Commonwealth v. Grady
54 N.E.3d 22
Mass.2016Background
- Early morning stop (Feb 18, 2010) led to discovery in defendant's car of a plastic bag containing 12 individually tied small bags with white powder; Troopers testified packaging and appearance were consistent with street-level cocaine.
- Substance was analyzed at the State police lab by analyst Gina DeFranco; DeFranco had left the lab before trial.
- Commonwealth moved in limine to permit substitute analyst Kenneth Gagnon to testify based on his review of DeFranco's data; defendant moved to preclude Gagnon, arguing confrontation-rights violation. Judge allowed Gagnon to testify; defendant asked the judge to note his objection.
- At trial Gagnon testified as to his opinion that the substance was cocaine (permissible) but twice testified as to the weight (4.40 grams) — testimony both parties now concede was improper for a substitute analyst; defendant objected at those questions but did not move to strike.
- Defendant appealed, arguing the weight testimony violated his Sixth Amendment and art. 12 confrontation rights and claiming preserved objection from the motion in limine; Commonwealth argued the substitute analyst may give an independent opinion and that defendant failed to preserve objections to the specific improper testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pretrial motion in limine preserved objection to specific trial testimony so ordinary contemporaneous objection at trial was unnecessary | Pretrial motion should preserve appellate rights for same-evidence objections, regardless of ground | Grady: motion in limine preserved objection to Gagnon testifying and therefore preserved confrontation claim without further trial objection | Court: Abolishes distinction between constitutional and nonconstitutional motions in limine for preservation, but holds preservation only covers matters specifically raised pretrial; here defendant did not preserve objection to the specific weight testimony and thus had to object at trial |
| Standard of review for erroneously admitted testimony when objection not preserved | Commonwealth: review for substantial risk of miscarriage of justice | Grady: argued harmless beyond a reasonable doubt because motion in limine preserved objection | Held: Because defendant failed to preserve specific objection at trial, appellate review is for substantial risk of miscarriage of justice |
| Whether substitute analyst may testify to identity of substance based on review of original analyst's data (confrontation clause) | Commonwealth: substitute may give his own opinion based on underlying data; defendant received meaningful cross-examination so confrontation not violated | Grady: testimony violated confrontation right because original analyst did not testify | Held: Permissible — substitute may give independent opinion based on nontestifying analyst’s data; meaningful cross-examination satisfied confrontation concerns |
| Whether erroneous admission of weight testimony required reversal of possession-with-intent and school-zone convictions | Commonwealth: weight testimony was not necessary to prove intent; other evidence supported intent and weight is not element of possession-with-intent (contrast trafficking) | Grady: weight testimony was critical and its erroneous admission prejudiced jury | Held: No substantial risk of miscarriage of justice — evidence of packaging, expert testimony on street quantities/pricing, and lack of personal-use paraphernalia supported intent; weight not an element so conviction stands. Also declined to apply 2012 school-zone amendment retroactively (Thompson governs). |
Key Cases Cited
- Commonwealth v. Greineder, 464 Mass. 580 (establishes that substitute analyst may testify to own opinion based on nontestifying analyst's data)
- Commonwealth v. Tassone, 468 Mass. 391 (related treatment of expert/substitute testimony limits)
- Commonwealth v. Whelton, 428 Mass. 24 (prior rule requiring contemporaneous trial objection despite motion in limine)
- Commonwealth v. Santana, 465 Mass. 270 (treated motion in limine seeking suppression of statements as preserving constitutional objection)
- Commonwealth v. Barbosa, 457 Mass. 773 (expert may testify to own opinion, not to direct conclusions of nontestifying analyst on direct exam)
- Commonwealth v. Womack, 457 Mass. 268 (failure to move to strike improper testimony reviewed for substantial likelihood of miscarriage of justice)
- Commonwealth v. Azar, 435 Mass. 675 (standard and approach for reviewing unpreserved error for substantial risk of miscarriage of justice)
- Commonwealth v. LeFave, 430 Mass. 169 (same standard referenced)
- Commonwealth v. Montoya, 464 Mass. 566 (distinguishes trafficking cases where weight is an element and improper evidence of weight can be fatal)
- Commonwealth v. Bradley, 466 Mass. 551 (holding re: effective date application of 2012 amendment to school-zone statute)
- Commonwealth v. Thompson, 470 Mass. 1008 (held amendment not applied to convictions already entered before effective date)