Commonwealth v. Dossantos

97 Mass.App.Ct. 1101

140 N.E.3d 948 (Table)

COMMONWEALTH

v.Antonio DOSSANTOS.

15-P-1363

Appeals Court of Massachusetts.

Entered: January 27, 2020

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 ),² 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.

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.³ 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).⁴ 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.⁵ 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).

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."⁶ 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 471.⁷ 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).

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."⁸ 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).

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...