Com. v. Grissett

• Decision Date: 07 June 2006
• Docket Number: No. 05-P-301.,05-P-301.
• Citation: 66 Mass. App. Ct. 454,848 N.E.2d 441
• Parties: COMMONWEALTH v. Reginald GRISSETT.
• Court: Appeals Court of Massachusetts

848 N.E.2d 441

66 Mass. App. Ct. 454

COMMONWEALTH v. Reginald GRISSETT.

No. 05-P-301.

Appeals Court of Massachusetts. Plymouth.

Argued February 16, 2006.

Decided June 7, 2006.

Leslie Feldman-Rumpler, Boston, for the defendant.

Karen O'Sullivan, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, C.J., DREBEN & GRAHAM, JJ.

GRAHAM, J.

A District Court jury convicted the defendant, Reginald Grissett, of possession with intent to distribute cocaine, possession with intent to distribute marijuana, and criminal trespass.¹ On appeal, he contends that (1) the trial judge erred in allowing in evidence opinion testimony from a police officer as to his guilt; (2) his defense counsel,² whose direct examination "opened the door" for the prosecutor to impeach him by use of the defendant's prior conviction for distribution of cocaine, was ineffective; and (3) the trial judge erred in denying his motion for mistrial after a Commonwealth witness testified about a statement ordered suppressed by the judge prior to trial.

1. Background. During the late evening of October 22, 2001, Trooper Francis Walls and Sergeant Mark Kiley of the State police and Detective Mark Reardon of the Brockton police department were on patrol in an unmarked cruiser in a residential neighborhood of Brockton. They observed the defendant and another male in the driveway of a multi-family home. Trooper Walls exited the vehicle and approached the defendant, who was urinating near the side of the building.

After ascertaining that the defendant did not live at that location, Walls conducted a patfrisk of the defendant for weapons. While patting down the area around the defendant's right sock, Walls noticed a clear plastic bag on the ground between the defendant's feet. The plastic bag contained twenty-one smaller clear plastic bags, all of which held a white colored substance,³ later determined to be 2.125 grams of a mixture containing cocaine. The defendant was arrested and transported to the Brockton police station.

In the course of the booking procedure, the police found inside the defendant's pants waistband four small "zip-lock" type bags containing marijuana.⁴ The police also found seventy-three dollars in cash on the defendant, but no cellular telephone, pager, scales, or other items often associated with the drug distribution trade.

a. Trial testimony. At trial, the Commonwealth called as one of its witnesses Sergeant Kiley, who testified as an expert on street level drug distribution and as a percipient witness.⁵ On direct examination, Kiley testified as to particulars of the method of packaging cocaine for "street sale" in Brockton, and the most "common" amounts or weights of cocaine sold on Brockton streets, namely twenty and forty dollar packages.⁶

The prosecutor inquired of Kiley whether the amounts seized in the twenty-one smaller plastic bags of cocaine were "significant" to him in any way. Kiley stated, "it's far more than a user would carry on his person," at which point defense counsel objected. The judge permitted the questioning to continue. Thereafter, Kiley, in an expansive answer to a query why the quantity of cocaine seized was significant, stated, "It's clearly in my opinion for drug distribution." Kiley repeated this opinion on at least three subsequent occasions during the Commonwealth's direct examination with respect to the seized cocaine and marijuana.⁷ Finally, near the close of Kiley's direct examination, the prosecutor elicited an opinion from Kiley that was in proper form.⁸

b. Defendant's case. The defendant, a nineteen year old unemployed high school drop out, testified in his own defense. On direct examination, he denied that he ever possessed cocaine and claimed that he had purchased the four "dime bags" of marijuana for personal use just prior to his arrest. He further testified he had never purchased or used cocaine. Pursuing this line of inquiry, defense counsel asked the defendant, "Have you ever seen rock cocaine like that crack cocaine like that?" The defendant answered, "No, I haven't."

Prior to commencing her cross-examination of the defendant, the prosecutor sought and received permission from the judge to impeach the defendant with a prior conviction for possession with intent to distribute cocaine. After the defendant confirmed his prior conviction for possession with intent to distribute cocaine, his defense became unhinged.

2. Admission of expert opinion evidence. Admission of testimony of narcotics investigators as experts at trial is largely a matter of discretion for the trial judge. The judge's decision whether or not to admit expert testimony will be given deference absent an abuse of discretion or other error of law. Commonwealth v. Johnson, 413 Mass. 598, 604, 602 N.E.2d 555 (1992). See Commonwealth v. Wilson, 441 Mass. 390, 401, 805 N.E.2d 968 (2004).

"The role of an expert witness is to help jurors interpret evidence that lies outside of common experience." Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 581, 700 N.E.2d 282 (1998). An element of the Commonwealth's case in proving a charge of drug possession with intent to distribute is whether the subject drugs, connected to a given defendant, were for personal use or for distribution. This is not a matter within the common experience of jurors. Commonwealth v. Wilson, 441 Mass. at 401, 805 N.E.2d 968. However, such 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." Ibid. See Commonwealth v. Johnson, 410 Mass. 199, 202, 571 N.E.2d 623 (1991). Opinion evidence elicited from such 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). See Commonwealth v. Santiago, 41 Mass.App.Ct. 916, 917, 670 N.E.2d 199 (1996); Commonwealth v. Villanueva, 47 Mass.App.Ct. 905, 907, 711 N.E.2d 608 (1999).

Opinion testimony may "touch" on an ultimate issue in the case, see Commonwealth v. Cruz, 413 Mass. 686, 690, 602 N.E.2d 1089 (1992); Commonwealth v. Cyr, 425 Mass. 89, 96, 679 N.E.2d 550 (1997), if couched appropriately, but such testimony can never directly speak to, or express a point of view, on the issue of guilt or innocence. See Commonwealth v. Tanner, 45 Mass.App.Ct. at 579, 700 N.E.2d 282.

Thus, for example, an opinion by a qualified witness on the subject of drug possession with intent to distribute, which speaks to the point that specific conduct, or the presence of certain facts or circumstances, as grounded in the trial evidence, would be "consistent with" a drug transaction, has been deemed proper. Commonwealth v. Lopez, 55 Mass.App.Ct. 741, 746, 774 N.E.2d 667 (2002). Expert testimony must be explanatory, and not "presented in conclusory form ... in terms of whether [the] defendant did or did not commit a particular offense," to avoid infringing on the defendant's right to a fair trial. Commonwealth v. Tanner, 45 Mass.App.Ct. at 581, 700 N.E.2d 282. See Commonwealth v. Andujar, 57 Mass.App.Ct. 529, 531, 784 N.E.2d 646 (2003). See also Liacos, Brodin & Avery, Massachusetts Evidence § 7.3.3, at 131 (7th ed. Supp.2005) ("Given the apparent confusion created by these cases, and the continued elicitation of such testimony by prosecutors, it may be time for the appellate courts to resolve this problem with a clear statement that the `consistent with' language is unacceptable as an opinion on the defendant's guilt"). "Such testimony amounts to little more than vouching for the Commonwealth's position." Commonwealth v. Tanner, 45 Mass.App.Ct. at 581, 700 N.E.2d 282.⁹

A trial judge has discretion in handling a situation where improper expert testimony has been offered. See Commonwealth v. Delgado, 51 Mass.App.Ct. 661, 664, 747 N.E.2d 1265 (2001) (judge promptly acted so as to transform answer into a proper statement of opinion). Here, the judge did nothing to correct the improper opinion testimony, but merely instructed the jurors in his charge that it was their role to assess the credibility of any witness.

In the end, testimony of the Commonwealth's expert witness (Sergeant Kiley) was laced with improper opinions that could be understood by the jury as a direct comment as to guilt.¹⁰ Measured by an abuse of discretion standard, see Commonwealth v. Johnson, 410 Mass. at 202, 571 N.E.2d 623, admission of the challenged opinion evidence improperly intruded on the jury's fact-finding role. See Commonwealth v. Woods, 419 Mass. 366, 375-376, 645 N.E.2d 1153 (1995). Moreover, the improper testimony appears to have been inextricably related to the defendant's decision to testify, which we now address.

3. Ineffective assistance of counsel.¹¹ Measured by the Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), test, the defendant has met his burden to show, on the record, that his counsel's trial performance was seriously marred by lack of proper preparation. It was a grave error for counsel to call the defendant to testify, and then pose questions on direct examination which left his client vulnerable to a predictably devastating cross-examination.

"The right to testify on one's own behalf in a criminal case is fundamental." Commonwealth v. Degro, 432 Mass. 319, 335, 733 N.E.2d 1024 (2000). That right, however, is acknowledged to be counterpoised by the defendant's fundamental right not to testify, see Commonwealth v. Waters, 399 Mass. 708, 716, 506 N.E.2d 859 (1987); Commonwealth v. Medina, 64 Mass.App.Ct. 708, 723, 835 N.E.2d 300 (2005), and a decision whether to testify has been...