MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury found the defendant guilty of distributing a class A drug based on an undercover sale of heroin. On appeal, he principally argues that his identity as the seller in that transaction rested on inadmissible hearsay. We affirm.
Background. On June 29, 2020, Trooper Paul Dunderdale was working undercover in Springfield. In that capacity, he arranged with an individual named Marcus Robledo to purchase a “bundle” of heroin for $60. Dunderdale went to an agreed-upon location where Robledo told Dunderdale to wait for him to obtain the heroin from a supplier across the street. From about twenty to twenty-five feet away, Dunderdale observed Robledo meet an individual who exited a house across the street. The individual was a Hispanic male with no shirt on and a full beard. Dunderdale observed the two men engage in a hand-to-hand exchange, and Robledo then brought the requested bundle of heroin to him. Dunderdale gave Robledo the $60, and Robledo started walking back to the shirtless man. At this point, Dunderdale gave a “done deal” signal to a support team that had been hiding out of sight. That team, including Trooper Jesse Gadarowski, then arrested Robledo and the defendant.
Both Dunderdale and Gadarowski testified at the defendants trial. Dunderdale explained the role that he played in the undercover operation and what he observed. Without objection, he explained that he had given the done deal signal to the supporting officers and that “[t]hey immediately went over to the two individuals [at the location], [Robledo] that I interacted with and the other individual that he made the exchange with.” Dunderdale then confirmed that he never lost sight of Robledo and “the shirtless individual” at any time “before supporting officers placed them under arrest.”
Gadarowski also explained the various roles that the different troopers were playing, including Dunderdales role in signaling that the undercover sale had been completed. After Gadarowski testified that “Dunderdale was using his transmitter to portray what was going on,” the defendant objected on the ground that this was hearsay. The prosecutor responded that the testimony was not being offered for the truth of the matter, and the judge overruled the objection. Gadarowski then testified -- as Dunderdale already had done -- that Dunderdale gave the support team the “go-ahead signal.” The prosecutor then asked Gadarowski “when you arrested the individuals, what confirmation did you have that you were arresting the correct people?” Gadarowski answered as follows: “The description of the two individuals had been given out during the transaction. And once they were secured, Trooper Dunderdale -- Dunderdale confirmed that the two people we had in custody were the correct individuals.” The defendant objected, but this again was overruled. Gadarowski then testified, without additional objection, that Dunderdale pointed out that the shirtless man was the one involved. Gadarowski also made an in-court identification of the defendant as the man he arrested at the scene.
Discussion. 1. Hearsay. On appeal, the defendant does not challenge Gadarowskis in-court identification of the defendant as the man he arrested. He argues, however, that the judge erred by allowing Gadarowskis testimony that Dunderdale had confirmed to the support team that the man they were arresting was the one involved in the observed drug transaction. Because Gadarowski himself had not observed the hand-to-hand exchange, the defendant argues that Gadarowskis testimony that Dunderdale had confirmed that the police were arresting the right person was critical to the Commonwealths case. The Commonwealth counters that the testimony in question was being offered solely for the non-hearsay purpose of explaining Gadarowskis actions. See Commonwealth v. Rosario, 430 Mass. 505, 508 (1999) (“investigating officer should not be put in the false position of seeming to have happened on the scene; he should be allowed some explanation of his presence and conduct”).
We agree with the defendant that allowing Gadarowskis testimony about what Dunderdale had confirmed to him was error. See Commonwealth v. Herndon, 475 Mass. 324, 332 (2016) (“as a matter of criminal procedure, the Commonwealth shall be required to question a putative identification witness concerning an alleged prior identification before it seeks to introduce substantive evidence of that identification through a third party”). With the jury already having heard testimony about the roles that the different troopers played at the scene and about how the defendant was arrested after Dunderdale had given the take down signal, there was no mystery that needed to be explained about why Gadarowski had moved in for the arrest. Moreover, especially when Gadarowskis testimony about Dunderdales out-of-court statements is viewed in context, the Commonwealth plainly was seeking to use this evidence for its truth.
1
That said, we conclude that the admission of the evidence, while error, did not constitute “prejudicial error.”
2
When Gadarowski testified about Dunderdales “confirmation” that they were arresting the men involved in the hand-to-hand exchange, Dunderdale himself already had testified that after he gave the done deal signal, he observed the support team in the process of arresting the two men involved in the hand-to-hand exchange. Thus, the improperly allowed testimony provided by Gadarowski was merely cumulative of properly admitted evidence. See Commonwealth v. Galicia, 447 Mass. 737, 747–748 (2006). We are confident that the jurys verdict would not have been different had the “confirmation” testimony been excluded, and we therefore conclude there was no prejudicial error.
3
See Commonwealth v. Crayton, 470 Mass. 228, 253 (2014) (no prejudicial error where no “reasonable possibility that the error[s] might have contributed to the jurys verdict” [citation omitted]).
2. Instructional error. The jury heard testimony from Dunderdale about out-of-court statements that Robledo had made to him. They were instructed that they could consider “any statements made by another alleged participant in a joint venture only if three things have been proved to you about the statement.” The judge instructed the jury about what those three things were but did not instruct them that they were supposed to apply a preponderance of the evidence standard when considering whether “those three things had been proved.”
4
See Commonwealth v. Steadman, 489 Mass. 372, 380 n.9 (2022). The defendant did not object to this omission at trial, but he now claims that absence of an instruction as to what standard of proof the jury should apply to the threshold issue of whether Robledos statements could be considered caused a substantial risk of a miscarriage of justice. It suffices to say that any error in the failure by the judge to explain that only a preponderance of the evidence standard applied to that issue, and not the ordinary proof beyond a reasonable doubt standard on which the jury were instructed they were to apply to the elements of the crime, inured to the benefit of the defendant.
5
See id. There was no substantial risk of a miscarriage of justice.
Judgment affirmed.
FOOTNOTES
1
. The parties have spent considerable effort addressing whether Dunderdale could have made an in-court identification of the defendant, with each side adopting a counterintuitive position with respect to that issue. We need not resolve that issue, which has no bearing on our decision.
2
. The Commonwealth points out that the defendant did not object anew when Gadarowski was asked a second time about what Dunderdale had said, and it argues that therefore any error in the admission of such testimony is reviewable only for a substantial risk of a miscarriage of justice. The defendant argues that his counsel was excused from making such an objection given that the judge had just overruled the hearsay objection he had lodged. We need not resolve this preservation issue, because we conclude that, in any event, there was no prejudicial error.
3
. The Commonwealth additionally argues that the defendants identity was not contested at trial, and it points out that testimony from the defendants witnesses supported that the defendant had engaged in a hand-to-hand exchange at the scene but contested that the item exchanged was the drugs. We need not reach the Commonwealths additional argument because we discern insufficient prejudice in any event.
4
. In fairness to the judge, we note that he followed the model jury instructions approved for use in the District Court. See Instruction 4.200 of the Criminal Model Jury Instructions for Use in the District Court (2011). As the parties before us agree, those model jury instructions are incomplete in this one respect.
5
. There are, of course, some standards of proof used in criminal law, such as probable cause, that are less demanding than a preponderance of the evidence. However, such standards played no role in the trial, and we have no reason to believe that the jury used them.