Commonwealth v. Almele
27 N.E.3d 832
Mass. App. Ct.2015Background
- On Oct. 21, 2010, New Bedford narcotics officers arranged an undercover purchase after an anonymous tip; an intermediary, Ahmad, arranged to bring the buyer to his uncle (the defendant, Almele).
- Undercover officer Trinidad met Ahmad and drove to 480 Cottage St.; the defendant approached the car, shook the undercover officer’s hand, and was immediately arrested.
- Police found on the defendant: 20 Percocet tablets in a bag, 3 loose 30 mg Percocets, 30 Klonopin, 2 Suboxone tablets, and $416; an apparently full month’s prescription bottle for 180 thirty-mg Percocets in the house was empty.
- The Commonwealth sought to admit Ahmad’s out-of-court statements as those of a coventurer under Mass. G. Evid. § 801(d)(2)(E); the judge conducted a preliminary finding that independent evidence supported submission of the coventurer statements to the jury.
- Lt. Dennis Ledo, a non-percipient police expert, testified about typical street drug practices and opined (after a limiting instruction) that the drugs found on the defendant were intended for distribution and that the cash was drug proceeds.
- The defendant was convicted of possession of Class B and C controlled substances with intent to distribute and possession of a Class B substance; he appealed, challenging (1) admission of coventurer statements and sufficiency of evidence of joint venture, and (2) admission/extent of the expert’s opinion testimony.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Almele) | Held |
|---|---|---|---|
| Admissibility of coventurer (Ahmad) out-of-court statements | Judge can preliminarily admit coventurer statements if independent evidence (other than the statements) shows a joint venture and the statements were in furtherance | There was not sufficient independent evidence of a joint venture to admit Ahmad’s statements against Almele | Affirmed: judge properly found independent evidence to permit jury consideration; jury could independently find joint venture existed |
| Sufficiency of evidence for required finding (motion for acquittal) | Commonwealth contends evidence (taken in best light for Commonwealth) sufficed to submit to jury | Almele says evidence (excluding Ahmad’s statements) was insufficient to go to jury | Affirmed: sufficient evidence existed to submit the case to the jury when viewed in Commonwealth’s favor |
| Admission of narcotics expert testimony generally | Expert testimony about drug-dealing patterns, packaging, prices, and use of runners assists jury and is within judge’s discretion | Much of the testimony was within common knowledge or based on unreliable hearsay; expert improperly opined on ultimate issue (intent/guilt) | Affirmed: expert’s background and hypothetical-based testimony admissible; general opinions were permissible and helpful; limiting instruction mitigated risk |
| Expert’s specific statement opining the drugs were for distribution (and cash were proceeds) / preservation of objection | Commonwealth relied on expert’s opinion formed from investigative report and other admitted facts | Almele contends the expert invaded jury province by stating ultimate issue; asserts preserved objection by prior in limine reservation | Held: defendant failed to contemporaneously object to the specific answer (so claim not preserved); even if improper, no substantial risk of miscarriage of justice given evidence and limiting instructions |
Key Cases Cited
- Commonwealth v. Bright, 463 Mass. 421 (2012) (preliminary judicial finding required before admitting coventurer statements)
- Commonwealth v. Borans, 379 Mass. 117 (1979) (jury must independently determine existence of joint venture based on evidence other than coventurer statements)
- Commonwealth v. Latimore, 378 Mass. 671 (1979) (sufficiency standard viewed in light most favorable to Commonwealth)
- Commonwealth v. Miranda, 441 Mass. 783 (2004) (broad discretion to admit narcotics investigators as experts)
- Commonwealth v. Little, 453 Mass. 766 (2009) (expert testimony admissible when it assists jury and is not within common experience)
- Commonwealth v. Tanner, 45 Mass. App. Ct. 576 (1998) (hypothetical questions grounded in admitted evidence may elicit expert opinion that touches on ultimate issue if properly couched)
- Commonwealth v. Woods, 419 Mass. 366 (1995) (impermissible when witness opines directly on guilt/ultimate intent)
- Luce v. United States, 469 U.S. 38 (1984) (in limine rulings subject to change at trial; contemporaneous objections permit reconsideration)
- Commonwealth v. Canty, 466 Mass. 535 (2013) (harmless-error review when expert testimony arguably improper)
- Commonwealth v. Sepheus, 468 Mass. 160 (2014) (ineffectiveness/remedy where expert opinion was critical to proving intent)