This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After his first trial ended in a mistrial, the defendant was convicted by a jury in the West Roxbury Division of the Boston Municipal Court of possession of marijuana with intent to distribute, G. L. c. 94C, § 32C, and having done so within a public park, G. L. c. 94C, § 32J. On appeal he asserts insufficiency of the evidence, improper admission of opinion testimony, ineffective assistance of counsel, and violation of his right to confrontation under the Sixth Amendment. We affirm, referring to the facts that the jury could have found as they pertain to the issues.
Insufficiency of the evidence.
Basile was detained and handcuffed after he was observed by two police officers consuming alcohol in a public park. A search of his person revealed a plastic bag containing a green leafy substance and $1,900 in cash. A search of a backpack in his possession revealed nineteen small sandwich bags containing the residue of a green leafy substance inside a large freezer bag, a medium sized sandwich bag containing a green leafy substance, a half-used bag of small sandwich bags, and a digital scale covered with the residue of a green leafy substance. None of the green leafy substances or residues was tested by the Commonwealth; they were destroyed because the case mistakenly had been labeled as a civil matter.
We do not agree with the defendant that the destruction of evidence in this case required his acquittal. Officers O'Rourke and McClay, who arrested the defendant, had each conducted between one hundred and 150 marijuana-related arrests; Officer McClay, a nine-year veteran officer, had received drug training at the police academy and specialized certification as a drug recognition expert from the National Highway Safety Transportation Administration. The arresting officers testified to their ability to recognize marijuana based on its " very distinct smell," its very " distinct feel," and its " very . . . pungent, distinct smell."
The Commonwealth also presented testimony from a third officer, Robert England, who had been a member of the Boston police department for twenty-two years, a member of the drug control unit for twelve years, a recipient of specialized training from the Boston police department, the Drug Enforcement Administration, and the Federal Bureau of Investigation, and who had participated in approximately 4,000 drug-related arrests, one-third of which involved marijuana. Officer England testified without objection that possession of a large amount of money " is consistent with someone selling," and that the large freezer bag containing small sandwich bags " would be consistent with some sort of bagging or taking out of these bags of marijuana to pet it in other bags." He also stated that possession of the scale found in the backpack would be consistent with those used in " drug deals." This evidence satisfied the Commonwealth's burdens both to prove the substance seized from the defendant was marijuana and to prove that he possessed it with intent to distribute. Commonwealth v. MacDonald, 459 Mass. 148, 158, 945 N.E.2d 260 (2011). Commonwealth v. Keefner, 461 Mass. 507, 517, 961 N.E.2d 1083 (2012).
The defendant asserts that Officer England was not properly qualified as an expert and that defense counsel's failure to object to that testimony constituted ineffective assistance. We do not agree. Officer England's testimony was admitted pursuant to the proper exercise of discretion by the judge. Commonwealth v. Grissett, 66 Mass.App.Ct. 454, 457, 848 N.E.2d 441 (2006). " [T]he judge's allowance of the testimony implies a prior determination by him that the witness's experience qualified him" to testify as an expert. Commonwealth v. Cantres, 405 Mass. 238, 246, 540 N.E.2d 149 (1989). Officer England's extensive experience, background, and training, summarized supra, rendered him well qualified to testify as an expert. There was no error.
We are also unable to accept the defendant's characterization of Officer England's testimony as speculative or irrelevant. He addressed circumstances specifically grounded in the facts of the case and supported by other evidence, and did so in the light of his own experience. Similarly, the defendant's characterization of Officer England's testimony as " profil[ing]" is wide of the mark. The testimony in question referred to the potential significance of specific items (baggies) found on the defendant, and to other items (rolling papers and a lighter) that he was not carrying.
The defendant's claim of ineffective assistance founders on both prongs of the familiar test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). The opinion testimony was properly introduced, so that failure to object was neither measurably below what might be expected from an ordinary, fallible lawyer nor deprived the defendant of otherwise available substantial ground of defense.
Finally the defendant asserts that the judge deprived him of the ability to exercise his Sixth Amendment right to confrontation by limiting his cross-examination of Officer McClay. The record does not support this claim. After one objection to the form of a question (lack of foundation) concerning the possibility of confusing oregano with marijuana, defense counsel posed ...