MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of possession of cocaine with intent to distribute. He raises the following arguments on appeal: the admission of implied hearsay evidence created a substantial risk of a miscarriage of justice; an expert witness improperly opined as to the defendants guilt; a percipient police witness should not have been allowed to testify as an expert; and trial counsel was ineffective for failing to file a motion to suppress. We affirm.
Background. The jury could have found the following facts. On January 19, 2018, Worcester Police Sergeant Jason Gaumond was conducting surveillance of a BP gas station known for drug deals. Gaumond saw a man, Anthony Williams, who he had “dealt with in the past for street-level narcotics.” Gaumond described Williams as a “street greeter” -- someone who finds potential buyers and introduces them to dealers.
Gaumond watched as Williams spoke with another man before they walked together from the gas station to a residence on Austin Street approximately 800 feet away. Gaumond was familiar with this residence and its tenant because the tenant had been “take[n] advantage of” in the past by people seeking “access to his house.” After approximately one minute inside, Williams and the other man left the residence and walked along the street in opposite directions.
Gaumond got out of his car and observed Williams as Williams eventually turned around and returned to the Austin Street residence.
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Williams knocked on the door, and Gaumond heard someone other than the tenant respond, “Who.” When the door opened, Gaumond and other officers followed Williams inside and encountered the defendant standing in the doorway with a “deer-in-headlight look.” The defendant immediately ducked behind the door and threw a white object, which landed on a picture frame. The object was later discovered to be a clear plastic bag with thirty-three smaller bags inside, each containing .20 grams of cocaine.
After placing the defendant under arrest, Gaumond found two cell phones on his person. One of the phones rang a number of times within a few minutes of the arrest. Gaumond answered twice and told both callers that he would meet them at the BP gas station.
Discussion. 1. Implied hearsay. The defendant argues that Gaumonds unobjected-to testimony that he told the callers to meet him at the gas station was inadmissible hearsay because it implied that the callers asserted they wanted to buy drugs. We disagree. “Express or implied, an assertion not offered for its truth is not hearsay.” Commonwealth v. Mendes, 463 Mass. 353, 368 n.10 (2012). Here, the Commonwealth did not offer any implied statements by the callers for their truth; rather, they came in “as evidence of the nature of the cellular telephone as an instrument used in cocaine distribution.” Commonwealth v. DePina, 75 Mass. App. Ct. 842, 850 (2009). “Repeated calls to a particular telephone number requesting to purchase drugs increase the likelihood that the telephone is being used to facilitate drug sales.” Mendes, supra at 368. Thus, as in Mendes, the callers’ “statements were admissible simply because they were made during calls to the defendant[’s] telephone[ ].” Id. See DePina, supra.
The defendant offers no meaningful distinction between the facts of this case and those of Mendes and DePina. To the extent the defendant argues that Mendes and DePina are distinguishable because in both of those cases the police were executing a warrant, the existence or nonexistence of a warrant is not relevant to whether the callers’ statements were hearsay. As to that issue, Mendes and DePina are directly controlling.
2. Expert testimony. Worcester Police Officer Michael Ryder testified at trial as the Commonwealths expert.
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The defendant challenges three portions of Ryders testimony, none objected to, as impermissibly opining on the defendants guilt. First, after showing Ryder the evidence bag of cocaine, the prosecutor asked, “[I]s it packaged consistent with a street amount of crack cocaine?” Ryder replied, “The amount here would be for distribution based upon the total amount.” Second, after establishing the street value of the thirty-three individual bags, the prosecutor asked, “And based on your training and experience what is that consistent with?” Ryder replied, “Someone thats selling drugs for -- its a package for distribution.” Finally, the prosecutor asked, “[I]f someone thats found with two cell phones and found with that amount of crack cocaine on them, based on your training and experience what is that consistent with?” Ryder replied, “That person would be selling. These drugs were intended to be sold on the street.”
“It is well established that ‘trial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases.’ ” Commonwealth v. Little, 453 Mass. 766, 768 (2009), quoting Commonwealth v. Miranda, 441 Mass. 783, 793 (2004). In determining whether an experts testimony crossed the line into improper commentary on guilt, the focus should be “ ‘on whether the evidence is explanatory’as opposed to ‘conclusory’ or ‘couched simply in terms of whether a defendant did or did not commit a particular offense’ ” (emphasis in original). Commonwealth v. Lowery, 487 Mass. 851, 871 (2021), quoting Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 581 (1998).
The judge here was within his discretion to admit the challenged testimony. Although Ryder did not use the preferred “consistent with” formulation, the testimony “did not stand alone but was based upon a series of opinions, properly expressed, that began with a question in proper form.” Commonwealth v. Madera, 76 Mass. App. Ct. 154, 163 (2010). At no point did Ryder opine that the defendant was distributing drugs, and, because he was not a percipient witness, there was no blurring of “the line between specific observations and expert generalizations.” Tanner, 45 Mass. App. Ct. at 579. See Commonwealth v. MacDonald, 459 Mass. 148, 163-164 (2011) (no error in admitting testimony of non-percipient expert witness who did not expressly state that defendant was involved in drug distribution). It was also proper for the prosecutor to ask questions that were based on previously admitted evidence. See Little, 453 Mass. at 769-701; Tanner, supra at 579. When viewed in context, the testimony was sufficiently explanatory and not so conclusory that the judge was required to sua sponte strike it from evidence. See Madera, supra at 163-164. Any risk that the jury would not independently assess the facts was mitigated by the judges instruction that it was fully within the jurys purview to accept or reject an experts testimony. See MacDonald, supra at 160-161.
3. Testimony as both expert and percipient witness. The defendant challenges three portions of Gaumonds testimony on the ground that it was improper for a percipient witness to also testify as an expert. To the extent the defendant is arguing that a percipient witness may never give expert testimony, he is mistaken. Although it is not best practice, “[a] percipient police witness may also testify as an expert witness” so long as the testimony is within the permissible bounds of expert evidence. Lowery, 487 Mass. at 871, quoting Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 306 (2000).
The defendants specific challenges also fail to demonstrate reversible error. The only objection that the defendant preserved was to Gaumonds testimony that “[the defendant] had two phones which is common with -- with dealers to have two phones.” The defendant contends that the judge should have excluded this testimony because it was an improper opinion on the defendants guilt. We disagree. Gaumond did not opine that the defendant was a drug dealer because he had two phones; rather, his testimony was explanatory, describing characteristics “common” to dealers.
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See Tanner, 45 Mass. App. Ct. at 579. Moreover, even assuming error, it was not prejudicial because the testimony was cumulative of Ryders unchallenged testimony that drug dealers often have a personal phone and a second “work phone,” used only “to make drug deals.” See Commonwealth v. Watt, 484 Mass. 742, 747 (2020).
Relatedly, the defendant appears to challenge Gaumonds testimony that “the phone that was ringing indicated further drug involvement” and “drug dealers only use one phone for activity and the one that was ringing was the one involved in drug activity.” Gaumond gave this testimony on cross-examination in response to questions from defense counsel about why the police did not seek a warrant to search the phone that was not ringing. Given the context, we do not think the jury would have viewed the testimony -- which the defendant elicited and did not move to strike -- as expressing an opinion of guilt. Also, the testimony was largely cumulative of Ryders testimony that it is common for dealers to have a designated “work phone,” and the prosecutor did not exploit the testimony in closing. Thus, any error did not result in a substantial risk of a miscarriage of justice. See Watt, 484 Mass. at 747; Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 259 (1999).
Finally, the defendant argues that Gaumond expressed a direct opinion of guilt when he testified, “Everything in this [police] report refers to [the defendant] as the drug dealer except for that one mis-type.” A reasonable juror would not have construed Gaumonds testimony in this way. On cross examination, defense counsel questioned Gaumond at length about a sentence in his police report identifying Williams, not the defendant, as the person who threw the bag of cocaine. Gaumond explained that he had made a typographical error and pointed out that “everythings accurate pertaining to [the defendant] except for that one word.” The challenged testimony was elicited on redirect examination and was plainly intended to clarify that Gaumond had misidentified Williams in his report.
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There was neither error nor a substantial risk of a miscarriage of justice.
4. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective for not moving to suppress the evidence obtained from Gaumonds answering of the defendants phone. A successful claim of ineffective assistance of counsel requires a showing that counsels performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and that the defendant was thereby deprived of a “substantial ground of defence” (quotation and citation omitted). Commonwealth v. Urena, 417 Mass. 692, 696 (1994). Although the Commonwealth concedes that trial counsels performance was substandard in light of our holding in Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 440 (2020), that “[a]nswering a ringing phone constitutes a search,” we do not accept that concession. See Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010). Neither party has addressed the fact that Barrett was issued after the defendants trial had concluded. Nor has either party addressed whether an ordinary fallible attorney would have predicted our ruling in Barrett based on the state of the law as it existed at the time of trial. See Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272 n.23 (2009) (“To meet the constitutional requirements of effectiveness, an attorney need not be clairvoyant as to ․ future shifts in the legal landscape ․”).
In any event, we need not resolve that question because the defendant has not met his burden of demonstrating prejudice. Even without Gaumonds testimony about the phone calls, the Commonwealth presented ample evidence of distribution. That evidence established the following: the BP gas station was a “mecca for street-level drug dealing”; a known street greeter brought another man from the gas station to the Austin Street residence, where they stayed for only a brief time; the defendant was found inside the residence with a package containing thirty-three individual bags of cocaine; the packaging and amount of the cocaine was consistent with distribution, not personal use; and, as is common with drug dealers, the defendant had two cell phones, one of which rang repeatedly. In light of this evidence, trial counsels failure to file a motion to suppress did not deprive the defendant of a substantial ground of defense. See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 440 (2016).
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Judgment affirmed.
FOOTNOTES
2
. Another officer stopped the second man but did not find any drugs on him.
3
. The transcript does not reflect that Ryder was specifically qualified as an expert, but at no point did the defendant object to Ryders testimony as beyond the area of his expertise. Nor does the defendant raise any such argument on appeal.
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. For similar reasons it was not improper for Gaumond to explain the term “street greeter,” to the extent the defendant argues otherwise.
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. Gaumond was responding to the following question from the prosecutor: “And its your testimony that the name of Williams in your report is merely a typo and its, in fact, this defendant that you saw throw the drugs that landed on top of the picture frame, correct?”
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. The defendant also asserts in a summary fashion that Gaumonds testimony about the phone calls was “highly damaging to the defenses argument that [the defendant] had been misidentified.” Even accepting this as adequate appellate argument, the defendant still fails to demonstrate prejudice. The defendants misidentification defense turned on the statement in Gaumonds police report that Williams was the one who threw the cocaine. Gaumond repeatedly testified that this was a typographical error, which he said was evident when looking at the report as a whole, and that he saw the defendant throw the cocaine. The evidence about the phone calls would have had little to no bearing on whether the jury believed Gaumonds testimony that he made a typographical error.