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Commonwealth v. Grady

Supreme Judicial Court of Massachusetts, Middlesex

July 12, 2016

COMMONWEALTH
v.
JUSTIN GRADY.

          Heard Date March 7, 2016.

         Indictments found and returned in the Superior Court Department on May 6, 2010. The cases were tried before Elizabeth M. Fahey, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Michele R. Moretti for the defendant.

          KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          DUFFLY, J.

         A jury in the Superior Court convicted the defendant of operation of a motor vehicle while under the influence of liquor (QUI), in violation of G. L. c. 90, § 24 (1) (a.) (1); possession with intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A (cO; and possession with intent to distribute a class B substance in a school zone, in violation of G. L. c. 94C, § 32J. The Appeals Court affirmed the convictions in an unpublished memorandum and order pursuant to its rule 1:28, see Commonwealth v. Grady, 87 Mass.App.Ct. 1119 (2015), and we allowed the defendant's application for further appellate review.

         Prior to the start of the trial, the Commonwealth and the defendant each filed a motion in limine regarding whether a substitute analyst, Kenneth Gagnon, would be allowed to testify (the analyst who tested the substance at issue having left the testing laboratory and moved out of State). Concluding that Gagnon could testify, the trial judge allowed the Commonwealth's motion and denied the defendant's motion. In response to the defendant's request that the judge "please note [his] objection, " the judge responded "sure." Subsequently, at trial, Gagnon twice testified to the weight of the substance, which, the parties both now recognize, was improper. A substitute analyst may testify to his or her own opinion, but not, on direct examination, to the original analyst's test results. See Commonwealth v. Greineder, 464 Mass. 580, 586-587, cert, denied, 134 S.Ct. 166 (2013). See also Commonwealth v. Tassone, 468 Mass. 391, 399 (2014). The defendant, however, did not object to or move to strike the testimony.

         The question with which we are primarily concerned is what standard of review applies to the defendant's claim, on appeal to this court, that the erroneously admitted testimony violated his confrontation rights pursuant to the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.[1] If, as the defendant argues, he preserved his appellate rights at the motion in limine stage, we would review the error to determine whether it was harmless beyond a reasonable doubt; if not, we must instead determine whether the error created a substantial risk of a miscarriage of justice. For the reasons set forth below, we conclude that, in the circumstances presented here, the defendant did not properly preserve his rights, and that therefore we review the error to determine whether it created a substantial risk of a miscarriage of justice. Having done so, we conclude that there was no such risk. We also reconsider the distinction drawn in our case law between pretrial efforts to preclude evidence on constitutional grounds, through a motion in limine or motion to suppress, and pretrial efforts to preclude evidence on other grounds, and now do away with that distinction.

         1. Background.[2]

         In the early morning hours of February 18, 2010, State police Trooper Paul Conneely stopped the defendant's motor vehicle on Alewife Brook Parkway in Cambridge after he saw the defendant turn left at a red light and then proceed over a bridge while straddling the roadway's dashed center lane. Trooper Conneely subsequently arrested the defendant for OUI and arranged to have the defendant's motor vehicle towed to the State police barracks in the Brighton section of Boston. In the course of conducting an inventory search of the vehicle, Trooper Frank Parker found a plastic bag stowed in the molded compartment at the base of the driver's side door. After he found the bag, Trooper Parker brought it to Trooper Conneely, who then had the bag submitted to the State police crime laboratory (lab) for testing. The substance contained in the bag was analyzed by Gina DeFranco, an employee at the lab.

         Because DeFranco was no longer employed at the lab at the time of trial, the Commonwealth, through a motion in limine, sought to have Gagnon testify as a substitute analyst. The defendant also filed a motion in limine to preclude Gagnon from testifying. At the hearing on the motions, the defendant argued, essentially, that allowing Gagnon to testify in place of the analyst who actually tested the substance would "circumvent" his confrontation rights because he would have no opportunity, and had no previous opportunity, to cross-examine the nontestifying analyst. In response, the Commonwealth argued that Gagnon's testimony would not be a "regurgitation" of the nontestifying analyst's report; rather, he would testify to his own opinion, formed on the basis of his review of the underlying data (i.e., the nontestifying chemist's testing and analysis). On the basis that the type of testimony outlined by the Commonwealth is admissible, the judge allowed the Commonwealth's motion and denied the defendant's motion. After the judge issued her ruling, the defendant asked that she note his objection, to which she responded "sure."

         Subsequently, at trial, Gagnon described his role in the case, testifying that he initially performed, at the lab, what he referred to as a "technical review." Thereafter, he reviewed the nontestifying analyst's report -- he "made sure that it was in conformity with laboratory policies and made sure that, in [his] opinion at that time, . . . what was said in the report was in fact the results that were reported for the testing on the evidence." After Gagnon provided additional testimony detailing what is involved in a technical review, including that he spends a significant amount of his time reviewing drug cases, the Commonwealth asked him whether, based on his training and experience and his review of the underlying data in this case, he had been able to reach an opinion as to what the tested substance was. Gagnon replied "yes." When the Commonwealth then asked for his opinion, the defendant objected. The judge overruled the objection and Gagnon stated that it was his opinion "the 4.40 grams of powder was found to contain cocaine" (emphasis added). The defendant did not move to strike the testimony. ...


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