Commonwealth v. Grady

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SJC-11968

COMMONWEALTH vs. JUSTIN GRADY.

Middlesex. March 7, 2016. - July 12, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Controlled Substances. Evidence, Expert opinion. Witness,
Expert. Practice, Criminal, Objection, Motion in limine,
Striking of testimony. "School Zone" Statute. Statute,
Amendment, Retroactive application.

Indictments found and returned in the Superior Court
Department on May 6, 2010.

The cases were tried before Elizabeth M. Fahey, J.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Michele R. Moretti for the defendant.
KerryAnne Kilcoyne, Assistant District Attorney, for the
Commonwealth

DUFFLY, J. A jury in the Superior Court convicted the

defendant of operation of a motor vehicle while under the

influence of liquor (OUI), in violation of G. L. c. 90, § 24 (1)
 2

(a) (1); possession with intent to distribute a class B

substance, in violation of G. L. c. 94C, § 32A (c); and

possession with intent to distribute a class B substance in a

school zone, in violation of G. L. c. 94C, § 32J. The Appeals

Court affirmed the convictions in an unpublished memorandum and

order pursuant to its rule 1:28, see Commonwealth v. Grady, 87

Mass. App. Ct. 1119 (2015), and we allowed the defendant's

application for further appellate review.

Prior to the start of the trial, the Commonwealth and the

defendant each filed a motion in limine regarding whether a

substitute analyst, Kenneth Gagnon, would be allowed to testify

(the analyst who tested the substance at issue having left the

testing laboratory and moved out of State). Concluding that

Gagnon could testify, the trial judge allowed the Commonwealth's

motion and denied the defendant's motion. In response to the

defendant's request that the judge "please note [his]

objection," the judge responded "sure." Subsequently, at trial,

Gagnon twice testified to the weight of the substance, which,

the parties both now recognize, was improper. A substitute

analyst may testify to his or her own opinion, but not, on

direct examination, to the original analyst's test results. See

Commonwealth v. Greineder, 464 Mass. 580, 586-587, cert. denied,

134 S. Ct. 166 (2013). See also Commonwealth v. Tassone, 468
 3

Mass. 391, 399 (2014). The defendant, however, did not object

to or move to strike the testimony.

The question with which we are primarily concerned is what

standard of review applies to the defendant's claim, on appeal

to this court, that the erroneously admitted testimony violated

his confrontation rights pursuant to the Sixth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights.1 If, as the defendant argues, he

preserved his appellate rights at the motion in limine stage, we

would review the error to determine whether it was harmless

beyond a reasonable doubt; if not, we must instead determine

whether the error created a substantial risk of a miscarriage of

justice. For the reasons set forth below, we conclude that, in

the circumstances presented here, the defendant did not properly

preserve his rights, and that therefore we review the error to

determine whether it created a substantial risk of a miscarriage

of justice. Having done so, we conclude that there was no such

risk. We also reconsider the distinction drawn in our case law

between pretrial efforts to preclude evidence on constitutional

grounds, through a motion in limine or motion to suppress, and

1
In the Appeals Court, the defendant did not focus on the
correct standard of review. The Appeals Court identified the
issue, and concluded that the erroneous admission of the
testimony regarding weight must be reviewed under the
substantial risk of a miscarriage of justice standard. One of
the reasons that we granted further appellate review was to
elaborate on this point.
 4

pretrial efforts to preclude evidence on other grounds, and now

do away with that distinction.

1. Background.2 In the early morning hours of February 18,

2010, State police Trooper Paul Conneely stopped the defendant's

motor vehicle on Alewife Brook Parkway in Cambridge after he saw

the defendant turn left at a red light and then proceed over a

bridge while straddling the roadway's dashed center lane.

Trooper Conneely subsequently arrested the defendant for OUI and

arranged to have the defendant's motor vehicle towed to the

State police barracks in the Brighton section of Boston. In the

course of conducting an inventory search of the vehicle, Trooper

Frank Parker found a plastic bag stowed in the molded

compartment at the base of the driver's side door. After he

found the bag, Trooper Parker brought it to Trooper Conneely,

who then had the bag submitted to the State police crime

laboratory (lab) for testing. The substance contained in the

bag was analyzed by Gina DeFranco, an employee at the lab.

Because DeFranco was no longer employed at the lab at the

time of trial, the Commonwealth, through a motion in limine,

sought to have Gagnon testify as a substitute analyst. The

defendant also filed a motion in limine to preclude Gagnon from

2
In his appeal to this court, the defendant does not
challenge his conviction of operation of a motor vehicle while
under the influence of liquor, and we therefore set forth in
detail the facts and trial court proceedings relevant only to
his drug convictions.
 5

testifying. At the hearing on the motions, the defendant

argued, essentially, that allowing Gagnon to testify in place of

the analyst who actually tested the substance would "circumvent"

his confrontation rights because he would have no opportunity,

and had no previous opportunity, to cross-examine the

nontestifying analyst. In response, the Commonwealth argued

that Gagnon's testimony would not be a "regurgitation" of the

nontestifying analyst's report; rather, he would testify to his

own opinion, formed on the basis of his review of the underlying

data (i.e., the nontestifying chemist's testing and analysis).

On the basis that the type of testimony outlined by the

Commonwealth is admissible, the judge allowed the Commonwealth's

motion and denied the defendant's motion. After the judge

issued her ruling, the defendant asked that she note his

objection, to which she responded "sure."

Subsequently, at trial, Gagnon described his role in the

case, testifying that he initially performed, at the lab, what

he referred to as a "technical review." Thereafter, he reviewed

the nontestifying analyst's report -- he "made sure that it was

in conformity with laboratory policies and made sure that, in

[his] opinion at that time, . . . what was said in the report

was in fact the results that were reported for the testing on

the evidence." After Gagnon provided additional testimony

detailing what is involved in a technical review, including that
 6

he spends a significant amount of his time reviewing drug cases,

the Commonwealth asked him whether, based on his training and

experience and his review of the underlying data in this case,

he had been able to reach an opinion as to what the tested

substance was. Gagnon replied "yes." When the Commonwealth

then asked for his opinion, the defendant objected. The judge

overruled the objection and Gagnon stated that it was his

opinion "the 4.40 grams of powder was found to contain cocaine"

(emphasis added). The defendant did not move to strike the

testimony. On redirect examination, the Commonwealth again

asked Gagnon for his opinion, again over the defendant's

objection, which the judge overruled, and Gagnon responded that

in his opinion "the 4.40 grams of powder contain cocaine"

(emphasis added).

2. Discussion. a. Standard of review. In the past, we

have generally required a defendant to object to the admission

of evidence at trial even where he or she has sought a pretrial

ruling to exclude the evidence either through a motion in limine

or by opposing a motion in limine. See Commonwealth v. Whelton,

428 Mass. 24, 25 (1998), citing Commonwealth v. Keniston, 423

Mass. 304, 308 (1996) ("a motion in limine, seeking a pretrial

evidentiary ruling, is insufficient to preserve appellate rights

unless there is an objection at trial"). In limited

circumstances, however, we have forgiven a defendant's failure
 7

to raise a contemporaneous objection at trial. For example,

when a defendant has sought, through a motion in limine, to

preclude evidence on constitutional grounds, we have treated the

motion as if it were a motion to suppress and have considered

the objection at the pretrial stage sufficient to preserve the

defendant's appellate rights. See Whelton, supra at 26. See

also, e.g., Commonwealth v. Santana, 465 Mass. 270, 278-280

(2013) (court reviewed erroneous admission of statements

defendant made to police for harmless error where defendant

argued in motion in limine that allowing statements would

violate his constitutional rights to silence and to counsel but

did not renew arguments, or object, at trial).3

Going forward, we dispense with any distinction, at the

motion in limine stage, between objections based on

constitutional grounds and objections based on other grounds.

We will no longer require a defendant to object to the admission

of evidence at trial where he or she has already sought to

preclude the very same evidence at the motion in limine stage.

The reason that we did not, in the past, require a defendant to

object at trial to something that he or she had previously

3
In addition, we have allowed a defendant's
nonconstitutional objection at the motion in limine stage to
excuse his failure to raise the same objection at trial when the
pretrial objection was coupled with a judge's indication that
the judge was "preserving" or "saving" the defendant's rights.
See Commonwealth v. Aviles, 461 Mass. 60, 66 (2011), and cases
cited. We address this issue infra.
 8

sought to preclude on constitutional grounds through a motion in

limine or a motion to suppress is that, in such a case, the

judge had already been made aware of, and had the opportunity to

consider, the objection. For example, in the Santana case,

where the defendant had filed a motion in limine to suppress

statements that he made to the police, the motion had been

denied, and the defendant had not objected when those statements

were introduced at trial, see Santana, 465 Mass. at 278-279, the

defendant did not need to object at trial because the judge had

already considered and rejected the same specific objection at

the motion in limine stage. We now recognize that the principle

applies regardless of whether the objection is based on

constitutional or other grounds.

We caution, however, that this approach is not as broad as

it may seem. An objection at the motion in limine stage will

preserve a defendant's appellate rights only if what is

objectionable at trial was specifically the subject of the

motion in limine. This case perfectly illustrates this point.4

The defendant argued, at the motion in limine stage, that

allowing Gagnon to testify as a substitute for DeFranco would

violate his confrontation rights; he did not make any other

claim. Seeking to preclude a witness from testifying altogether

4
Commonwealth v. Almele, 474 Mass. (2016), which
involves improper expert witness testimony and which we also
decide today, similarly illustrates the point.
 9

(i.e., a challenge to who may testify), however, is not the same

as seeking to preclude the introduction of specific information

that the witness might provide (i.e., a challenge to the

substance of what will be testified to). In the former

circumstance, the objection is not to the specific testimony

that the witness might offer, and the judge, therefore, has not

had an opportunity, prior to trial, to consider the propriety of

specific testimony. Where what is being addressed and resolved

at the motion in limine stage differs from what occurs at trial,

the defendant still must object at trial to preserve his or her

appellate rights.

This is particularly true where the case involves a

substitute analyst, as the circumstances of this case make

clear. At the hearing on the parties' motions in limine, the

focus of the discussion was on, and the judge was considering,

whether Gagnon should be allowed to testify at all. The judge

was not considering the specifics of what Gagnon might say,

other than to determine that, in accordance with existing law,

he would testify as to his own opinion on the basis of his own

review of the underlying data. See, e.g., Greineder, 464 Mass.

at 584 ("[W]e draw a distinction between an expert's opinion on

the one hand and the hearsay information that formed the basis

of the opinion on the other, holding the former admissible and

the latter inadmissible."); Commonwealth v. Barbosa, 457 Mass.
 10

773, 783-784 (2010), cert. denied, 563 U.S. 990 (2011)

(Commonwealth expert may testify to own opinion but not, on

direct examination, to conclusion or opinion of second,

nontestifying expert). When the judge ruled that Gagnon would

be allowed to testify, the presumption was that he would do so

within the parameters established by our case law. The

defendant's objection at the motion stage went only to that

ruling -- that is, it went only to allowing Gagnon to testify as

a substitute for DeFranco. It did not go to the specific

questions that would be asked or the answers that would be given

in the course of that testimony.

It was incumbent on the defendant to object at trial to any

specific testimony that was not directly at issue in the motion

in limine and that he believed to be improper. Although the

defendant objected each time the Commonwealth asked Gagnon for

his opinion regarding the tested substance, the questions

themselves were not improper and the judge rightly overruled the

objections. Gagnon's answers, to the extent they referred to

weight, however, were improper, and the defendant should have

moved to strike them. Cf. Commonwealth v. Womack, 457 Mass.

268, 272-273 (2010) (where, in trial for murder in first degree,

defendant failed to move to strike testimony, court reviewed its

erroneous admission under standard of substantial likelihood of

miscarriage of justice). See also M.S. Brodin & M. Avery,
 11

Massachusetts Evidence § 1.3.1, at 6 (8th ed. 2007) ("A motion

to strike is the proper means of eliminating an answer that is

objectionable either on substantive grounds . . . or on the

ground that it is non-responsive"). He did not, in short, lodge

an objection either before or at trial to the very thing that he

argues on appeal was improper.

Furthermore, that the judge, at the hearing on the motion

in limine, responded affirmatively to the defendant's request

that she note his objection does not aid the defendant where,

again, the only objection at that time went solely to the

judge's ruling that Gagnon could testify. Even in those limited

circumstances where a defendant's rights have been "preserved"

or "saved" by a judge noting a particular objection, that

objection has been to the specific evidence subsequently

admitted. See, e.g., Commonwealth v. Kee, 449 Mass. 550, 553

n.5 (2007) (where judge noted defendant's objection to denial of

motion in limine and "saved" defendant's rights regarding

evidence related to marked ten dollar bill, defendant's failure

to object to that particular evidence at trial was not fatal).

See also Commonwealth v. Aviles, 461 Mass. 60, 66 (2011), and

cases cited.

We add a second word of caution here: a judge ought not to

engage in the practice of indicating at the motion in limine

stage that the judge is "saving" or "preserving" a defendant's
 12

appellate rights. Because a defendant must be careful to object

at trial to anything that was not specifically at issue in the

motion in limine, an indication from a judge that the

defendant's objection is "preserved" may lull a defendant into

failing to raise a necessary objection at trial. Where the

better practice is for a defendant to object at trial regardless

of a motion in limine, any implication that a defendant's rights

are being "preserved" may inadvertently lead to just the

opposite.

When Gagnon's testimony fell outside the parameters of what

was permitted for a substitute witness in the circumstances

presented here, the defendant was required to move to strike

that testimony in order to preserve his appellate rights.

Because he failed to do so, we review the admission of the

testimony to determine whether it created a substantial risk of

a miscarriage of justice. We turn now to that question.

b. Testimony regarding weight of substance. In reviewing

an error to determine whether it created substantial risk of a

miscarriage of justice, we review the evidence and the case as a

whole "to determine 'if we have a serious doubt whether the

result of the trial might have been different had the error not

been made.'" Commonwealth v. Azar, 435 Mass. 675, 687 (2002),

quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). We

are satisfied, on the record here, that the result of the trial
 13

would not have been different, and that the jury fairly

concluded that the defendant was guilty of possession with

intent to distribute. The Commonwealth's case was strong, and

the challenged evidence as to the weight of the cocaine was not

necessary to prove its case.

At trial, Trooper Parker, who found the plastic bag of

drugs in the defendant's vehicle, testified that he observed

that the bag had a twist tie at the top and a number of plastic

bags inside, each of which had a twist tie and contained a white

powdery substance. Trooper Conneely testified similarly. He

stated that Trooper Parker brought him a clear plastic bag that

contained twelve plastic bags, which Trooper Conneely referred

to as "twists" and which contained a white powder. Trooper

Conneely also testified that, on the basis of his training and

experience, the white powder inside the plastic bags found in

the defendant's vehicle was consistent with cocaine and that

"twists" are the most common "street-level" packaging for

cocaine.

Detective James Hyde of the Somerville police department,

who was not involved in the defendant's arrest, provided expert

testimony on the manner in which cocaine is generally packaged

for street-level distribution. He stated that small amounts of

cocaine are packaged in individual plastic bags, and that those

bags, in turn, may be "double-bag[ged]" in a larger plastic bag.
 14

He also stated that the most common amount of cocaine that he

sees for personal use at the street level in the Cambridge and

Somerville area (the defendant was arrested in Cambridge) is

usually one-half gram or one gram, although from time to time he

might see as much as an "eight-ball" (three and one-half grams).

He testified that each of the twelve individual bags of cocaine,

entered as an exhibit at trial, contained in the "ballpark" of

one-half gram or one gram amounts that would sell for forty to

sixty dollars (for one-half gram) or as much as one hundred

dollars (for one gram). He further indicated that it would not

be consistent with personal use to purchase twelve individual

bags of this size because it would not be "cost effective." A

personal user could purchase an "eight ball" for $150 to $180,

but a dealer who has cocaine packaged in one-half gram amounts

is not going to sell the user seven individual bags (which would

amount to three and one-half grams, or an "eight ball") for that

amount when the dealer could instead sell them separately for a

total of approximately $350.5

5
The lack of any personal-use paraphernalia was also, in
Detective James Hyde's opinion, more consistent with an intent
to distribute than with personal use. On cross-examination,
however, Hyde agreed that, in terms of personal-use
paraphernalia for powder cocaine, when a user first purchases
the cocaine, the user does not always have something on his or
her person for purposes of using the cocaine right away, and,
further, that something as simple as a dollar bill would suffice
for ingesting the drug. The point probably has limited
significance here because the defendant did not argue at trial
 15

Furthermore, to the extent that the defendant now argues

that his conviction cannot stand because there was no evidence

as to the weight of the drugs other than Gagnon's erroneously

admitted testimony, the argument is misplaced. The weight of

the drugs is not an element of the crime of possession with

intent to distribute. This case, then, is not akin to those on

which the defendant relies involving convictions of drug

trafficking -- a crime for which weight is an element -- where

the only evidence as to weight was erroneously admitted, leaving

the jury with no reliable means to assess an element of the

crime. See, e.g., Commonwealth v. Montoya, 464 Mass. 566, 567

(2013) (erroneous admission of certificates of drug analysis,

which were only reliable evidence of weight, not harmless beyond

reasonable doubt). We perceive no substantial risk of a

miscarriage of justice stemming from the erroneous admission of

the testimony that referred to weight in this case.

c. Testimony regarding identity of substance. In addition

to his argument regarding the erroneous admission of Gagnon's

testimony regarding weight, the defendant contends that the

admission of Gagnon's testimony regarding the composition of the

substance was erroneous. There was no error. Our law allows a

that the drugs were intended only for personal use. Rather, in
addressing the drug charges in his closing argument, he focused
mainly on his assertion that the drugs were not his but rather
belonged to the passenger who was in the motor vehicle with him
when he was stopped and arrested.
 16

witness such as Gagnon, who did not himself conduct the relevant

tests, to testify to his own opinion based on the data generated

by the nontestifying analyst. See, e.g. Greineder, 464 Mass. at

603. In the Greineder case, we confirmed established law that

"[e]xpert opinion testimony, even that which relies for its

basis on . . . test results of a nontestifying analyst not

admitted in evidence, does not violate a criminal defendant's

right to confront witnesses against him under either the Sixth

Amendment or art. 12 of the Massachusetts Declaration of

Rights." Id.

Gagnon properly testified to his own opinion regarding the

composition of the tested substance. That opinion was formed on

the basis of the tests conducted, and the results reached, by

the nontestifying analyst, which Gagnon reviewed at the time the

tests were conducted as well as prior to testifying at trial.

Furthermore, the defendant thoroughly and meaningfully cross-

examined Gagnon. See Greineder, 464 Mass. at 596-598

(considering meaningful cross-examination of substitute

analyst). He elicited testimony from Gagnon that, among other

things, Gagnon did not directly observe the testing conducted by

the nontestifying analyst; that Gagnon did not speak to the

nontestifying analyst about the steps she had taken in

conducting her analysis; and that "there is room for human

error." Gagnon's opinion testimony regarding the composition of
 17

the substance -- that it was cocaine -- did not violate the

defendant's right to confront the witness against him, and was

not, thus, erroneously admitted.

d. School zone violation. Finally, the defendant urges us

to revisit our decision in Commonwealth v. Thompson, 470 Mass.

1008 (2014), considering the retroactivity of St. 2012, c. 192,

§ 30, which amended G. L. c. 94C, § 32J, the school zone

statute. In Commonwealth v. Bradley, 466 Mass. 551, 561 (2013),

we concluded that the amendment "applies to all cases alleging a

school zone violation for which a guilty plea had not been

accepted or conviction entered as of" August 2, 2012, the

effective date of the amendment. Subsequently, in the Thompson

case, we declined to extend that rule to cases where a defendant

has been tried and convicted before the effective date but whose

direct appeal was still pending on that date. Thompson, supra

at 1010. The defendant here falls into the Thompson category,

and we see no reason to revisit our decision. The amendment

does not apply to him.

3. Conclusion. In the future, a defendant's pretrial

objection, at the motion to suppress as well as the motion in

limine stage, will preserve the defendant's appellate rights.

The basis for the objection -- whether constitutional or not --

will no longer matter, but, as has always been the case, the

preservation of appellate rights will apply only to what is
 18

specifically addressed in those proceedings. In circumstances

like those presented here, where prior to trial a defendant

seeks to preclude a particular witness from testifying on

constitutional grounds, the defendant must also object at trial

to any questions that seek to elicit testimony that falls

outside of what was addressed at the pretrial stage and move to

strike the specific testimony once it has been elicited in order

to preserve his or her appellate rights. To the extent that the

defendant failed to do that, we have reviewed the admission of

the testimony to determine whether it created a substantial risk

of a miscarriage of justice. For the reasons discussed above,

we conclude that it did not.6

Judgments affirmed.

6
The defendant raised additional issues in the Appeals
Court, regarding the judge's charge to the jury, that he has not
raised in this court. Because he has not raised them here, we
have not considered them.