26 N.E.3d 1134
Mass. App. Ct.2015Background
- Everett police conducted an undercover purchase of crack cocaine from a middleman known as "Paulie," suspected to be linked to Emmanuel DeJesus. Officers photocopied six $20 bills before the operation; five photocopied bills were given to the undercover officer for the buy.
- The undercover officer gave Paulie five bills; Paulie left and returned with multiple baggies of crack; Paulie was arrested after handing over four baggies to the officer.
- Sergeant Strong, who had kept a photocopy of the bills, observed DeJesus drive near the buy area and later was present when DeJesus was stopped and arrested; five $20 bills in DeJesus’s pocket had serial numbers matching the photocopy.
- During booking, officers found 22 additional packets of cocaine in DeJesus’s pants; Strong had placed check marks on the photocopy after comparing it to the bills recovered from DeJesus.
- The department’s practice was to reuse currency in undercover operations and retain only photocopies; the actual bills used in this operation were not available at trial, so the Commonwealth introduced the photocopy and Strong’s check marks.
- DeJesus was convicted of possession with intent to distribute, distribution, and a school-zone drug violation; he appealed, challenging (1) admissibility of the photocopy under the best evidence rule and hearsay, (2) an improper hypothetical opinion by a detective, and (3) a possible school-zone entrapment instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Best evidence rule / admissibility of photocopy of currency | Photocopy admissible because original currency was unavailable through no fault and rule applies to writings only | Best evidence required original currency; photocopy insufficient to prove bills were those used in transaction | Photocopy admissible; best evidence rule did not apply because contents of a writing were not at issue, and secondary evidence allowed when original unavailable |
| Check marks on photocopy as hearsay | Check marks were corroborated by Strong’s testimony and added little; no substantial risk of miscarriage | Check marks were nonverbal assertions (hearsay) and inadmissible | Check marks were hearsay but defendant objected too late; admission harmless because Strong’s testimony established the match |
| Detective Norton’s hypothetical opinion | Hypothetical about common drug practices was proper expert-style testimony to explain typical middleman/dealer patterns | Opinion impermissibly commented on guilt by implying DeJesus acted as the dealer | Question that transmuted into a specific inference about actual actors should not have been allowed, but error was harmless given the obvious factual inference and sufficiency of other evidence |
| School-zone entrapment instruction | (Commonwealth) No instruction necessary; record does not show police selected the school-zone meeting point | Defendant argued police induced meeting at school zone, entitling him to entrapment instruction | Issue not preserved / record inadequate to show police chose location; instruction not required and may have conflicted with defense theory |
Key Cases Cited
- Commonwealth v. Ocasio, 434 Mass. 1 (discusses best evidence rule and preference for originals)
- Commonwealth v. Balukonis, 357 Mass. 721 (photographic/photocopy evidence not governed by best evidence rule where object is not a writing)
- Commonwealth v. Weichell, 390 Mass. 62 (best evidence rule not applicable to photographs)
- Commonwealth v. Gonzalez, 443 Mass. 799 (nonverbal conduct can constitute hearsay when intended as an assertion)
- Commonwealth v. Keevan, 400 Mass. 557 (standard for reviewing admission of hearsay without timely objection — risk of miscarriage of justice)
- Commonwealth v. Sepheus, 468 Mass. 160 (sufficiency of evidence reviewed on admitted evidence alone)
- Commonwealth v. Tanner, 45 Mass. App. Ct. 576 (limits on police-opinion/hypothetical testimony about guilt)
- Commonwealth v. Woods, 419 Mass. 366 (police testimony must not invade jury’s province by commenting on guilt)
- Buker v. Melanson, 8 Mass. App. Ct. 325 (secondary evidence admissible when original unavailable through no serious fault)
- Commonwealth v. Dancy, 75 Mass. App. Ct. 175 (harmless-error review where police opinion testimony arguably improper)
- Commonwealth v. Lawrence, 69 Mass. App. Ct. 596 (entrapment in school-zone context)