Commonwealth v. MacDonald
2011 Mass. LEXIS 150
SJC-10737
March 18, 2011
Supreme Judicial Court
Criminal, Controlled Substances, Sufficiency of Evidence, Expert Opinion, Melendez-Diaz, Lack of Drug Certificates
A jury convicted the defendant of distributing marijuana and committing a drug offense near a school. The defendant appealed, arguing that the judge erred in denying his motion for required findings of not guilty because the testimony of the Commonwealth’s expert was inadequate proof that the substance seized was marijuana. The SJC found that in these specific circumstances, the expert’s testimony regarding the substance at issue was sufficient evidence that it was marijuana. In addition, the SJC denied defendant’s invitation to require a cautionary jury instruction concerning forensic testing or to limit the Commonwealth’s use of the facts in evidence in forming a hypothetical question for an expert witness.
Facts
On October 7, 2006, at approximately 4 P.M., three plain-clothed narcotics officers patrolled the area of East Somerville, investigating street-level drug sales. The officers observed a typical street-level drug operation scheme involving the defendant. The defendant made phone calls for ten to twelve minutes while walking on a sidewalk along the street. He then crossed the street and stood near the front door of a fast food restaurant. Another individual driving an Oldsmobile arrived in the fast food restaurant parking lot and the two men exchanged greetings for five to six seconds. The driver went back to his vehicle, leaned inside, then walked into the restaurant. The defendant remained near the restaurant and shortly thereafter, another man driving a red car arrived in the parking lot. The defendant walked over to this new vehicle, had a conversation with him for roughly five to ten seconds, then exchanged something with the driver. The driver of the red vehicle then drove away. The defendant then walked back to the Oldsmobile, opened the driver’s side door, placed something on the seat and placed something in his left front pants pocket.
Two officers stopped the defendant and after identifying themselves, searched his left front pants pocket, which produced six twenty dollar bills but no drugs or drug paraphernalia. The third officer went to the Oldsmobile and observed, in plain view, two clear plastic bags containing what he believed to be marijuana on the driver’s seat. The officer also observed the remnants of a burnt marijuana cigarette in the ashtray. The police officers arrested the defendant.
The trial judge allowed the Commonwealth to offer the testimony of a non-percipient expert witness, Sergeant Detective David Montana (“Montana”), to identify the substance the officers seized as marijuana, to describe the process of street-level drug operations, and to offer an opinion whether a drug transaction had taken place based on the facts in evidence posed in the form of a hypothetical question. Montana had been a Medford police officer for thirty-nine years and in charge of Medford’s drug control unit for twenty years. In this time, he had been involved with approximately thousands of narcotics investigations with Medford police, surrounding police forces, the State police, and the Federal drug Enforcement Agency. He also received extensive training in identifying and detecting drugs by odor, sight and touch.
Concerning identifying the marijuana, Montana examined the two plastic bags of marijuana police seized from the Oldsmobile and identified the substance as marijuana through their physical characteristics (i.e. seeds, twigs, and green color) and its packaging.
Issue: Was Montana’s testimony sufficient to support the convictions beyond a reasonable doubt?
Defendant argues that Montana’s testimony that the substance in the plastic bags was marijuana was insufficient to support his conviction beyond a reasonable doubt. More specifically, the defendant first argues that in light of Melendez-Diaz v. Commonwealth, 129 S.Ct. 2527 (2009), the Commonwealth cannot rely solely upon expert testimony to identify a substance as a controlled substance if it presents no drug analysis certificate.
The SJC rejected defendant’s contention that Melendez-Diaz requires the notion that only an analyst’s testimony would be sufficient to prove the chemical composition of a substance. While the Commonwealth must prove that a substance is what it is purported to be beyond a reasonable doubt, this can be done by circumstantial evidence, including the testimony of experienced police officers. In addition, nowhere in Melendez-Diaz does the Supreme Court state that a prosecutor who uses the opinion testimony of an expert to establish the composition of a drug must also provide corroboration in the form of an analyst’s drug certificate of a substance. The SJC explicitly states that a prosecutor’s decision to proceed without a certificate of drug analysis does not violate Melendez-Diaz.
The defendant then argues that Montana’s testimony was insufficient because identification based upon visual identification of a drug can be unreliable, as held in Commonwealth v. Vasquez, 456 Mass. 350 (2010), and thus, Montana’s testimony does not prove the identification of the substance beyond a reasonable doubt. The SJC distinguished Montana’s testimony from the testimony in Vasquez on the grounds that the substance at issue in Vasquez was cocaine, a substance that carries with it a higher risk of misidentification by an expert. In addition, the SJC distinguishes the case at hand from all other cases with holdings similar to Vasquez on the grounds that all these cases deal with cocaine, not marijuana, and all do not concern the testimony of an expert witness as in the present case. Montana’s expertise, together with his testimony using objective criteria to identify the substance as marijuana and the covert nature of the defendant’s behavior in the parking lot, supported an inference from which the jury could conclude, beyond a reasonable doubt, that the substance was marijuana.
Issue 2: Should there have been a cautionary instruction to the jury regarding the expert’s testimony?
Defendant then argues that when an expert testifies as to the identification of a substance, the trial judge should issue a cautionary instruction to the jury in order to prevent the jury from assuming the expert’s testimony is inherently more reliable than a lay person’s testimony. The SJC rejected his argument and refused to adopt such a cautionary instruction because it is simply unnecessary. The trial judge in this instance, as should be done in all instances, informed the jury that they are the trier of fact and they alone would decide whether to accept or reject the expert’s testimony in whole or part.
Issue 3: Did the court err in allowing the Commonwealth to present a hypothetical situation identical to the facts of the case to their expert witness?
Lastly, the defendant argues that due to the factual similarity of the question posed to Montana and the facts in evidence, his opinion improperly commented on the defendant’s guilt. The SJC rejected this argument because it is well established law that a properly qualified expert witness is permitted to opine based on a hypothetical that is grounded in facts in evidence, so long as the subject matter must be within the witness’s filed of expertise and the witness must not directly express his views on the defendant’s guilt.
Judgments affirmed
Prepared by AAO
