Commonwealth v. Gonzalez

90 Mass.App.Ct. 1121

65 N.E.3d 33 (Table)

COMMONWEALTH

v.Gener A. GONZALEZ.

No. 15–P–1299.

Appeals Court of Massachusetts.

December 15, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury-waived trial in the District Court, the defendant, Gener A. Gonzalez, was convicted of distributing heroin in violation of G.L.c. 94C, § 32(a). On appeal, he claims that the trial judge erroneously admitted "guilt by association" evidence, hearsay, and expert opinion testimony. Although we agree that the judge improperly admitted some of each type of evidence, we conclude that the one error to which the defendant timely objected was not prejudicial, and that the remaining minor errors did not result in a substantial risk of a miscarriage of justice, even in combination. We therefore affirm the judgment.

Discussion. We address the defendant's claims of error in turn, reserving for later discussion whether any errors, alone or together, require reversal of the conviction. "We review the judge's evidentiary ruling[s] for abuse of discretion." Commonwealth v. Dargon, 457 Mass. 387, 400 (2010).

1. Guilt by association evidence. a. Testimony that buyer was a known heroin user. The defendant first claims that the judge admitted impermissible guilt by association evidence when she allowed Salem police Officer Eddie Gaito to testify, over the defendant's objection, that the woman (buyer) he saw engage in a hand-to-hand transaction with the defendant was a known heroin user.² See Commonwealth v. Ortega, 441 Mass. 170, 179–180 (2004). We agree. Although such testimony might be admissible at a suppression hearing to prove, for example, probable cause to arrest the defendant, it is not admissible to prove the defendant's guilt at trial. See Commonwealth v. Kennedy, 426 Mass. 703, 709 n. 5 (1998), quoting from Brinegar v. United States, 338 U.S. 160, 174 (1949) (while prior drug arrest of person with whom defendant engaged in hand-to-hand transaction may be admissible at a probable cause hearing, "its inadmissibility at trial ‘illustrate[s] the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt’ "); Commonwealth v. Best, 50 Mass.App.Ct. 722, 725 (2001) ( "no question" that officer should not have been allowed to testify to prior arrest and conviction of buyer for possession of heroin). "Such evidence tainted the defendant with guilt by association and was not relevant to prove the defendant distributed heroin." Ibid. See Commonwealth v. McCoy, 59 Mass.App.Ct. 284, 289 (2003).³

b. Testimony that defendant had been seen with other known drug users. Gaito testified that he recognized the defendant, because Gaito had previously seen him in an area where neighbors had complained of drug activity, in the company of two other known drug users. The defendant claims on appeal⁴ that this testimony, too, amounted to impermissible guilt by association evidence. We agree, but only in part. Gaito's familiarity with the defendant was relevant and admissible to support his in-court identification. See Best, supra at 727 (officer's testimony that he had previously seen defendant in area known for drug deals permissible when defendant raised alibi defense; evidence also buttressed identification of the defendant and explained why police did not pursue him). But the defendant's past association with drug users was not probative of his guilt on this particular occasion, and served only to "impugn the defendant's character by insinuating his knowing intimacy with ... drug criminal[s]." McCoy, supra. See Ortega, 441 Mass. at 180 (error to allow officer to testify that he had seen the defendant previously with people he knew from drug investigations); Commonwealth v. Szemetum, 3 Mass.App.Ct. 651, 653 (1975) (error to admit testimony that defendant's boy friend had been seen in area with numerous drug arrests on "several unspecified prior occasions").

c. Testimony that transaction occurred in area known for drug deals. We are not persuaded by the defendant's contention that the officers improperly testified that, the transaction occurred in a high crime neighborhood and a "high crime area ... where several drug users frequently ... purchase narcotics." "[E]vidence that a particular area is known for drug dealing is one of many factors that can be considered in determining whether a drug transaction occurred." Best, supra. See Commonwealth v.. Rivera, 425 Mass. 633, 649 (1997) ("evidence that the incidents occurred in an area known for drug dealing" properly considered in determining sufficiency of evidence of possession of drugs with intent to distribute); Commonwealth v. Pena, 40 Mass.App.Ct. 905, 905 (1996) (same; area with "high incidence of drug dealing").

2. Hearsay evidence. The defendant next claims that the judge erred in admitting the officers' out-of-court statements to each other and to the buyer because such statements constituted inadmissible hearsay. Officer Tom Pelletier, Gaito's partner, testified that Gaito telephoned him after observing the interaction between the defendant and the buyer and said, "I just saw the exchange. I saw a deal." Pelletier also testified that, when he approached the buyer, he "told her that [they] had seen a drug transaction." Pelletier asked the buyer where she was hiding the heroin, and she removed a small bag of heroin from her mouth.

We agree with the defendant that the officers' out-of-court statements to each other and to the buyer constituted inadmissible hearsay to the extent they were admitted for the truth of the matter asserted, i.e., that a drug deal had occurred. See Mass. G. Evid. §§ 801(c), 802 (2016).⁵ However, we reject the defendant's claim that the buyer's conduct in removing the drugs from her mouth when Pelletier asked where she was keeping the heroin was hearsay (notwithstanding the prosecutor's argument that her conduct was a "tacit admission"). While a person's conduct may constitute a nonverbal statement subject to the hearsay rule, the person must have "intended it as an assertion." Mass. G. Evid. § 801(a) (2016). Here, the buyer's removal of drugs from her mouth after being detained by police, though highly incriminating, cannot fairly be characterized as an assertion or admission of any sort. Contrast Commonwealth v. DeJesus, 87 Mass.App.Ct. 198, 201 (2015) (check marks on photocopy indicating matching serial numbers on bills found in defendant's pocket). We therefore need not address the defendant's related contention that the buyer's conduct was a testimonial statement, admitted in violation of his confrontation rights. See Commonwealth v. Gonsalves, 445 Mass. 1, 6 (2005).

3. Opinion testimony. The defendant further claims that Pelletier's testimony that a drug transaction had taken place amounted to improper expert opinion testimony. We agree. "Expert testimony is generally admissible, in the broad discretion of the judge, whenever it will aid the [fact finder] in reaching a decision, even if the expert's testimony touches on the ultimate issues that the [fact finder] must decide.... An expert may not, however, proffer an opinion as to the guilt or innocence of the defendant." Commonwealth v. Woods, 36 Mass.App.Ct. 950, 951 (1994). Police officers with experience in narcotics investigations may therefore "describe in general terms how drug transactions are carried out on the street level," Commonwealth v. Frias, 47 Mass.App.Ct. 293, 296 (1999), so long as they do not "stat[e], in any form, whether such conduct amounts to a criminal offense." Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 581 (1998).

Pelletier twice referred to the interaction between the defendant and the buyer as a drug transaction.⁶ Such testimony is very similar to testimony that this court has previously held is "tantamount to an expression of opinion on the guilt of the defendant." Commonwealth v. Lovejoy, 39 Mass.App.Ct. 930, 932 (1995) (defendant "engaged in drug transaction"). See Woods, supra ("drug transaction had taken place"); Tanner, supra at 580 (same); Commonwealth v. Melton, 47 Mass.App.Ct. 904, 904 (1999) (exchange "was drug transaction"). Although Pelletier did not formally offer an opinion that a drug transaction had occurred, by referring to it as such, he essentially stated his belief that the defendant had distributed heroin. Such testimony "crossed the line between touching upon an ultimate issue and commenting on the defendant's guilt." Woods, supra at 952.

On the other hand, Gaito's testimony with respect to the hand-to-hand transaction, and how drug dealers typically keep their cash, was proper. Unlike Pelletier, Gaito did not opine that a drug transaction had taken place; only that, based on his training and experience, a transaction had occurred, wherein the defendant's and the buyer's "hands went out to each other," and they "swapped something." Likewise, Gaito did not testify that the cash found on the defendant's person indicated that a drug deal had taken place. Rather, he testified that, in general,⁷ based on his training and experience, "when drug deals are made ... the money ... will stay in the fold and usually the dealer will just put the money in his pocket ... in separate denominations." This testimony was explanatory and did not constitute an opinion that such conduct amounted to a criminal offense or that the defendant was guilty of a crime. See Tanner, supra at 581 (officer's testimony should be confined to "the explanation of specific unusual or cryptic conduct, without stating, in any form, whether such conduct amounts to a criminal offense").

4. Harmless error review. If we determine that the trial judge erred in admitting certain testimony, we consider whether the error was prejudicial or resulted in a substantial risk of a miscarriage of justice, depending on whether the defendant objected to the testimony. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005) ; Commonwealth v. Smith, 460 Mass. 385, 396 (2011). Of all...