Commonwealth v. Dany

1

COMMONWEALTH v. SAKUNTHEAR DANY.

No. 23-P-143

Appeals Court of Massachusetts

April 11, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant was convicted of three counts of distribution of fentanyl, in violation of G. L. c. 94C, § 32 (a); and one count of possession of cocaine, in violation of G. L. c. 94C, § 32A (a). On appeal, the defendant argues that the judge erred by admitting text messages allegedly exchanged between him and an undercover police officer and audio-visual recordings of three controlled drug purchases in evidence. He also argues that the judge erred by permitting the Commonwealth's expert to testify about the general characteristics of a drug user. We affirm.

Background.

In May 2021, the Massachusetts State police and the Lynn police department commenced an investigation into the illegal distribution of fentanyl in Lynn. As a part of the investigation, on May 12, 2021, a State police trooper working undercover sent a text message to a cell phone ending in 0629 and arranged to purchase $100 worth of fentanyl. In the text message exchange that followed, the trooper was initially directed to Flint Street, then redirected to Ray Street. The defendant arrived at Ray Street shortly after the trooper. He entered the front seat of the trooper's car and sold him a bag of fentanyl for $100. A few days later, on May 18 2021, the trooper sent another text message to the same cell phone number and arranged to purchase $300 worth of fentanyl. The trooper was directed to Flint Street by a return text message. The defendant was seen leaving a building on Flint Street and getting into the trooper's car. In the car, the defendant gave the trooper three "clear plastic twists" of fentanyl in exchange for $300.

On May 24, 2021, the trooper texted the same cell phone number ending in 0629 to arrange to purchase $300 worth of fentanyl. The cell phone user directed the trooper to Light Street and, at 3:27 P.M., texted that he was five minutes away. At 3:30 P.M., the police saw a Honda Accord approach that location and park. The defendant exited the rear seat of the Honda Accord and entered the trooper's car. The trooper gave him the money, which consisted of premarked bills, and the defendant gave the trooper one clear plastic bag containing fentanyl.

After the defendant exited the trooper's car, other police officers placed him under arrest. The officers seized from the defendant the $300 the trooper had paid and a plastic bag of cocaine. The driver of the Honda Accord that the defendant had arrived in attempted to drive away, but officers stopped the vehicle and ordered the driver and a passenger out. After the passenger exited the vehicle, she returned to it and "reached in the back and retrieved a cell phone," which the officers seized. The officers then placed a call to the cell phone number ending in 0629, and the phone taken from the backseat rang and displayed the trooper's first name and the phone number associated with the cell phone the trooper used to arrange the controlled buys.

All three drug transactions between the defendant and the trooper were recorded on what the trooper described as "a recording device on a[n] undercover cell phone." The device captured both audio and video recordings.

Discussion.

1. Admission of the text messages.

The defendant filed a motion in limine to exclude the text messages, arguing that there was insufficient evidence to establish that he was the person who authored the messages sent from the 0629 number. The judge denied the motion. At trial, the defendant objected when the text messages were entered into evidence. Accordingly, we review to determine whether the trial judge abused his discretion in admitting the text messages and, if so, whether the defendant was prejudiced thereby. Commonwealth v. Woods, 90 Mass.App.Ct. 271, 275 (2016), citing Commonwealth v. Rosario, 460 Mass. 181, 193 (2011).

Before admitting an electronic communication in evidence, a judge must determine whether sufficient evidence exists "for a reasonable jury to find by a preponderance of the evidence that the defendant authored" the communication. Commonwealth v. Purdy, 459 Mass. 442, 447 (2011).^[1] In making this determination, a judge "may look to 'confirming circumstances' that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be" (citation omitted). Purdy, supra at 449. See Mass. G. Evid. § 901(b)(11) (2023).

Here, there were sufficient confirming circumstances to allow a reasonable jury to find by a preponderance of the evidence that the defendant was the author of the text messages. Those circumstances include the numerous text messages between the trooper and the person associated with the 0629 phone number in negotiating price, quantity, time, and location in advance of three separate drug purchases; the defendant's arrival at Ray Street with the agreed-on quantity of fentanyl soon after a text message from the same phone that directed the trooper there for the first drug purchase on May 12, 2021; the defendant's arrival at Light Street after a telephone call from the same phone directed the trooper there for the third drug purchase and minutes after a text message from the phone stated he was five minutes away on May 24, 2021; and the recovery of the 0629 cell phone from the backseat of the Honda Accord, where the defendant exited from before getting into the trooper's car that same day. Because these facts constituted sufficient confirming circumstances to authenticate the text messages as having been sent by the defendant, the judge did not abuse his discretion in admitting the text messages as evidence. See Commonwealth v. Meola, 95 Mass.App.Ct. 303, 310-315 (2019).

2. The testimony of the drug distribution expert.

The defendant argues that the judge improperly allowed the prosecutor to elicit character evidence and negative profile testimony from a police sergeant who did not participate in the controlled buys, but rather testified as a drug distribution expert. Although the Commonwealth argues the issue is not preserved because the defendant objected on grounds other than those argued on appeal, we disagree. The defendant moved to exclude the sergeant's testimony in a motion in limine prior to trial, and then objected when the sergeant testified at trial. Those objections are consistent with the arguments the defendant has made here. Accordingly, we consider whether the judge's decision to admit the testimony involved "an abuse of discretion or other error of law," Commonwealth v. Grissett, 66 Mass.App.Ct. 454, 457 (2006), and, if so, whether that error was prejudicial, see Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

Trial judges have "broad discretion to allow the use of narcotics investigators as experts in drug cases." Commonwealth v. Miranda, 441 Mass. 783, 793 (2004), citing Commonwealth v. Johnson, 413 Mass. 598, 604 (1992). However, while expert opinion testimony is often grounded in the facts of the case at hand, care must be taken such that the expert does "not directly express his views on the defendant's guilt." Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 579 (1998). "[A]n opinion by a qualified witness on the subject of drug possession with intent to distribute, which speaks to the point that specific conduct, or the presence of certain facts or circumstances, as grounded in the trial evidence, would be 'consistent with' a drug transaction, has been deemed proper." Grissett, 66 Mass.App.Ct. at 458, quoting Commonwealth v. Lopez, 55 Mass.App.Ct. 741, 746 (2002). On the other hand, testimony that seeks to demonstrate that a defendant matched the profile of a type of criminal is inadmissible because it is irrelevant and unfairly prejudicial. See Commonwealth v. Day, 409 Mass. 719, 722-723 (1991). Similarly, negative profiling evidence, which purports to demonstrate that because a "defendant [does] not match the physical characteristics of a drug addict, he must be a drug dealer[,]" is also inadmissible. Commonwealth v. Horne, 476 Mass. 222, 227 (2017).

Here the defendant argues that it was error to allow the police sergeant to testify that the average dose of fentanyl by a typical user is between five milligrams and an eighth of a gram; that to ingest fentanyl, a typical user uses...