Commonwealth v. Almele ( 2015 )

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13-P-1351 Appeals Court
COMMONWEALTH vs. MARWAN M. ALMELE.
No. 13-P-1351.
Bristol. December 9, 2014. - March 27, 2015.
Present: Cohen, Fecteau, & Massing, JJ.
Controlled Substances. Joint Enterprise. Evidence, Joint
enterprise, Expert opinion. Practice, Criminal, Objection,
Motion in limine. Witness, Expert.
Complaint received and sworn to in the New Bedford Division
of the District Court Department on October 22, 2010.
The case was tried before Christopher D. Welch, J.
Patrick A. Michaud for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
FECTEAU, J. The defendant appeals from his convictions,
following a jury trial in the District Court, of unlawful
possession of class B and C controlled substances with intent to
distribute, in violation of G. L. c. 94C, §§ 32A(a) and 32B(a),
respectively, and possession of a class B controlled substance,
2
1
in violation of G. L. c. 94C, § 34. He contends that the judge
erred in permitting statements of a purported coventurer to be
admitted against him without sufficient evidence, independent of
those statements, of the existence of such a joint venture or
conspiracy of which he was a part. He further contends that his
motion for a required finding of not guilty was denied in error
as evidence of his involvement as a joint venturer was
insufficient. He also complains that opinion testimony from a
police officer was erroneously admitted in evidence and that the
officer impermissibly offered an opinion on the defendant's
guilt. As we are unpersuaded by these contentions, we affirm
the convictions.
Background. From the evidence admitted during the
Commonwealth's case in chief, including statements of the
defendant's nephew, alleged by the Commonwealth as a coventurer
of the defendant, the jury could have found the following facts.2
On October 21, 2010, Captain Paul Oliveira of the New Bedford
police department drug unit began a drug investigation as a
1
The defendant was also acquitted of a charge of conspiracy
to violate drug laws, G. L. c. 94C, § 40, after waiving his
right to a separate trial.
2
Before the jury were allowed to hear the content of any of
the police conversations with the coventurer, the judge required
the Commonwealth to introduce independent evidence of the joint
venture. Following the judge's preliminary ruling, and a
limiting instruction to the jury, the prosecutor was permitted
to backtrack and fill in the chronology of events with the
statements in question.
3
result of a call to the department's anonymous tip line. He
called the phone number that was provided through the tip, and
spoke a number of times with one Ahmad, a person whose voice he
recognized as someone who had provided information to him in an
investigation a few years earlier. In speaking with Ahmad,
Oliveira testified that he had heard that Ahmad was "trying to
get rid of some Percocets," and Oliveira indicated that he was
interested in purchasing the pills. Ahmad agreed, but explained
that the pills were not his but his uncle's, who got thirty-
milligram and ten-milligram pills by prescription, 180 of each
per month, but had just twenty thirty-milligram pills remaining
for sale, for "500 bucks, thirty bucks a pill." He continued
that his uncle "likes selling them in 100, 100-pack," and would
give a much better deal if Oliveira bought in that quantity.
Ahmad explained that his uncle had "just sold 100, his last 100
of the, ah, of the tens," for $400, or four dollars per pill,
and if he [Oliveira] wanted to buy 100 pills next time, Ahmad
said, he could get him a better deal than the thirty dollars per
pill he was currently offering.
They discussed arrangements for a purchase, including that
Oliveira would have to pick him up and bring him to his uncle's
house, as Ahmad had no other way of getting there, and because
his uncle was babysitting and could not get to Ahmad's house.
The arrangement also included the location for picking him up,
4
that the $500 be shown up front, and that Ahmad would then
direct Oliveira to his uncle's house, from which his uncle would
emerge and do the deal outside so that Oliveira would neither
have to give the money to Ahmad nor have to go inside the house
himself. Because Oliveira was fearful that Ahmad would
recognize him, he arranged with Detective Candido Trinidad,
another member of the narcotics unit, to act in his stead,
having explained to him the arrangements he had made with Ahmad.
At the time Trinidad approached the location to pick up
Ahmad, Oliveira, who was surveilling him, was on the phone with
Ahmad, and could see Ahmad walking down the street "watching,"
while talking on the phone with him. Trinidad picked up Ahmad,
who sat in the front passenger seat, and they drove to 480
Cottage Street, Ahmad's uncle's house. Along the way, they
spoke about the possibility of Trinidad's purchasing more pills
in the future from Ahmad's uncle, at a discounted rate. Ahmad
also kept asking Trinidad if he was a police officer, but
Trinidad assured him that he was not.
As they neared the house and stopped, and after Ahmad
presumably made a cellular telephone call to his uncle, who did
not pick up, Ahmad said that he "would go in and get him and
then come back out." When Ahmad went inside the house at 480
Cottage Street, Trinidad called Oliveira and told him Ahmad was
going to get the "third party," since Ahmad having to get out of
5
the car had not been discussed previously. Minutes later, Ahmad
came out of the house, got back in the front passenger seat of
Trinidad's car, and told him that his uncle would "be right
out." After another minute or two, the defendant came out of
the house, and Ahmad said, "That's my uncle right there." The
defendant walked to the passenger side of the car, and "he
leaned over, he looked in, and he put his hand out." Trinidad,
holding the money in his left hand to make it visible to the
defendant, shook the defendant's proffered hand with his right
hand, as the defendant "stayed leaning over, leaning into the
car." At this point, Oliveira gave the order to other
detectives to move in and seize the defendant.
The defendant was searched and found to have twenty
Percocet tablets in a small Ziploc bag in his sweatshirt pocket,
another three thirty-milligram Percocet tablets loose in a
sweatshirt pocket, thirty Klonopin pills and two Suboxone
tablets in his right front coin pocket, and $416 in cash. In
response to the defendant's proffered explanation that he had
prescriptions, and his offering to show the prescription bottle
for the Percocets, police retrieved the bottle from inside the
house, but it was empty; the prescription label indicated it had
been filled with a month's supply of 180 thirty-milligram pills
six days earlier. The defendant failed to provide an
explanation for the absence of the rest of the pills.
6
Lieutenant Dennis Ledo, testifying as a nonpercipient
expert witness, explained various methods of drug investigation,
including "controlled" and "undercover" drug buys. He testified
to typical methods of street dealings in illegal drugs,
including prescription drugs. Ledo's explanation included the
use of subordinate dealers, termed "runners," who brokered
deals, met with potential buyers on the seller's behalf, and
placed orders with the seller on the buyer's behalf, often for a
share of either the cash or the drugs. Ledo explained that in
the greater New Bedford area, prescription drugs would be
packaged in clear plastic bags, and Percocets would sell for
"[r]oughly a dollar [per] milligram." He also explained to the
jury the different forms that oxycodone took (Percocet,
Oxycontin), that people both swallow and snort it, and that
other prescription drugs like Xanax and Klonopin were also
"bought and sold on the street in New Bedford."
Noting for the jury that Ledo had not been involved in the
case other than to give opinion testimony based on reading "the
[investigative] report regarding" it, the prosecutor asked,
"Now, if you could describe for the jury if an individual is
arrested with, um -- and, I believe it was, ah, plastic baggies
of two, ah, Suboxone tabs, thirty Klonopin, as well as twenty
Percocets, along with $416 on his person, what significance
would that have for you?" Defense counsel objected, and the
7
judge noted the objection and delivered a two-page jury
instruction explaining that Ledo was going to be allowed to
"render an opinion based on facts in evidence," but the jury
were under no compulsion to accept that opinion or to value him
more highly as a witness simply because he was allowed to give
opinion testimony, and that it was up to them to determine
whether the asserted facts underlying his opinion "have been
proven to begin with." Following this lengthy instruction, the
prosecutor asked Ledo whether he was "able to form an opinion
after reading the . . . report"; he said he had. The
prosecutor asked him what the basis of his opinion was; he
replied, "The basis was . . . my training and experience, based
on the facts that, ah, I read in the, ah, in the investigative
report." The prosecutor then asked him, "And, ah, what was your
opinion after reading this report?" He replied, "My opinion was
that the, ah, drugs that were found on the [d]efendant were
intended for distribution." Defense counsel made no objection
to the form of this answer. Ledo then went on to explain in
detail which facts in the report led him to this conclusion,
based on his experience with narcotics cases generally.
The defense. Given the verdict, the jury obviously
discredited the defendant's evidence, consisting of testimony
from his former neighbor, Dennis Cavaleri, and the defendant's
wife, both of whom offered an explanation for his possession of
8
the Suboxone and Klonopin pills.3 Also testifying was his former
tenant Michael Stuart, as well as the defendant. Stuart
testified that, on October 21, it appeared that the defendant
was preparing to take a trip to Boston, as Stuart saw the
defendant taking pills from two bottles and putting them into
plastic bags. Stuart also testified that he saw the defendant
walk over to the car in which Trinidad and Ahmad were sitting
and saw him arrested within seconds as he turned to leave.
Finally, in addition to corroborating the information from
the prior defense witnesses, the defendant testified that Ahmad
called him that day, and later came over to his house and stated4
that a man in the car outside had a gun to his head and he asked
the defendant to come outside to look at the man, which he did,
saying hello to the unknown man. Shortly thereafter, he was
arrested. The defendant explained that his prescription pill
bottle was completely empty because he kept the remaining pills
3
Cavaleri testified that the defendant had given him a ride
earlier in the day to a store, and that Cavaleri had
accidentally left "[t]wo Suboxone tablets," which had been
prescribed to him, in the defendant's car, which the defendant
agreed to hold for him until he could pick them up later. The
defendant's wife testified that her prescription for forty-five
Klonopin pills had just been refilled and picked up by the
defendant. In preparation for a trip to Boston, the defendant
had counted out and bagged forty-five Klonopin pills and
"h[e]ld[] onto them" for her, and did the same with his own
medicine.
4
Ahmad's hearsay statements, as related by the defendant,
were admitted only for consideration of the defendant's state of
mind upon hearing the statements.
9
in a different place, and the cash on his person derived from a
$500 rent payment that Stuart's girlfriend had just given him.
Discussion. A. Coventurer statements. The defendant
claims that the judge erred in his preliminary finding that
there was sufficient evidence, independent of the statements of
his nephew, that he and Ahmad were engaged in a joint criminal
enterprise to permit the jury to consider Ahmad's statements
against him. Relatedly, he also contends that the judge denied
his motion for a required finding of not guilty in error, as
evidence of a joint venture was insufficient to submit the case
to the jury even when the statements of Ahmad are considered.
See Mass. G. Evid. § 801(d)(2)(E) (2014).
The judge properly considered and ruled, on a preliminary
basis, whether to admit the statements of Ahmad. As the Supreme
Judicial Court has explained, a "judge may allow the admission
of such statements, but only after a preliminary determination,
based on a preponderance of admissible evidence other than the
out-of-court statements themselves, that a criminal joint
venture existed between the declarant and the defendant, and
that the statement was made in furtherance of the venture."
Commonwealth v. Bright, 463 Mass. 421, 426 (2012). "Such a
preliminary determination permits a coventurer's out-of-court
statements to come before a jury but does not suffice to permit
the jury to consider the statements as bearing on the
10
defendant's guilt. Rather, the jury must first make their own
independent determination, again based on admissible evidence
other than the statements themselves, on 'the same questions'
that the judge must pass on." Id. at 426-427, quoting from
Commonwealth v. Borans, 379 Mass. 117, 145 n.26 (1979). See
Commonwealth v. Braley, 449 Mass. 316, 319-320 (2007).
Here, there was evidence independent of the content of
Ahmad's statements.5 Therefore, on the facts presented, the
judge properly exercised his discretion to permit the jury to
consider Ahmad's statements as made during the course of, and in
furtherance of, the joint venture; similarly, the jury were
warranted in determining the existence of the venture, of which
the defendant was part.6
B. Drug expert testimony. 1. Preservation of issue. We
disagree with the defendant's assertion that he properly
preserved his claim that the Commonwealth's drug expert
erroneously intruded on the jury's function by offering his
5
See discussion supra.
6
We also consider the Commonwealth's evidence of a joint
venture, taken in a light most favorable to the Commonwealth, to
have been sufficient to submit the case to the jury. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). We
take Ahmad's statements into account, notwithstanding the
defendant's argument concerning their admissibility. See
Commonwealth v. Bright, supra. We also find the defendant's
contention that the judge improperly failed to "suppress" the
coventurer statements to be nothing more than a recast of his
argument that the admission of the evidence was in error, and
thus, it is likewise, meritless.
11
opinion of the defendant's guilt. We acknowledge that the
judge, at the conclusion of the voir dire hearing concerning the
Commonwealth's motion in limine, "preserved" the defendant's
general objection to Ledo's testimony and excused further need
for objection during trial.7 Nonetheless, we consider this claim
of error not to have been properly preserved, since the
questions posed to the witness were not objectionable. Instead,
the error, if any, was the language used by the witness to
answer one question. In such a circumstance, the defendant was
obligated to object or move to strike the answer, which was not
done. See Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010)
("Defense counsel successfully objected to the statement that
contained the first allegedly accusatory statement, but he did
not move to strike the statement. This matter is not
preserved"). See also Commonwealth v. Martin, 48 Mass. App. Ct.
391, 393 (1999); Commonwealth v. Rosado, 59 Mass. App. Ct. 913,
914 (2003). Consequently, we review the defendant's claim to
determine whether a substantial risk of a miscarriage of justice
was created. Before we address the merits of this issue,
7
The defendant's contention during the hearing on the
Commonwealth's motion in limine was primarily that the opinions
intended to be offered by the Commonwealth's expert,
particularly on the methods of street dealing and packaging of
prescription drugs and the use of runners, was within the common
knowledge and experience of the jury.
12
however, we must express a note of caution about the practice of
"saving rights."
Although we recognize that a judge may "save" or "preserve
rights," which could excuse, in some circumstances, the need for
objection contemporaneous with the actual proffer of evidence,
see Commonwealth v. Aviles, 461 Mass. 60, 66 (2011), we
discourage the practice. While the intended purpose of a motion
in limine is worthwhile, its purpose is "to prevent irrelevant,
inadmissible or prejudicial matters from being admitted in
evidence." See Boston v. Board of Educ., 392 Mass. 788, 796
(1984), quoting from Commonwealth v. Hood, 389 Mass. 581, 594
(1983). A motion in limine is not an adequate substitute for a
properly placed objection. See Commonwealth v. Whelton, 428
Mass. 24, 25-26 (1998). By the judge saving rights, and
excusing the need for a contemporaneous objection, the proponent
of evidence challenged on appeal is deprived of an opportunity
during trial to rephrase the question in light of an objection.
Moreover, by requiring an objection at the time the evidence is
actually offered, the judge is given an opportunity to
reconsider his earlier ruling to determine its continued
correctness in the context of a question actually posed and the
answer given. As stated in Commonwealth v. Jones, 464 Mass. 16,
18 (2012), "[w]ithout an objection at trial, which gives the
judge an opportunity to reconsider the issue in context, any
13
harm resulting from a ruling in limine is purely speculative.
See Luce v. United States, 469 U.S. 38, 41-42 (1984) ('The
ruling is subject to change when the case unfolds . . . .
Indeed even if nothing unexpected happens at trial, the . . .
judge is free, in the exercise of sound judicial discretion, to
alter a previous in limine ruling')."8
2. The merits. The defendant correctly does not take
issue here with the qualifications of Ledo to give opinion
testimony on the illegal street trade of controlled substances.
Rather, he complains, first, that opinions expressed by the
officer concerning, for example, typical street drug traffic,
the packaging of drugs, and the use of runners as middlemen were
unnecessary, because they were within the common knowledge of
jurors. In addition, the defendant contends that the opinions
were invalid since they were based in part upon unreliable
evidence from Ahmad. Primarily, though, he contends that the
officer's opinion that "the drugs . . . found on the defendant
were intended for distribution," and that the $416 found on him
were "proceeds from the sale of drugs," invaded the province of
8
To the extent that the failure of trial counsel to move to
strike this answer sounds in ineffectiveness, an issue that was
held determinative in the case of Commonwealth v. Sepheus, 468
Mass. 160, 171-172 (2014), we note that, unlike the case here,
in Sepheus the expert's opinion was so critical on the element
of intent to distribute that, without it, allowance of a motion
for a required finding was held to have been necessary.
14
the jury because the officer commented on the guilt of the
defendant, the ultimate issue to be decided by the jury.
It is well established that "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). "The judge's decision to allow this type of evidence
'will be reversed only where the admission constitutes an abuse
of discretion or error of law.' Commonwealth v. Johnson, 410
Mass. 199, 202 (1991)." Commonwealth v. Little, 453 Mass. 766,
768-769 (2009). As the court in Little further explained,
"[o]therwise qualified expert testimony is admissible if, 'in
the judge's discretion, the subject [of such testimony] is not
within the common knowledge or common experience' of the trier
of fact, and the testimony will assist the trier of fact in
determining a fact in issue or in understanding the evidence."
Id. at 768, quoting from Commonwealth v. Miranda, supra at 792-
793. "That rule, however, is not rigid; and even in cases where
the subject matter may be within the knowledge or common
experience of the trier of fact, expert testimony will be
admissible if, in the judge's discretion, it may be of
assistance." Ibid., quoting from Miranda, supra. See P.J.
15
Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 7.6.1
(7th ed. 1999). See generally Mass. G. Evid. § 702 (2008-2009).9
Here, the closer question is whether the conclusory
opinions of Ledo, to the effect that the drugs found in the
possession of the defendant were being held for distribution,
improperly invaded the province of the jury. Generally,
"[o]pinion evidence elicited from . . . a qualified expert
properly informs the jury of the significance of evidence
generally, and does not state an opinion as to the ultimate
issue of intent, which must be resolved by the jury (or judge as
a fact finder)." Commonwealth v. Grissett, 66 Mass. App. Ct.
454, 457 (2006). "Opinion testimony may 'touch' on an ultimate
issue in the case . . . if couched appropriately, but such
testimony can never directly speak to, or express a point of
view, on the issue of guilt or innocence." Id. at 457-458. See
Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998).
"Where a specified intent is an element of the crime, a
witness's opinion as to what the defendant intended is improper.
9
With respect to the witness's generalized opinions about
the typical methods of street drug operations, including the
packaging and value of prescription drugs in illicit sales and
use of runners, we see no error or abuse of discretion, as
support for such opinion testimony can be seen in numerous
decisions, several of which are cited supra. Nor do we agree
with the defendant's unsupported characterization of Ahmad as an
"unreliable" basis for the officer to rely, in forming his
opinions; moreover, the Ledo's opinions were primarily based on
the testimony of the lead and undercover officers, the drugs
found on the defendant, and other facts in evidence.
16
Standing alone, such evidence cannot sustain a conviction."
Commonwealth v. Santiago, 41 Mass. App. Ct. 916, 917 (1996).
See Commonwealth v. Woods, 419 Mass. 366, 375 & n.13 (1995)
(improper testimony from officers that, "as a matter of their
expert opinion, . . . a drug transaction had taken place").
The drug experts at issue in Woods and Tanner were
percipient witnesses to the drug transactions at issue; in
addition to having described what they observed, they also
concluded that the defendant had committed a particular offense,
based on their observations and expertise. Contrary to the
situation in Woods, supra, and Tanner, supra, the witness here
was not percipient to the events in question, and thus, concerns
about a percipient witness also testifying as an expert witness
are not implicated. Compare Tanner, supra at 579, 582 (noting
that "[i]t is easy for the line between specific observations
and expert generalizations to become blurred," and "[t]he
testimony of a combined expert/percipient witness has unique
persuasive value").
Here, Ledo began his testimony with a series of opinions,
properly expressed, that explained in general terms typical
methods of drug dealers and the packaging of prescription drugs
and their value. Drawing his attention to the case at hand, he
was asked and agreed that he had read the police report for this
case, upon which he relied to form the basis of the opinions
17
about which the defendant takes primary issue. He was then
properly asked, hypothetically, if a person having in his
possession certain quantities of prescription drugs packaged
separately had significance to him, based on his training and
experience. Such a question was not improper. "Questions
grounded in previously admitted evidence may be posed to an
expert witness calling for an opinion within the expert's field
of expertise, even if the witness's reply thereby touches on the
ultimate issue of the case." Tanner, 45 Mass. App. Ct. at 579.
See Grissett, 66 Mass. App. Ct. at 457, quoting from
Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) ("[S]uch
testimony may be admitted only if it is 'limited to an opinion
that the hypothetical facts were consistent with possession of
[subject drugs] with the intent to distribute'").
Immediately following this question was a lengthy special
instruction, given to the jury in detail by the judge concerning
their use and consideration of opinion testimony that placed the
testimony in proper context.10 After this special instruction,
the prosecution resumed questioning Ledo, who then responded to
the earlier question posed by the prosecutor asking the witness,
10
Among instructions given to the jury at this point in the
trial, the judge told them that Ledo was going to "render an
opinion based upon facts in evidence" and that "you have to
determine whether those facts have been proven to begin with,
and, ah, if you find those facts have been proven, then you can,
accept, reject, or what, do whatever you want with the opinion."
18
in effect, to provide his opinion concerning when an individual
is arrested with certain baggies of the substances in question.
Ledo responded that, based on the report, "the drugs that were
found on the defendant were intended for distribution." There
was no motion to strike the answer as improper. While the
answer was not in the approved hypothetical and "consistent
with" form, and was improper in isolation, we view it as having
been built upon information already admitted in evidence. See
Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 182-183, 185-186
(2009) (court held that, while close, admission of officer's
testimony was not error when he replied to hypothetical question
that "it would lead me to believe that there may have been a
drug transaction," because he was a nonpercipient witness and
his response was based on evidence that had been admitted).
Therefore, "based on the compelling evidence properly admitted,
and the judge's limiting instructions, we conclude, with fair
assurance, that the jury's judgment was not substantially swayed
by the error." Commonwealth v. Canty, 466 Mass. 535, 545
(2013).
Even if we were to conclude that the opinion as expressed
would have, upon objection or motion, been struck in the form
given, we are satisfied that no substantial risk of a
miscarriage of justice resulted in this case.
Judgments affirmed.