking lot of a fast-food restaurant in East Boston. After a jury-waived trial, the defendant was thereafter convicted of distribution of a Class B substance, "crack" cocaine, in violation of G. L. c. 94C, § 32A (a ). He appeals, arguing (1) that the judge erred in admitting opinion testimony from a police officer expert on street-level drug transactions, and (2) that there was insufficient evidence of distribution by him. We affirm.
Background. On the evening in question, Officer Evan Nunez of the Boston Police Department was on surveillance when he noticed two males sitting inside a vehicle parked in the fast-food restaurant parking lot. The lot had been a frequent location of drug-related arrests in the past. The males were looking around, and made multiple brief phone calls. Following one of these phone calls, the driver of the car, Cormier, exited the vehicle and walked around the corner of the building. Officer Nunez followed Cormier and observed that Cormier was holding folded-up currency in his hand, although Nunez could not see the denomination or if there was more than one bill present. Cormier then approached a car, reached into the open car window with the hand that was holding the currency, and "conducted an exchange with the driver" of that vehicle, who was later determined to be the defendant. Officer Nunez did not see the defendant hand anything back to Cormier, but he could see that when Cormier withdrew from the vehicle he was now clenching something in his hand. Cormier then reached up with that same hand, and appeared to put something inside his mouth. Cormier then moved away from the vehicle and the vehicle drove away.
Officer Nunez approached Cormier and informed him of what he had seen, and Cormier spat out a small bag containing what was stipulated to be crack cocaine. Officer Nunez radioed his findings to other officers, who had followed the defendant's car after it left the parking lot. Those officers noted that the defendant took a "very erratic" route around the block while "constantly looking to the mirrors of the vehicle ... slowing down and speeding up." Eventually the defendant stopped, and the officers approached the vehicle. The defendant stated that he and his passenger had been smoking marijuana, and handed the officers a small bag of marijuana.
Officers informed the defendant that he was under arrest, to which he "stated several times: I got no money. How are you going to charge me without having any money?" Indeed, no money was found on the defendant. Officers found five twenty dollar bills in the passenger's possession. No illegal narcotics were recovered from the defendant or his passenger.
The Commonwealth also called Sergeant John Dineen, a twenty-year veteran of the Boston Police Department. Sergeant Dineen was proffered as an expert in street-level drug transactions. He testified to his training in the identification and surveillance of such transactions, as well as his experience observing and participating in such transactions as part of the drug control unit. Dineen stated that he had made or participated in "thousands" of arrests for controlled substances. Over defense objection, the judge allowed Dineen to testify as an expert. Dineen then testified to several common characteristics of street-level drug transactions. He also was asked about a hypothetical set of circumstances matching those of the observed interaction between Cormier and the defendant, and opined that they reflected a "textbook drug deal."
Dineen testified to several common behaviors observed of individuals who were later arrested for drug offenses. This testimony included descriptions of nervous "lookout" behaviors; that buyers and sellers will sometimes make several short phone calls to each other prior to the transaction; that interactions are likely to be very brief; and that buyers and sellers often store narcotics in their mouths.
Discussion. 1. Expert testimony. The defendant contends that the judge erred in allowing Sergeant Dineen to testify as an expert. He raises two arguments: (1) that the judge violated Massachusetts law and due process when he failed to conduct a Daubert-Lanigan hearing before determining that Dineen was qualified, and (2) that the judge failed to properly apply the Daubert-Lanigan criteria or to make the findings required by those cases. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 419 Mass. 15 (1994). We perceive no error.
We review decisions to admit expert testimony under an abuse of discretion standard. Canavan's Case, 432 Mass. 304, 312 (2000). A witness may be qualified to give an expert opinion if he or she has "sufficient education, training, experience, and familiarity with the subject matter of the testimony" (quotations and citation omitted). Commonwealth v. Richardson, 423 Mass. 180, 183 (1996). Expert opinions are admissible where "the subject [of such testimony] is not within the common knowledge or common experience of the trier of fact, and the testimony will assist the trier of fact in determining a fact in issue or in understanding the evidence" (quotation and citation omitted). Commonwealth v. Miranda, 441 Mass. 783, 792-793 (2004). See Mass. G. Evid. § 702 (2021). Massachusetts courts have long held that expert testimony may be admitted to describe the characteristics of street-level drug transactions, and the common behaviors of the individuals involved. Such information is beyond the common knowledge of the average trier of fact, such that expert testimony is often helpful in cases involving such transactions. See, e.g., Miranda, supra at 793-794 ("[T]rial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases"), and cases cited therein.
The trial judge has "a gatekeeper role" with respect to the admission of expert testimony. That role is important, and independent of any evaluation of the weight of the testimony by the finder of fact. The trial judge must determine that "the reasoning or methodology underlying the testimony is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue." Lanigan, 419 Mass. at 26, quoting Daubert, 509 U.S. at 592-593. The Daubert-Lanigan test applies not only where the expert is testifying based upon scientific principles or theories, but also where the expert's methodology is based on experience and observations. See Canavan's Case, 432 Mass. at 313. However, a "Daubert-Lanigan hearing may not be necessary where the expert's methodology has previously been accepted as reliable in the relevant field," and as noted, expert testimony on street-level drug transactions falls into this category. Commonwealth v. Nelson, 460 Mass. 564, 578 (2011), quoting Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 327 (2010). See Commonwealth v. Goodman, 54 Mass. App. Ct. 385, 391 (2002) ("[I]n matters which ... depend so heavily on common sense observations, not on a hypothesis for explaining phenomena as in esoteric scientific theory, the judge can properly look to his own common sense, as well as the depth and quality of the proffered expert's education, training, experience, and appearance in other courts").
There was no error in the procedure the judge followed here, or in the admission of Dineen's testimony. Dineen testified at length about his qualifications, training, and experience in street-level drug transactions before the judge ruled that Dineen was qualified in that area. Those qualifications were extensive, including firsthand observation of "thousands" of drug transactions, and supported the judge's determination. A separate voir dire was not required under the circumstances, particularly since this was a bench trial, and defense counsel had free reign to cross-examine Dineen. It was always open to defense counsel, after cross-examination, to challenge Dineen's qualifications, or to move to strike any aspects of Dineen's testimony that counsel believed were unreliable, or based on an unreliable methodology. We note as well that there is a reliable, and testable, methodology underlying Dineen's expert opinion -- because officers frequently stop and search those whom they have cause to believe are engaging in drug transactions, their observations and conclusions are subject to confirmatory testing through the results of the search.
The defendant points out that the prosecutor asked that Dineen be qualified as "an expert in controlled substances," rather than an expert in "street[-]level drug transactions." From the record, however, it appears that the prosecutor simply misspoke. Dineen did not testify to the identification of any controlled substance, but rather testified about the characteristics of street-level drug transactions -- the area that was focused on in his preliminary testimony regarding his background and experience.
The defendant also argues that the judge impermissibly went beyond the record by considering that Dineen had been qualified in prior proceedings before him. Our review of the record indicates that although the judge mentioned that Dineen had previously been qualified before him, the judge did so only after Dineen had already testified to his qualifications in this case. The record does not indicate that the judge based his decision on facts not of record. Moreover, judges may properly consider whether a proposed expert witness has been qualified in other proceedings. See Goodman, 54 Mass. App. Ct. at 391. There was no abuse of discretion or error of law in admitting the expert testimony. See Commonwealth v. Powell, 450 Mass. 229, 238 (2007).
In his reply brief, the defendant argues (somewhat inconsistently) that the judge, as a "veteran fact finder," did not require the aid of expert testimony to understand the facts present here, and that he should not have allowed Sergeant Dineen's testimony for that reason as well. The argument is without merit. The relevance or admissibility of evidence does not turn on the alleged subjective knowledge of a specific fact finder.
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2. Sufficiency of the evidence. The defendant next argues that the evidence was insufficient to establish that he was the seller, and not the buyer, in the transaction, or that a transaction had even occurred. The defendant points out that Officer Nunez did not see the defendant hand anything to Cormier, that only the defendant's passenger had money on his person, and that neither the defendant nor his passenger possessed crack cocaine when they were stopped. On a claim of insufficient evidence, we view the evidence at trial in the light most favorable to the Commonwealth, to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
Here, the evidence, taken most favorably to the Commonwealth, was plainly sufficient to establish that the defendant sold Cormier the crack cocaine later found in Cormier's mouth. The testimony of Officer Nunez established that Cormier approached the defendant's car with currency in his hand, reached his hand through the open car window, and that the defendant accepted the currency. Cormier then moved his hand to the area of his mouth and left the defendant's car, no longer holding currency. Upon immediate questioning, Cormier spat out a bag of crack cocaine. While Officer Nunez did not see the defendant hand anything to Cormier, he saw the defendant take Cormier's money, and a reasonable inference may be drawn from these facts that the defendant did so in exchange for the crack later found in Cormier's mouth. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 178-179 (2009) ("Although no witness observed a hand-to-hand drug transfer, the circumstantial evidence, combined with the expert testimony was enough for a reasonable jury to conclude that the defendant sold cocaine"). There were in addition a considerable number of other actions by Cormier and the defendant that bolster the reasonableness of this inference. These include the phone calls and "looking around" that was occurring in Cormier's car, and the defendant's erratic driving after he left the lot. Moreover, Sergeant Dineen's testimony was helpful in framing various aspects of the encounter as a "textbook drug deal."
Judgment affirmed.