Commonwealth v. Elana Gordon

SUPREME JUDICIAL COURT

COMMONWEALTH vs. ELANA GORDON

Docket:

SJC-13735

Dates:

April 11, 2025 - September 17, 2025

Present:

Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.

County:

Plymouth

Keywords:

Controlled Substances. Constitutional Law, Confrontation of witnesses, Harmless error, Retroactivity of judicial holding. Practice, Criminal, Confrontation of witnesses, Witness, Hearsay, Harmless error, Retroactivity of judicial holding. Evidence, Expert opinion, Hearsay, Scientific test. Witness, Expert. Error, Harmless.

Indictment found and returned in the

Superior Court Department on May 30, 2018.

The case was tried before Thomas F.

McGuire, Jr., J.

The Supreme Judicial Court on its own

initiative transferred the case from the Appeals Court.

Christopher DeMayo for the defendant.

Arne Hantson, Assistant District Attorney,

for the Commonwealth.

M. Chris Fabricant, of New York, Radha

Natarajan, & Stephanie Roberts Hartung, for New England Innocence

Project &

another, amici curiae, submitted a brief.

R. Michael Cassidy, Benjamin K. Golden,

& Elizabeth N. Mulvey, pro se, amici curiae, submitted a brief.

WENDLANDT, J. In this case, we return to the intersection

of the accused's constitutional right to confront witnesses against her and the

prosecution's use of a substitute expert to present an ostensibly independent

opinion identifying a controlled substance; the original analyst, who alone

performed the testing, was no longer employed by the State police crime

laboratory (crime lab) at the time of trial.

We are guided at this familiar post by the United States Supreme Court's

most recent decision regarding the accused's right of confrontation, Smith v.

Arizona, 602 U.S. 779 (2024).

In the present case, the defendant, Elana

Gordon, was alleged to have passed Suboxone[1] to an inmate in a house of

correction in violation of G. L. c. 268, § 28, using her position as a lawyer

to feign that the sixty-one strips containing the controlled substance were

merely legal papers relating to the inmate's case. As in Smith, a substitute expert gave an opinion

identifying the controlled substance.

The substitute expert performed the technical and administrative reviews

of the original analyst's work, but as in Smith, the substitute expert neither

participated in nor observed the chemical testing performed by the

analyst. As in Smith, the substitute

expert testified to the contents of the analyst's notes. As in Smith, the analyst's out-of-court

statements provided support for the substitute expert's opinion only if the

analyst's statements were true. And, as

in Smith, the substitute expert's opinion identifying the controlled substance

was not independent of the analyst's statements; in short, the proffered

opinion identifying the controlled substance, which the Commonwealth concedes

depended on the analyst's notes, "merely replicate[d], rather than somehow

buil[t] on, the testing analyst's conclusions." Smith, 602 U.S. at 798-799 .

Applying Smith, we conclude that the

original analyst's statements set forth in her notes were out-of-court

statements admitted for their truth.

Further concluding that the absent analyst's statements were testimonial

and that the admission of those statements, as well as the substitute expert's

opinion founded on the truth of the absent analyst's statements, was not

harmless beyond a reasonable doubt, we vacate the defendant's conviction.[2]

1.

Background.[3] a. Facts.

As relevant to our analysis, in 2018 the defendant delivered two

envelopes containing sixty-one orange strips of an unidentified substance to an

inmate at the Plymouth County house of correction. The exchange occurred the day following two

jail telephone calls with a first inmate, who instructed the defendant to

transmit the "paperwork" to a second inmate who would then pass it to

the first inmate. Commonwealth v.

Gordon, 103 Mass. App. Ct. 1112 (2023) (unpublished), vacated and remanded, 145

S. Ct. 412 (2024). The envelopes were

confiscated by officers who, based on training and experience, suspected the

orange strips were Suboxone.[4]

The strips were transported to the crime

lab, where one of the strips was tested by forensic analyst Kimberly

Dunlap. Dunlap concluded that the strip

contained a mixture of buprenorphine and naloxone, commonly referred to as

Suboxone. In her written, initialed

notes marked by the crime lab identification number, Dunlap recorded the

procedures she said she undertook to reach her conclusion, including, inter

alia, her receipt of the strips from the Plymouth County sheriff's department,

the procedures she employed to perform an initial screening test, the protocols

she followed to prepare the strip for further analysis, her use of gas

chromatography-mass spectrometry (GC-MS)[5] for a confirmatory test, and her

conclusion based on the foregoing that the strip contained Suboxone. Also in the case file were a printout from

the database Dunlap said she used during the screening test and the GC-MS

output from the confirmatory test Dunlap said she performed.

Carrie LaBelle, a supervisor at the crime

lab, reviewed the case file pursuant to the crime lab's technical and

administrative review procedures.

LaBelle, who was familiar with the protocols and procedures of the crime

lab, was not involved in the testing performed by Dunlap; she neither observed

nor participated in Dunlap's testing.

The prosecution had intended to call

Dunlap to testify that the sixty-one strips contained Suboxone. However, just prior to jury empanelment, the

prosecution notified the trial judge that it intended to call LaBelle as a "substitute

chemist" to identify the substance because Dunlap was "no longer with

the lab."[6]

At trial, LaBelle testified that she was

"responsible for performing technical and administrative reviews" of

her peers' work. She explained that

technical review means that "we will go through the case file, we'll

review all of their submitted data, we'll review their notes, and we make sure

that the notes and the conclusions that they've drawn from them are supported

scientifically," and that "[t]he administrative review portion is

looking for administrative aspects such as having a laboratory number on every

page and having the analyst's initials on every page." LaBelle stated that she performed the

technical and administrative reviews of Dunlap's work on the defendant's case.

LaBelle acknowledged that she had not

herself performed or observed the testing on any of the seized strips.[7] Instead, LaBelle testified that Dunlap

"analyzed the specific substances."

LaBelle, who prior to her role as a

supervisor had been an analyst, then described the tests typically performed by

analysts at the crime lab:

"The first

thing we do is we take a weight of [the item] before any analysis begins. Each item that is tested should have a weight

recorded for it. There should be a screening

test and a confirmatory test performed.

And then each of those tests individually should have specific data,

which the analyst will record in their notes.

So, they'll have the volume that they took, how much solution that they

put in the sample. They'll put the type

of solution that they put the sample in, and then they'll write down their

results for each of those tests and then their final conclusion."

An analyst's

typical first step, LaBelle testified, would be a "pharmaceutical

preparation," in which "[w]e first look for any identifiable markings

on the item itself" and conduct "a pharmaceutical identifier search,

and that's essentially just using an online database."

Then, LaBelle described the

"confirmatory test, which is where we actually will take a portion of the

sample, we'll analyze it chemically on a[n] instrument. There's a couple different ones we use . . .

." LaBelle also explained the

functioning of the GC-MS, stating the "particular instrument will separate

out all the different components of a mixture, and the mass spectrometer will

identify what those components are as they come off the instrument."

LaBelle then pivoted from describing the

typical tasks performed by analysts to explaining Dunlap's process "for

this particular case." As discussed

in more detail infra, LaBelle proceeded to relay the contents of Dunlap's

notes, testifying as to the steps Dunlap recorded having performed for an

initial screening test and for a confirmatory test using the GC-MS. LaBelle also testified that she herself

observed the pharmaceutical identification markings on the strips, and reviewed

a printout from a database that Dunlap's notes indicated Dunlap used for the

initial screening, as well as the GC-MS output, both of which were in the case

file alongside Dunlap's notes.

LaBelle stated that she reviewed

"the same data results that the person who did the initial analysis

saw," and that those results allowed her "to make a determination, to

a scientific degree of certainty" as to the identification of the analyzed

substance. She opined that, "in

reviewing the data printouts independently, as another forensic scientist, the

data support[] a conclusion of buprenorphine and naloxone," which LaBelle

confirmed was commonly known as Suboxone.

On cross-examination, LaBelle

acknowledged she reviewed Dunlap's "data" to confirm they satisfied

"the procedures and protocols" of the crime lab. LaBelle testified that, while she was

"reviewing the data currently and saying that the data support[] a

conclusion of the results," she was "relying on a test performed by

another person."

On redirect, LaBelle testified that

"if any discrepancies are noticed during the technical or administrative

review[s]" a "fresh sample" would be tested, but that there were

no "discrepancies between the initial analysis and [LaBelle's] technical

and administrative review[s]" warranting a second test. Asked expressly whether her opinion was based

on her "own review of the raw data," LaBelle reiterated only that she

was "reviewing the actual case file" and "giving an independent

conclusion based on that information."

Trial counsel moved to strike LaBelle's

testimony, arguing that "[a]ll she's doing is reviewing data, testifying

to conclusions that were arrived at by a person who is not here and not

available for cross-examination," and as such violated the defendant's

right to confrontation. The trial judge

denied the motion to strike but noted the defendant's "rights are saved on

that issue."

b.

Prior proceedings. In October

2021, the jury found the defendant guilty of unlawfully delivering a class B

controlled substance to a prisoner in violation of G. L. c. 268, § 28.[8] The defendant was sentenced to six months in

a house of correction. The defendant

timely appealed.

The Appeals Court affirmed the

defendant's conviction. Pertinently, the

Appeals Court rejected the defendant's confrontation clause challenge to

LaBelle's testimony, reasoning that LaBelle's opinion was independent based on

her review of the case file.[9] See

Gordon, 103 Mass. App. Ct. 1112 . The

United States Supreme Court subsequently issued its decision in Smith, 602 U.S.

779 ; in October 2024, the Supreme Court granted the defendant's petition for

certiorari, vacated the Appeals Court's judgment, and remanded the case to the

Appeals Court for reconsideration in light of Smith. We transferred the case to this court on our

own motion.

2.

Discussion. a. Standard of review. "We review the defendant's constitutional

challenge de novo." Commonwealth v.

Shepherd, 493 Mass. 512 , 524 (2024).

b.

Confrontation clause prohibition.

The right of a defendant in a criminal trial to be confronted with the

witnesses against him or her, which is enshrined in the Sixth Amendment to the

United States Constitution,[10] limits the prosecution's ability to introduce

statements made by persons not in the court room.[11] Smith, 602 U.S. at 783-784 . The right, however, does not extend to all

out-of-court statements; to fall within its ambit, the out-of-court statement

(i) must be admitted to prove the truth of the matter asserted (that is, the

statement must be hearsay), and (ii) must be testimonial. See Davis v. Washington, 547 U.S. 813, 823

(2006) (confrontation right "applies only to testimonial

hearsay").

For a time, the Supreme Court concluded

that the confrontation right was satisfied so long as the testimonial hearsay

bore "adequate 'indicia of reliability.'" Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). More than two decades ago, however, the

Supreme Court changed course to reflect the Court's interpretation of the

original understanding of the confrontation clause. See Crawford v. Washington, 541 U.S. 36,

43-50 (2004) (reviewing historical origins of confrontation clause).

In Crawford, the Supreme Court explained

that admission of a testimonial out-of-court statement to prove the truth of

the matter asserted based on a judicial determination of reliability is

"fundamentally at odds with the right of confrontation." Crawford, 541 U.S. at 61 . The confrontation right, the Supreme Court

concluded, "commands . . . not that evidence be reliable, but that

reliability be assessed in a particular manner:

by testing in the crucible of cross-examination."[12] Id.

"Dispensing with confrontation because testimony is obviously

reliable," the Supreme Court stated, "is akin to dispensing with jury

trial because a defendant is obviously guilty.

This is not what the Sixth Amendment prescribes." Id. at 62 .

Accordingly, the Supreme Court determined that the confrontation clause

"bars the admission at trial of 'testimonial statements' of an absent

witness unless she is unavailable to testify, and the defendant has had a prior

opportunity to cross-examine her" (quotation, citation, and alteration

omitted). Smith, 602 U.S. at 783 . See Crawford, supra at 59, 62 .

Relevant to the present circumstances, the

prohibition against testimonial hearsay applies "in full to forensic

evidence." Smith, 602 U.S. at

783 . Thus, in Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 308-312 (2009), the Supreme Court concluded that

the clause prohibited the introduction of forensic certificates setting forth

analysts' determinations that a tested substance was cocaine; the prosecution

had relied on the certificates in lieu of the analysts' testimony at trial.

The Supreme Court rejected the

Commonwealth's argument that the "neutral scientific" nature of the

testing results recorded in the certificates satisfied the confrontation clause

and again emphasized that reliability did not govern the confrontation clause's

application; even "if all analysts always possessed the scientific acumen

of Mme. Curie and the veracity of Mother Theresa," the Supreme Court

"would reach the same conclusion."[13] Id. at 318 , 319 n.6. Concluding that the defendant had the right

to cross-examine the analysts who had signed the certificates, the Supreme

Court underscored that the confrontation clause "commanded not reliability

but one way of testing it -- through cross-examination." Smith, 602 U.S. at 785 , citing Melendez-Diaz,

supra at 317 .

The Supreme Court next addressed whether

the prosecution, consistent with the confrontation clause, can introduce a

forensic analyst's laboratory report as to a defendant's blood alcohol content

through the testimony of a surrogate expert who did not observe or perform the

tests conducted by the analyst but who worked in the same laboratory and was

familiar with the laboratory's procedures.

See Bullcoming v. New Mexico, 564 U.S. 647, 651-652 (2011). The Supreme Court determined that the

surrogate expert's testimony violated the confrontation clause. Id. at 661-662 .

Even a qualified surrogate, the Supreme

Court reasoned, "could not convey what [the certifying analyst] knew or

observed about the events his certification concerned, i.e., the particular

test and testing process he employed"; cross-examination of a surrogate

could not "expose any lapses or lies on the certifying analyst's part." Id. at 661-662 . Whether the prosecution introduced a

certificate of the results of forensic analysis in the form of a physical

document as in Melendez-Diaz or conveyed that same content through the

surrogate's testimony, the authoring analyst, the Supreme Court confirmed,

"became a witness [the defendant] had the right to confront."[14] Bullcoming, supra at 663 . Notably, the State did not assert that the

surrogate expert offered an "independent opinion." Id. at 662 .

See also id. at 673 (Sotomayor, J., concurring in part) (noting

"this is not a case in which an expert witness was asked for his

independent opinion about underlying testimonial reports that were not

themselves admitted into evidence").

The Supreme Court addressed that scenario

in Williams v. Illinois, 567 U.S. 50 (2012).

There, the absent analyst had created a deoxyribonucleic acid (DNA)

profile ostensibly based on a swab taken from the victim; thereafter, a State

expert, who did not work at the absent analyst's laboratory and had no

knowledge of that laboratory's operations, used the analyst's report containing

the DNA profile to search a State database that included the defendant's DNA

profile. Id. at 59-61 . At trial, the State expert testified to her

"independent" opinion that there was a match between the defendant's

DNA profile in the State database and the "DNA profile found in semen from

the vaginal swabs of [the victim]," impliedly asserting that the DNA

profile created by the absent analyst was the profile from the victim's swab

and that it was obtained using sound scientific principles and procedures.[15] Id. at 64, 71-72 . The State expert testified that it was a

"commonly accepted" practice in the field for one DNA expert to rely

on the records of another DNA expert, and that the absent analyst's laboratory

was accredited. Id. at 60 . However, she acknowledged that she had no

firsthand knowledge of how the absent analyst had produced the DNA profile or

even whether the profile had in fact come from the swab taken from the

victim. Id. at 61-62 .

In a "fractured" decision, five

of the justices in Williams concluded that the State expert's opinion did not

violate the confrontation clause because the absent analyst's report either was

not hearsay or was not testimonial.

Smith, 602 U.S. at 779 , 788 & n.1.

Four of these justices determined that because the State expert's

testimony regarding the absent analyst's DNA profile merely provided the basis

for the State expert's opinion, it was admitted to allow the jury to assess the

validity of the opinion and not for the truth of the absent analyst's

out-of-court statements. Williams, 567

U.S. at 58 .[16] Writing for the four

dissenting justices, Justice Kagan (who would go on to author the Supreme

Court's Smith decision) concluded that when "the State elected to

introduce the substance of [the absent analyst's] report into evidence, the

analyst who generated that report became a witness whom [the defendant] had the

right to confront" (quotations and citation omitted). Id. at 124-125 (Kagan, J., dissenting). The dissent summarized, "the

[c]onfrontation [c]lause prevented the State from introducing that report into

evidence except by calling to the stand the person who prepared it. So the State tried another route --

introducing the substance of the report as part and parcel of an expert

witness's conclusion" (citation omitted).

Id. at 128 .

The Supreme Court most recently revisited

its confrontation clause jurisprudence in Smith, rejecting the rationale of the

plurality in Williams that statements of an absent analyst were offered solely

for the jury to assess the soundness of the testifying expert's opinion. Smith, 602 U.S. at 800 . In Smith, a substitute expert, who worked in

the same laboratory as the original analyst but was not involved in the

defendant's case, offered an "independent" opinion as to the identity

of a controlled substance. Id. at 783,

791 . The substitute expert based his opinion

on his review of (i) the analyst's notes, which recorded the analyst's

statements about the scientific methodology and the laboratory's policies and

practices she said she followed, as well as the tests she said she performed;

(ii) the raw data results from the tests she said she conducted on testing

equipment she said she used; and (iii) the analyst's report, which more

formally set forth the analyst's opinion as to the substance's identity. Id. at 790 .

The State, however, did not call the original analyst to testify. Id.

In support of his testimony, the

substitute expert conveyed the analyst's statements. "The State offered up that evidence so

the jury would believe it -- in other words, for its truth." Id. at 800 .

The Supreme Court concluded, "When an expert conveys an absent

analyst's statements in support of his opinion, and the statements provide that

support only if true, then the statements come into evidence for their

truth." Id. at 783 . If the statements were testimonial, an issue

the Supreme Court did not reach, then the introduction of the absent analyst's

statements violated the defendant's confrontation right. Id. at 800-802 .

Significantly, the Supreme Court also

rejected the State's argument that the substitute expert's opinion presented no

confrontation clause problem because he was providing his own "independent"

opinion based on his review of the absent analyst's work -- that is, the

Supreme Court addressed the issue left open in Bullcoming and unresolved in

Williams. Smith, 602 U.S. at 798-799 . As discussed infra, the Supreme Court

determined that the confrontation clause prohibits a substitute expert from

offering an ostensibly independent opinion that depends on the truth of the

absent analyst's testimonial hearsay; in other words, the Supreme Court

rejected the argument that cross-examination of the substitute expert satisfied

the confrontation clause. Id.

c.

LaBelle's testimony. To determine

whether the defendant's right to confrontation was infringed, we carefully

examine each aspect of LaBelle's testimony:

(i) the crime lab's procedures and protocols; (ii) the content of

Dunlap's notes; and (iii) LaBelle's independent opinion based on her review of

the case file. See Smith, 602 U.S. at

800-801 , quoting Michigan v. Bryant, 562 U.S. 344, 369 (2011) ("A court

must . . . identify the out-of-court statement introduced, and must determine,

given all the 'relevant circumstances,' the principal reason it was

made").

i.

General background and protocols.

To begin, LaBelle testified regarding the steps typically taken by

analysts to conduct an initial screening test and a confirmatory test, her

familiarity with the protocols in using GC-MS, and her role in connection with

technical and administrative reviews generally and in connection with Dunlap's

work in this case specifically. This

testimony was based on LaBelle's personal knowledge and was not hearsay because

LaBelle was available to be cross-examined on these matters at trial. See Smith, 602 U.S. at 799 (expert's

testimony regarding "how that lab typically functioned -- the standards,

practices, and procedures it used to test seized substances" -- was based

on personal knowledge and did not implicate confrontation clause).

ii.

Dunlap's notes. Next, LaBelle

relayed Dunlap's statements recorded in her notes. LaBelle first relayed the content of Dunlap's

notes regarding the screening test, testifying:

"So, the

first test that the analyst performed was a pharmaceutical ID. So, what they did was, they input -- they

recorded in their notes what the imprint was that they observed on the actual

item of evidence. They input that into

their choice of a database. I believe

they used drugs.com, but I can double-check on that. It gave back a preliminary identification of

buprenorphine and naloxone, and then that printout is retained in the case

record."

LaBelle's testimony regarding the

confirmatory test done by Dunlap using the GC-MS was much the same. Based on Dunlap's preliminary identification

of buprenorphine and naloxone, LaBelle continued, "the analyst chose to do

the GC-MS instrument." LaBelle

stated:

"They took a

portion of one of the films, they recorded it into a solvent, I believe it was

methanol is what we commonly use, and then the instrument will print out data

after it goes -- runs through the instrument, and then that data we retain in

the case and is reviewable."

A.

Dunlap's notes were hearsay.

Dunlap's notes purported to document the scientific methodologies Dunlap

employed, the practices and procedures Dunlap followed, the tests Dunlap

performed, and the results Dunlap obtained.

With regard to the screening test, LaBelle had no personal knowledge

whether Dunlap input the pharmaceutical identification, assuming it was

accurately recorded from the strip Dunlap tested, into the database or another

input, or whether the result contained in the file was the result from the

database or a result from a different input.

Similarly, regarding the confirmatory test, LaBelle did not actually

perform or observe Dunlap perform the procedures to prepare the tested sample

prior to its insertion into the GC-MS machine, Dunlap's use of the GC-MS

machine, or any other aspects of how Dunlap conducted the confirmatory

test. LaBelle could not speak to the

truth of these steps that Dunlap reported in her notes and which LaBelle

conveyed to the jury. See Smith, 602

U.S. at 796 (recognizing that substitute analyst, "though familiar with

the lab's general practices, had no personal knowledge about [the original

analyst's] testing of the seized items").

Yet LaBelle's opinion as to the identity

of the controlled substance depended on the truth of these statements. "If believed true, [Dunlap's statements]

will lead the jury to credit [LaBelle's] opinion; if believed false, it will do

the opposite. But that very fact is what

raises the [c]onfrontation [c]lause problem.

For the defendant ha[d] no opportunity to challenge the veracity of the

out-of-court assertions that are doing much of the work" (citations

omitted). Smith, 602 U.S. at 796 . The statements from Dunlap's notes that

LaBelle relayed to the jury were therefore hearsay.

B.

Dunlap's notes were testimonial.

Because the confrontation clause is only concerned with testimonial

hearsay, we next must determine whether the out-of-court statements in Dunlap's

notes, which LaBelle relayed to the jury, were testimonial. Smith, 602 U.S. at 784 ("the [c]lause

confines itself to 'testimonial statements'" [citation omitted]). The Supreme Court has offered "[v]arious

formulations" as to the scope of "testimonial," including

"statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available

for use at a later trial."[17]

Crawford, 541 U.S. at 40, 51-53 (declining to adopt any one formulation

because hearsay at issue -- wife's statement to police interrogators -- fell

"squarely within that class" of testimonial hearsay precluded by

confrontation clause). To be testimonial,

an out-of-court statement's "primary purpose must have a focus on

court" (quotation and citation omitted).

Smith, 602 U.S. at 802 . Here,

Dunlap's notes, as described by LaBelle, were testimonial.

To begin, the strips were given to Dunlap

by State police officers for the purpose of developing evidence for use in the

defendant's criminal prosecution; in fact, when the strips were seized,

officers already suspected that they contained Suboxone. See Bullcoming, 564 U.S. at 665 , citing N.M.

Stat. Ann. § 29-3-4 (2004) (considering that "a [law enforcement] officer

provided seized evidence to a state laboratory required by law to assist in

police investigations" in reaching conclusion that laboratory report at

issue was testimonial). An objective

witness in Dunlap's position would understand that her work to identify the

substance on the strip she tested was "in response to a police

request," which is one factor supporting the conclusion that the

statements she recorded in her notes were testimonial. Melendez-Diaz, 557 U.S. at 317 .

In addition, by statute, the

"regularly conducted business activity" of the crime lab is to

conduct chemical analyses for law enforcement use, which is precisely the type

of analysis Dunlap recorded in her notes.[18]

Melendez-Diaz, 557 U.S. at 321 (drug certificates were not admissible

under business records exception where "the regularly conducted business

activity is the production of evidence for use at trial"). As described, Dunlap's notes set forth

statements critical to the chemical analysis she performed for law enforcement

to provide proof necessary for the criminal case against the defendant; the

statements included the weight of the substance she tested, the pharmaceutical

marking she saw, the database she used for the screening test, the volume of

solution she used to prepare the tested strip, the type of solution she chose,

the protocols she followed, the instrument she used, and her opinion

identifying the controlled substance.

Moreover, although Dunlap's notes are not

in the record, they appeared (based on LaBelle's description)[19] to have had

at least some level of formality, containing Dunlap's initials and the crime

lab identification number on each page and her conclusion, further confirming

the testimonial nature of the notes. See

Bullcoming, 564 U.S. at 665 . Of course,

not every notation by every analyst in the crime lab will be testimonial;

analysts at the crime lab no doubt engage in a "range of recordkeeping

activities." Smith, 602 U.S. at

802 . But based on LaBelle's description,

Dunlap's notes, which apparently detailed her scientific procedures and

processes to determine the identity of the controlled substance for law

enforcement purposes, appear to have been directed at court. The formal nature of the notes, according to

LaBelle's description, detailing a necessary element of the prosecution's case

at trial, see discussion infra, suggests that they were not merely

"reminders to self."[20] Id.

Indeed, we have consistently concluded

that notes such as Dunlap's, documenting findings, observations, and

conclusions made by an analyst at the behest of law enforcement, are

testimonial. See Commonwealth v. Jones,

472 Mass. 707, 714 (2015) (nurse's statements made in labeling swabs and

completing "rape kit" "inventory list" "were plainly

testimonial" because "purpose of a 'rape kit' is to gather forensic

evidence for use in a criminal prosecution"); Commonwealth v. McCowen, 458

Mass. 461, 480 (2010) ("The observations, findings, and opinions of [the

nontestifying medical examiner] reflected in his notes and reports were

testimonial hearsay . . ."). See

also Commonwealth v. Munoz, 461 Mass. 126, 128-131 (2011), vacated and

remanded, 568 U.S. 802 (2012) (Commonwealth conceded that substitute expert's

testimony on direct examination as to "the procedure [the nontestifying

analyst] followed in weighing and analyzing the contents of the bags" as

well as "conclusions . . . by [the absent analyst] violated the

defendant's right of confrontation").

On appeal, the Commonwealth marshals only

one argument that the notes were not testimonial; specifically, relying on

LaBelle's description of Dunlap's notes, it contends that "Dunlap's notes

existed to comply with laboratory accreditation requirements or to facilitate

internal review and quality control."

Our decision in Commonwealth v. Barbosa, 457 Mass. 773 (2010), cert.

denied, 563 U.S. 990 (2011), is instructive.

There, the substitute expert testified that "accreditation

standards require a full technical review on all DNA reports that are

issued," and that she (like LaBelle) conducted the technical review of the

nontestifying analyst's "worksheets and reports" accordingly. Id. at 782.

The expert then relayed the contents of those worksheets and reports to

the jury in support of her opinion, based on her review, that the DNA profiles

obtained from stains on items worn by the defendant included the victim and

excluded the defendant as a possible source.

Id. at 781. We concluded (and in

Barbosa the Commonwealth conceded) that the substitute expert's testimony

conveying the nontestifying analyst's out-of-court statements violated the

confrontation clause, despite the testimony that the out-of-court statements

also served to facilitate the laboratory's mandated technical review. See id. at 782-784, 786.

Similarly, here, Dunlap reasonably would

anticipate that her notes "would be available for use at trial"

despite their usefulness also for purposes of the crime lab's technical and

administrative review processes; thus, Dunlap's notes were testimonial. Barbosa, 457 Mass. at 784 . Because Dunlap's notes comprised testimonial

hearsay, LaBelle's testimony relaying the contents of Dunlap's notes violated

the confrontation clause. See Crawford,

541 U.S. at 68 .

iii.

LaBelle's independent expert opinion.

We turn to consider whether, despite the constitutional violation

attendant to LaBelle's conveying Dunlap's testimonial hearsay to the jury, the

portion of LaBelle's testimony stating her "independent" opinion was

admissible. Specifically, based on her

review of Dunlap's notes, the database printout, and the output from the GC-MS,

LaBelle opined that the "data support[] the identification of"

Suboxone.

A.

Impact of Smith on substitute expert's independent opinion testimony. The Supreme Court's decision in Smith

clarified that where a substitute expert's "proffered opinion merely

replicates, rather than somehow builds on, the testing analyst's

conclusions," the absent analyst is the "witness" against the

defendant in a constitutional sense.

Smith, 602 U.S. at 791, 798-799 .

Significantly, the Supreme Court expressly rejected the State's argument

that the confrontation clause permitted a substitute expert to offer an

"independent" opinion based solely on his review of the absent

analyst's notes, report, and raw data.

Id. at 798 . See Brief for

Respondent at 1, Smith, 602 U.S. 779 (noting that one source of expert's

opinion was "graphs reflecting machine-generated raw data" from

nontestifying analyst's GC-MS testing).

In such a circumstance, the Supreme Court explained, the substitute

expert's ostensibly independent opinion was prohibited because the substitute

expert "could opine that the tested substances" were illegal drugs

"only because he accepted the truth of what [the absent analyst] had

reported about her work in the lab -- that she had performed certain tests

according to certain protocols and gotten certain results." Smith, supra at 798 . Likewise, the jury could credit the

substitute expert's opinion only because they accepted the truth of what the

absent analyst reported about her laboratory work. Id.

"So the

State's basis evidence -- more precisely, the truth of the statements on which

its expert relied -- propped up its whole case.

But the maker of those statements was not in the courtroom, and [the

defendant] could not ask her any questions."

Id. Allowing the expert to testify to such an

opinion, the Supreme Court stated, would result in an "end run"

around the confrontation clause where "the proffered opinion [of the

substitute expert] merely replicates, rather than somehow builds on, the

[absent] testing analyst's conclusions."[21] Id. at 799 .

Applying this reasoning, the United States

Court of Appeals for the Fourth Circuit concluded that a substitute expert's

opinion "founded on a [nontestifying] analyst's [testimonial] out-of-court

statements" violated the confrontation clause. See United States v. Seward, 135 F.4th 161 ,

167-169 (4th Cir. 2025). There, a

substitute DNA expert, one (like LaBelle) who had not conducted the underlying

analysis but who had performed the technical review and was familiar with the

State laboratory's procedures, provided an ostensibly "independent"

opinion dependent on the work of an absent analyst: the absent analyst's testimonial hearsay

describing the processes and procedures followed to obtain the raw data, and

the raw data from the tests performed by the analyst. Id. at 168.

See Brief for Appellee at 23-24, Seward, supra (providing detail of

substitute expert's role).

Significantly, the Fourth Circuit

determined that Smith abrogated its prior case law -- case law that in

pertinent respect mirrors our own conclusions regarding our evidentiary rule's

compliance with the confrontation clause, discussed infra. Seward, 135 F.4th at 169, citing United

States v. Summers, 666 F.3d 192, 201-202 (4th Cir. 2011), cert. denied, 568

U.S. 851 (2012). Under that precedent, a

substitute expert could provide an "independent" opinion with respect

to what "objective raw data generated by [a nontestifying] analyst"

showed even if the opinion was dependent on the truth of the absent analyst's

testimonial hearsay regarding the procedures and processes followed to generate

the data; because the substitute expert's opinion was an "original product

that could be . . . readily tested through cross-examination," the Fourth

Circuit had reasoned prior to Smith, the defendant's right of confrontation was

not violated. Seward, supra, quoting

Summers, supra at 201, 202 . After Smith,

the Fourth Circuit concluded, its precedent was no longer valid; the

defendant's confrontation right was not satisfied by cross-examination of the

substitute expert, even if the expert purported to provide an opinion based on

the raw data, because that opinion was dependent on the truth of the absent

analyst's testimonial hearsay as to the procedures and protocols the analyst

followed. Seward, supra.

In Seward, the substitute expert had not

"overtly" testified to the details of the absent analyst's work. Instead, she described the laboratory's

protocols generally, and then she turned to the case at bar and stated that the

"lab analyzed" each swab, implying that the analysis had been

conducted pursuant to the protocols to which she had testified.[22] Id. at 168. In other words, the expert in Seward provided

her opinion but did not testify expressly to its testimonial hearsay

basis. The Fourth Circuit nonetheless

concluded that the substitute expert's opinion was prohibited by the

confrontation clause. Id. at 168-169. "[T]he government," said the Fourth

Circuit mirroring the language in Smith,

"may not

sidestep the Sixth Amendment problems created by having a witness testify to

their opinions that are founded on a non-testifying analyst's out-of-court

statements by simply omitting any questions about the analyst's work. 'Approving that practice would make' Smith

and several other post-Crawford decisions 'a dead letter . . . and allow for

easy evasion of the [c]onfrontation [c]lause.'"

Seward, 135 F.4th

at 168, quoting Smith, 602 U.S. at 798 .

The Supreme Judicial Court of Maine

similarly concluded that, applying the Supreme Court's analysis in Smith, the

confrontation clause barred a substitute expert's opinion identifying a

controlled substance based on the raw data from tests performed by an absent

chemist where that opinion was dependent on the truth of the testimonial

hearsay statements documenting how the chemist generated that raw data. See State v. Thomas, 2025 ME 34 . In Thomas, the Maine court rejected the

State's argument that the substitute expert's opinion did not violate the

confrontation clause because the expert "had conducted an independent

review of [the nontestifying chemist's] data and had 'independently concluded

based on the data that the substance tested in [that] case [was]

fentanyl.'" Id. at ¶¶ 27,

56-58. Noting that the substitute expert

(unlike the expert in Smith) had conducted the technical review of the absent

chemist's work, the Maine court concluded nonetheless that his reliance on the

absent chemist's "file notes, test results, and sample profile, all

generated by and based on [the absent chemist's] actions, carrie[d] the same

problem identified by the Supreme Court in Smith." Id. at ¶ 57.[23]

The

reasoning of these cases is persuasive.[24]

We conclude that, in light of the Supreme Court's decision in Smith,

where a substitute expert's opinion is dependent upon the truth of a

nontestifying analyst's testimonial hearsay, the confrontation clause bars admission

of the opinion even if the substitute expert is familiar with the testing

analyst's laboratory protocols and reviewed the analyst's case file; an

expert's opinion based on an absent analyst's test results that depends also on

the truth of the analyst's testimonial hearsay as to the processes and

protocols she said she followed to obtain those results is precluded by the

confrontation clause.[25] Such expert

opinion testimony, after Smith, is prohibited because the relevant witness

against the accused, in a constitutional sense, is the absent analyst.[26]

B. Application.

Here, LaBelle opined that the "data support[] the identification

of" Suboxone; LaBelle's opinion identifying the controlled substance

cannot be divorced from Dunlap's testimonial hearsay. Indeed, in response to the prosecutor's direct

query whether LaBelle's opinion was based on her review of "the raw

data," LaBelle testified only that her opinion was based on

"reviewing the actual case file," which included Dunlap's notes. LaBelle's opinion on the identification of

the controlled substance depended on the truth of Dunlap's out-of-court

statements, including her view of the GC-MS output for which she relied on the

truth of Dunlap's statements regarding the procedures and protocols Dunlap followed

to generate the output.

Yet,

it is the prosecution's burden to prove its case without violating the

defendant's confrontation clause rights.

See Bullcoming, 564 U.S. at 666 (prosecution "bears the

burden" of proving its case consistent with mandates of confrontation

clause); Melendez-Diaz, 557 U.S. at 324 ("the [c]onfrontation [c]lause

imposes a burden on the prosecution to present its witnesses"); Taylor v.

Illinois, 484 U.S. 400 , 410 n.14 (1988) (constitutional rights such as that of

confrontation "are designed to restrain the prosecution by regulating the

procedures by which it presents its case against the accused. They apply in every case, whether or not the

defendant seeks to rebut the case against him or to present a case of his own"). As discussed in detail infra, the

Commonwealth did not do so.

I. Screening test. Admittedly, with regard to the screening

test, LaBelle herself reviewed the pharmaceutical identification markings; but

she did not testify that she was able to determine that the printout from the

pharmaceutical database, which itself was not testimonial,[27] reflected the

results for the markings LaBelle personally observed. Instead, LaBelle's opinion depended on the

truth of Dunlap's out-of-court statements that the pharmaceutical

identification of the seized substance was the imprint Dunlap recorded in her

notes, and that her database search showed the controlled substance was

Suboxone on an initial screening review.

II. GC-MS printout. LaBelle testified that she reviewed a GC-MS

output in the case file. Specifically,

after LaBelle testified regarding the content of Dunlap's notes, LaBelle and

the prosecutor had the following exchange:

Q.: "Did you yourself, during your technical

review, do a data review of the items on this particular case?"

A.: "Yes.

So, in reviewing the data printouts independently, as another forensic

scientist, the data supports a conclusion of [Suboxone]."

Q.: "So, in your opinion, can you say with a

degree of scientific certainty what that controlled substance is?"

A.: "Yes."

Q.: "Okay.

And what is that?"

A.: "Again, the data supports the

identification of [Suboxone]."

Viewed in

isolation, this testimony might have suggested to the jury that LaBelle's

opinion rested solely on the GC-MS output; and the printout of the GC-MS output

itself, which was not introduced in evidence and is not in the record before

us, was not testimonial hearsay.[28]

See Commonwealth v. Souza, 494 Mass. 705 , 718-719 (2024), quoting

Commonwealth v. Davis, 487 Mass. 448 , 465 (2021), S.C., 491 Mass. 1011 (2023)

("'[c]omputer-generated records are created solely by the mechanical

operation of a computer and do not require human participation' -- i.e., they

do not contain a statement from a person"). See also United States v. Moon, 512 F.3d 359,

362 (7th Cir.), cert. denied, 555 U.S. 812 (2008) (raw results not

"statements" and machine not "declarant" because "how

could one cross-examine a gas chromatograph?"); United States v. Washington,

498 F.3d 225, 229-231 (4th Cir. 2007), cert. denied, 557 U.S. 934 (2009)

(machine-generated data of chemical composition of defendant's blood were not

hearsay statements); People v. Lopez, 55 Cal. 4th 569, 589-590 (2012), cert.

denied, 568 U.S. 1217 (2013) (noting that "the printout produced by the

gas chromatograph machine, which was not hearsay, was properly admitted and

explained by the expert testimony").

Neither

Smith nor the cases that have followed, see discussion supra, expressly address

the situation where a substitute expert provides an opinion based only on raw

data, like the GC-MS output in this case.

Nor do we face that situation here.[29]

As the Commonwealth rightly concedes, LaBelle's opinion identifying the

controlled substance did not rely on the GC-MS output alone. The Commonwealth instead acknowledges that

LaBelle's opinion also depended on Dunlap's notes. Specifically, LaBelle's opinion identifying

the controlled substance depended on the truth of Dunlap's out-of-court statements

as to the proper procedures and protocols she said she used in inputting the

tested sample into the GC-MS and the GC-MS output. Indeed, the above-quoted testimony was

provided immediately following LaBelle's testimony describing the content of

Dunlap's notes, which as discussed supra, were testimonial hearsay. Those notes, according to LaBelle, recorded

Dunlap's statements as to what Dunlap did to prepare a strip for analysis by

the GC-MS, the procedures and protocols Dunlap said she followed, and the

results of the GC-MS testing retained by Dunlap in the case file. On cross-examination, trial counsel asked

LaBelle whether she was "relying on the conclusions and opinions of

[Dunlap,] who did the actual test."

LaBelle responded, confusingly, "So, I am reviewing the data

currently and saying that the data supports a conclusion of the results."

On

redirect examination, the prosecutor attempted to clarify the basis of

LaBelle's opinion testimony, asking, "And finally, as it relates to your

opinion about this substance, is that based on the work of someone else or your

own review of the raw data?"

LaBelle did not testify that she was relying on the raw data; instead,

she responded to the prosecutor's direct inquiry as follows: "In reviewing the actual case file,

which I have here, I'm giving an independent conclusion based on that

information." The "actual case

file," which LaBelle had in her hands as she testified, was described

earlier by LaBelle; it included Dunlap's notes recording the weight of the

substance to be tested, whether Dunlap performed a screening test and a

confirmatory test, "specific data" for each test, the volume that

Dunlap took, how much solution she used, the type of solution she used, the

results for each test, and Dunlap's final conclusion.

Thus, LaBelle's opinion as to the

identity of the controlled substance did not rest on the raw data set forth in

the GC-MS output alone; instead, her opinion depended on the truth of the

statements set forth in Dunlap's notes, the substance of which LaBelle conveyed

to the jury by testifying that Dunlap had performed the tests that Dunlap's

notes stated that she performed according to proper protocols.

To be sure, LaBelle also was the

technical and administrative reviewer of Dunlap's work, reviewing Dunlap's

notes contemporaneously for quality assurance.

But the record does not indicate that LaBelle's contemporaneous role

provided her with any personal knowledge as to the truth of the statements in

Dunlap's notes upon which she relied in forming her opinion. LaBelle's technical and administrative

reviews, and her conclusion that Dunlap complied with laboratory protocols and

procedures, rested on the truth of Dunlap's statements as to the process Dunlap

said she undertook and the sample Dunlap said she tested; LaBelle observed none

of these actions reported by Dunlap. Cf.

Bullcoming, 564 U.S. at 673 (Sotomayor, J., concurring in part) (suggesting

"[i]t would be a different case if, for example, a supervisor who observed

an analyst conducting a test testified about the results or a report about such

results" [emphasis added]). See

Thomas, 2025 ME 34, ¶¶ 56-58 (substitute chemist compared data produced by

GC-MS to known profile of fentanyl to opine on match, but his opinion relied on

nontestifying chemist's "report that the particular data [from the GC-MS]

came from the samples seized from [the defendant]").

While LaBelle asserted that her opinion

was "independent" and based on her review of the "data" in

the case file, LaBelle did not observe Dunlap perform the steps Dunlap

described in her notes, and importantly, LaBelle did not testify that anything

other than her acceptance of the truth of Dunlap's out-of-court statements,

which LaBelle related to the jury, permitted her to confirm Dunlap's

self-described compliance with the crime lab's procedures or that the raw data

reflected the testing of the strip seized at the house of correction. See, e.g., Barbosa, 457 Mass. at 782

(testifying expert conducted technical review of absent analyst's out-of-court

statements, including worksheets and reports, and had signed analyst's final

report but "only way to be certain that a mistake did not occur . . .

would be to retest the samples" because testifying expert was not "standing

over [the absent analyst's] shoulders").[30] She did not testify, for example, that

something about the database printout or the GC-MS output allowed her to

confirm the procedures Dunlap said she performed in compliance with the crime

lab's protocols, or that this data permitted her to conclude that they

reflected the strip Dunlap said she tested.

Thus, informed by the Supreme Court's

reasoning in Smith, we conclude that LaBelle's opinion identifying the

controlled substance was "independent" in name only. She reviewed the GC-MS output, which was not

testimonial hearsay, but her opinion identifying the controlled substance,

including her interpretation of the GC-MS output, was dependent on the truth of

Dunlap's out-of-court testimonial statements.

See Smith, 602 U.S. at 799 .

Although LaBelle was a crime lab supervisor and had reviewed Dunlap's

notes as part of that role, Dunlap (not LaBelle) was the witness against the

defendant in a constitutional sense; cross-examination of LaBelle could not

ferret out any incompetence, fraud, weaknesses, mistakes, or other limitations

that might not be apparent on the face of Dunlap's notes. See id. at 796-799 . Accordingly, LaBelle's opinion identifying

the controlled substance violated the confrontation clause. Here, the absence of Dunlap's live testimony

violated the defendant's confrontation right, as discussed supra, and precluded

LaBelle's opinion.

d. Impact of Smith on our common-law evidentiary

rule. We have repeatedly examined our

evidentiary rule following the Supreme Court's decisions concerning the

confrontation clause, each time concluding that our evidentiary rule was more

protective than the confrontation clause.

See Commonwealth v. Tassone, 468 Mass. 391, 399 (2014). Following the change in confrontation clause

jurisprudence set forth in Smith, discussed supra, we conclude that our

evidentiary rule does not pass constitutional muster where an expert testifies

to an opinion that depends on the truth of the testimonial hearsay of a nontestifying

analyst; this is true even where the expert's opinion also is based on the

expert's analysis of raw data generated by the nontestifying analyst that

depends on the truth of the analyst's testimonial hearsay as to the sample she

says she tested and the processes and protocols she says she followed to obtain

the raw data. See, e.g., Seward, 135

F.4th at 167-169.

Briefly, under our evidentiary rule, an

expert opinion is admissible even if it is based on facts and data not in

evidence so long as such facts and data are independently admissible and of the

type reasonably relied upon by experts in the particular field in formulating

an opinion.[31] See Department of Youth

Servs. v. A Juvenile, 398 Mass. 516, 531-532 (1986). In contrast, the basis evidence -- that is,

admissible but not admitted facts and data -- is inadmissible on direct

examination of the testifying expert.

Id.

Where the basis of an expert's opinion is

the testimonial hearsay of an absent analyst, our evidentiary rule implicates

the defendant's right of confrontation.

See Barbosa, 457 Mass. at 784 .

Each time that we examined it prior to Smith, however, we concluded that

our evidentiary rule comported with the defendant's confrontation right. See Commonwealth v. Greineder, 464 Mass. 580,

584-589 , cert. denied, 571 U.S. 865 (2013) (reviewing cases). See also Tassone, 468 Mass. at 399 ("Our

common law of evidence is more protective of confrontation rights . . .").

In

so concluding, we reasoned that our rule prohibits the introduction of

testimonial hearsay on direct examination of the expert; thus, the absent

analyst's out-of-court statements would not be introduced on direct examination

at all, let alone for the truth of the matter asserted. See Commonwealth v. Chappell, 473 Mass. 191,

202 (2015) ("an expert witness is not permitted to testify on direct

examination to facts or data that another, nontestifying expert has generated,

or to the nontestifying expert's own opinion, even though this information may

be an important part of the basis of the testifying expert's

opinion"). Such hearsay comes into

evidence under our rule only if the defendant "opens the door"

through cross-examination. See

Greineder, 464 Mass. at 600 (defendant who elicits hearsay data on

cross-examination "waives his confrontation right"); Barbosa, 457

Mass. at 785 (defendant "cannot reasonably claim that his right to

confront the witnesses against him is violated by the admission of evidence

that he elicits on cross-examination").

In

addition, we reasoned that our evidentiary rule did not impinge on the

confrontation right because the expert witness would be subject to

cross-examination concerning his or her expert opinion and the reliability of

the absent analyst's testimonial hearsay.

See Greineder, 464 Mass. at 584, 594-595 . We previously recognized that to comport with

the defendant's confrontation right, the proffered expert must be capable of

being meaningfully cross-examined, see Tassone 468 Mass. at 400-402 ; not any

old expert will do, see Smith, 602 U.S. at 798 , citing Bullcoming, 564 U.S. at

659-661 . Meaningful cross-examination

requires, at a minimum, that the expert who relies on the testimonial hearsay

of an absent analyst generally should be familiar with the protocols and

processes of the absent analyst's laboratory.

See, e.g., Tassone, supra at 401-402 (substitute DNA expert's opinion

improperly admitted where expert was not affiliated with testing analyst's

laboratory, had no personal knowledge of laboratory's protocols, and had not

seen testing analyst's worksheets generated during testing). But see Commonwealth v. Nardi, 452 Mass. 379,

388-391 (2008) (substitute medical examiner's opinion properly admitted because

it was based on review of nonhearsay "autopsy photographs and pathology

samples," photographs and blood evidence at crime scene, statements

regarding body decomposition that had been introduced in evidence, and

testimonial hearsay recorded in absent medical examiner's autopsy report,

despite substitute being from different office).

We held that an expert who relied on an

absent analyst's testimonial hearsay would have to do more than

"parrot[]" the analyst's conclusions; the expert's opinion would have

to be "independent."

Greineder, 464 Mass. at 595 .

Under the evidentiary rule, however, we concluded that an expert's

opinion would be "independent" where the expert reviewed the data

from tests run by the absent analyst, even though he or she did not observe the

analyst perform the tests and instead relied on the truth of the analyst's

out-of-court statements that the analyst complied with laboratory protocols and

accepted scientific methodologies. See

id.

Recognizing that the defendant may be

"disadvantaged" because he or she cannot cross-examine the testing

analyst regarding the analyst's actual compliance with laboratory protocols,

any mishandling or mislabeling of the substance tested, or outright

manipulation and fraud, we nonetheless allowed, under our evidentiary rule, the

expert to testify to his or her "independent" opinion despite this

"practical limitation" on the scope of cross-examination, which

"exists whenever any expert relies on the results of tests, experiments,

or observations conducted by another."

Barbosa, 457 Mass. at 790 . We

reasoned that an expert who did not observe the absent analyst's testing

nonetheless could be meaningfully cross-examined on the absent analyst's work

because "[r]easonable reliance . . . implies that the expert will have

ascertained that the data on which he or she relies are adequate and

appropriate to the task and were prepared in conformity with accepted . . .

scientific . . . practices and procedures." Greineder, 464 Mass. at 596 , quoting Munoz,

461 Mass. at 134 .

Thus,

under our evidentiary rule, LaBelle's reliance on the facts and data recorded

in Dunlap's notes would not have precluded LaBelle from providing her opinion.[32] She was the crime lab supervisor, familiar

with the crime lab's protocols and procedures; in fact, prior to her

supervisory role, LaBelle had been an analyst.

She performed the technical and administrative reviews on the case

file. LaBelle's testimony was

"independent" under our evidentiary rule because she reviewed the raw

data from Dunlap's work, including the database printout and GC-MS output,

which supported the identification of the controlled substance because Dunlap's

testimonial hearsay stated that the data were generated according to proper

protocols and procedures. See Greineder,

464 Mass. at 596 . As such, LaBelle's

opinion would have been admissible under our evidentiary rule. See, e.g., Commonwealth v. Grady, 474 Mass.

715, 723-724 (2016) (permitting laboratory supervisor who conducted technical

review of testing analyst's work to state "independent" opinion that

seized substance was cocaine based on review of data generated by testing

analyst); Commonwealth v. Gonzalez, 93 Mass. App. Ct. 6, 13 (2018) (allowing

testimony regarding identity of controlled substance from substitute chemist

who reviewed testing analyst's work and evaluated data to reach

"independent" opinion).

Following Smith, this aspect of our evidentiary rule, which permits a

substitute expert who is a supervisor of the crime lab to provide an opinion

regarding raw data generated by an absent analyst that depends on the truth of

the testimonial hearsay of an absent analyst as to the processes and protocols

she says she followed to obtain the data, no longer comports with the right of

confrontation, and the admission of such expert opinion testimony is an error

of constitutional dimension.

e.

Review of constitutional error.

Where, as here, the defendant's rights were preserved through objection

at trial,[33] "we evaluate the admission of constitutionally proscribed

evidence to determine whether it was harmless beyond a reasonable

doubt." Commonwealth v. Rand, 487

Mass. 811 , 814-815 (2021), quoting Commonwealth v. Wardsworth, 482 Mass. 454,

458 (2019). Unless we are satisfied that

the "'erroneously admitted [evidence] had little or no effect on the

verdicts,'" "[a] violation of the right to confrontation requires a

new trial."[34] Commonwealth v.

Montrond, 477 Mass. 127, 138 (2017), quoting Commonwealth v. Vasquez, 456 Mass.

350, 362 (2010).

To

assess the effect of a particular witness's testimony on the verdict, we

generally consider "the importance of the witness'[s] testimony in the

prosecution's case, whether the testimony was cumulative, the presence or

absence of evidence corroborating or contradicting the testimony of the witness

on material points, the extent of cross-examination otherwise permitted, and,

of course, the overall strength of the prosecution's case." Commonwealth v. Vardinski, 438 Mass. 444, 452

(2003), quoting Commonwealth v. DiBenedetto, 414 Mass. 37, 40 (1992), S.C., 427

Mass. 414 (1998). "[T]he

prosecution bears the burden of establishing that the error was harmless,"

and "[w]e resolve all ambiguities and doubts in favor of the

defendant." Vardinski, supra at

452-453 .

LaBelle

was a key witness for the prosecution.

She alone testified that the strips that the defendant passed to the

inmate contained a controlled substance.

Other evidence, such as the jail telephone calls, suggested that the

defendant was involved in a scheme to pass something to the inmate using the

ruse of providing the inmate with legal paperwork, and the officers who

confiscated the strips from the inmate suspected they contained Suboxone; but

only LaBelle's testimony confirmed the presence of the controlled substance, an

essential element of the government's case.

See G. L. c. 268, § 28. As we

have observed, portions of LaBelle's testimony were muddled; viewed in

isolation, one portion of this testimony might have suggested that her opinion

rested on the raw data set forth in the GC-MS output alone. But, as the Commonwealth concedes, her

opinion as to the significance of the raw data was dependent on the truth of

the contents of Dunlap's notes, which LaBelle also related to the jury to

inform the jury of the procedures Dunlap recorded as having followed. In brief, LaBelle's opinion regarding the

meaning of the raw data depended on the truth of Dunlap's testimonial hearsay

as to the procedures and protocols Dunlap said she followed. Thus, the Commonwealth has not shown that

LaBelle's erroneously admitted testimony based on and relating that testimonial

hearsay had "little or no effect" on the jury. See Montrond, 477 Mass. at 138 .

Far

from meeting its burden to prove its case without violating the defendant's constitutional

right to confront the witnesses against her, here, the Commonwealth's critical

evidence on the identity of the substance was dependent on the truth of

Dunlap's testimonial hearsay. See

Bullcoming, 564 U.S. at 666 ; Melendez-Diaz, 557 U.S. at 324 ; Taylor, 484 U.S.

at 410 n.14. In short, LaBelle's opinion

testimony and her testimony regarding the content of Dunlap's notes necessarily

affected the verdict. See Montrond, 477

Mass. at 138 . The error in admitting the

constitutionally infirm portions of LaBelle's testimony was therefore not

harmless beyond a reasonable doubt. See

Rand, 487 Mass. at 814-815.

Notably,

the Commonwealth has not tried to show otherwise. See note 33, supra. Instead, in connection with its erroneous

assertion of the standard of review for unpreserved error, the Commonwealth

contends that the defendant did not contest the identification of the substance

as Suboxone, and that the defense at trial was only that the defendant was not

aware that the envelopes she delivered contained Suboxone.

We addressed and rejected a similar

argument in Vasquez, 456 Mass. 350 . In

Vasquez, the defendant was convicted of possession and distribution of cocaine,

and at trial -- which took place before Melendez-Diaz -- the Commonwealth

introduced forensic certificates to prove the identity of the substances at

issue. Id. at 351-354 . Defense counsel did not object to the

admission of the certificates and in closing argument "appeared to concede

that the substances in question were narcotics"; instead, "[t]he

defense was mistaken identity." Id.

at 354-355 .

Nevertheless,

we treated the constitutional error as preserved, in part because objection

would have been futile under our pre-Melendez-Diaz jurisprudence, and turned to

consider whether the error was harmless beyond a reasonable doubt. Vasquez, 456 Mass. at 356 . We concluded that it was not, even though the

defense at trial did not hinge on the identification evidence; the admission of

the certificates was "the only direct evidence that the white powder . . .

seized was cocaine," an element of the crimes charged against the

defendant, and thus may have had an effect on the fact finder and contributed

to the verdicts. See id. at

366-367 . Similarly, here, even though the

defendant did not continue to press the issue once the motion to strike

Labelle's testimony was denied, the prosecution bore the burden to establish

the identity of the controlled substance and only LaBelle's improper opinion

testimony provided that proof.

Moreover,

the defense that was pursued -- that the defendant did not know the strips

contained a controlled substance -- was not inconsistent with a defense based

on the failure of the prosecution to show that a controlled substance had been

delivered. See Vasquez, 456 Mass. at 368

("a preserved constitutional error . . . cannot go unchecked on appeal

because the defendant did not build his defense around it"). Indeed, the defendant objected to LaBelle's

testimony and tried to strike it from the record. Following that objection, particularly where

the error went "to the heart of the government's case," the defendant

"ha[d] no further obligation . . . to contest the issue. There is, and should be, no burden on a

defendant to continue to object to evidence at the risk of losing [her]

constitutional rights." Id. Had that objection been sustained and the

testimony stricken, as it should have been in view of Smith, the defendant

would have had another defense -- namely, that the prosecution had not shown a

violation of G. L. c. 268, § 28, at all.

In these circumstances, the constitutional violation was not harmless

beyond a reasonable doubt.

f.

Retroactivity. Our conclusion

drawn from Smith that the confrontation clause prohibits a substitute expert's

opinion that is dependent on the truth of a nontestifying analyst's testimonial

hearsay, including an expert's view of raw data dependent on the truth of an

analyst's testimonial hearsay, departs from our precedent and breaks new

ground; it is therefore a new rule. See

Commonwealth v. Sylvain, 466 Mass. 422, 428 (2013), S.C., 473 Mass. 832 (2016),

quoting Teague v. Lane, 489 U.S. 288, 301 (1989) ("a case announces a new

rule when it breaks new ground or imposes a new obligation on the States . . .

[or] if the result was not dictated by precedent existing at the time the

defendant's conviction became final"); Commonwealth v. Melendez-Diaz, 460

Mass. 238, 239-240 (2011), citing Teague, supra. Accordingly, the new rule applies to the

defendant because her case is before us on direct review, but the rule "is

not applicable to convictions . . . that had become final prior to its

issuance." Commonwealth v. Boria,

460 Mass. 249, 251 (2011) (denying defendant's request "to apply

Melendez-Diaz retroactively to the collateral challenge to her

conviction").

3.

Conclusion. For the foregoing

reasons, we vacate the defendant's conviction of unlawfully delivering a class

B controlled substance to a prisoner, G. L. c. 268, § 28, and remand for a new

trial consistent with this opinion.

So

ordered.

GEORGES, J. (concurring in the judgment,

with whom Gaziano, J., joins). I concur

with the court's judgment but write separately because I do not agree that the

admission of Carrie LaBelle's ultimate opinion violated the defendant's right

to confrontation under the Sixth Amendment to the United States

Constitution. Ante at . In

reaching its conclusion, the court reads the United States Supreme Court's

decision in Smith v. Arizona, 602 U.S. 779 (2024), to abrogate our precedent

allowing a testifying expert to offer an independent opinion based on testing

conducted by a nontestifying analyst.

Ante at . This reading of Smith goes too far. An expert who independently reviews raw, machine-generated

data and testifies to her own conclusions -- based on her training and

experience -- does not violate the confrontation clause. See Commonwealth v. Souza, 494 Mass. 705 ,

718-719 (2024).

Nonetheless, while I disagree with the

court's application of Smith to LaBelle's opinion, I cannot conclude on this

record that other portions of her testimony -- specifically those concerning

Kimberly Dunlap's notes -- were properly admitted or, if not, that their

admission was harmless beyond a reasonable doubt. I therefore concur in the judgment of the

court.

1.

Lack of impact of Smith in Massachusetts. The court reads Smith as if it announced a

categorical rule that any exposure by a substitute expert to testimonial

hearsay, however incidental, taints the entirety of that expert's opinion, even

when the opinion rests on independent analysis of raw, machine-generated

data. Ante at .

According to the court, when a testifying expert relies both on

machine-generated data -- which, as discussed below, is not testimonial hearsay

-- and on a nontestifying analyst's statements about "the processes and

protocols she said she followed to obtain those results," the entire

opinion becomes inadmissible under the confrontation clause. Id. at

.

Smith imposes no such bright line

rule. Rather, Smith addressed the

admissibility of hearsay conveyed by a testifying expert in support of that

expert's opinion. Smith, 602 U.S. at

783 . The Supreme Court held that when

"an expert conveys an absent analyst's statements in support of his

opinion, and the statements provide that support only if true," the

statements are offered for their truth and are inadmissible if

testimonial. Id. In doing so, the Court expressly abrogated

the contrary plurality rule in Williams v. Illinois, 567 U.S. 50, 58 (2012),

which had permitted such statements to be admitted not for their truth, but to

explain the basis of the expert's opinion.

See Smith, supra at 795 .

Our pre-Smith case law already reflects this

understanding: the critical inquiry is

whether the testifying expert has formed an independent opinion based on the

expert's own analysis. See Commonwealth

v. Greineder, 464 Mass. 580, 595 , cert. denied, 571 U.S. 865 (2013);

Commonwealth v. Barbosa, 457 Mass. 773 , 783–784 (2010), cert. denied, 563 U.S.

990 (2011). If so, the opinion does not

violate the defendant's confrontation rights because the expert is testifying

at trial and subject to cross-examination.

Barbosa, supra. It is only when

the expert functions as a "conduit" for a nontestifying analyst's

opinion that the testimony becomes inadmissible testimonial hearsay (citation

omitted). Greineder, supra. See Commonwealth v. Chappell, 473 Mass. 191,

202 (2015) ("an expert witness is not permitted to testify . . . to the

nontestifying expert's own opinion").

Smith addresses the admissibility of the

basis for an expert's opinion -- not the opinion itself. See, e.g., Smith, 602 U.S. at 783 (case

concerns admissibility of "absent analyst's statements in support of

[testifying expert's] opinion"). It

does not address whether a testifying expert may rely on machine-generated data

in forming an admissible opinion. That

distinction matters. Massachusetts law

has long drawn a line between the admissibility of the expert's opinion and the

inadmissibility of any hearsay statements underlying that opinion.[35] Greineder, 464 Mass. at 584 .

The court emphasizes the phrase in Smith

describing an expert who "merely replicates, rather than somehow builds

on," a nontestifying analyst's opinion.

Smith, 602 U.S. at 799 . This

language does not impose a new requirement that a testifying expert must

"build on" a prior opinion to render his or her own opinion

admissible. Rather, it addresses whether

the testifying expert is simply repeating hearsay that is potentially

testimonial. Id. Accordingly, Smith does not displace our

long-standing framework for determining whether an expert opinion is

independent for confrontation purposes.[36]

By interpreting Smith otherwise, the court has needlessly unsettled

Massachusetts law.

Under

our precedent, exposure to some testimonial hearsay does not automatically

render a substitute expert's opinion inadmissible. See, e.g., Commonwealth v. Nardi, 452 Mass.

379 , 390–391 (2008) (no confrontation clause violation where testifying

expert's opinion relied on testimonial hearsay but reflected expert's own

analysis). Nor is an opinion

inadmissible simply because the testifying expert reaches the same conclusion

as the nontestifying analyst; two experts may independently arrive at the same

conclusion. Id. at 390 .

Our

cases focus on whether the testifying expert's opinion is meaningfully

independent, based on the totality of the information reviewed. Nardi, 452 Mass. at 389–390. When the materials include computer-generated

records, the confrontation analysis further depends on the nature of the

data: whether it is "'computer-generated,'

'computer-stored,' or a hybrid of both."

Commonwealth v. Davis, 487 Mass. 448 , 465 (2021), S.C., 491 Mass. 1011

(2023). See, e.g., Souza, 494 Mass. at

718; Commonwealth v. Brea, 488 Mass. 150 , 159–160 (2021). Purely machine-generated data -- such as a

gas chromatography–mass spectrometry (GC-MS) printout -- does not constitute

hearsay because it is created automatically, without human input. Souza, supra.

See United States v. Moon, 512 F.3d 359, 362 (7th Cir.), cert. denied,

555 U.S. 812 (2008); United States v. Washington, 498 F.3d 225, 230 (4th Cir.

2007), cert. denied, 557 U.S. 934 (2009).

As Justice Sotomayor noted in her concurrence in Bullcoming v. New

Mexico, 564 U.S. 647 , 673–674 (2011), the Court did not decide whether "a

State could introduce . . . raw data generated by a machine in conjunction with

the testimony of an expert witness."

That was likewise the case in Smith.

Accordingly, expert opinions based on raw,

machine-generated data remain admissible under the confrontation clause, even

after Smith. A qualified expert may

testify to her own opinion based on machine output -- such as a GC-MS printout

-- even if she did not personally conduct the underlying test. See Souza, 494 Mass. at 718-719. This principle has been reaffirmed in

multiple post-Smith decisions. See,

e.g., Gourley v. State, 710 S.W.3d 368 , 378 n.3 (Tex. App. 2025)

(distinguishing Smith where testifying expert "formed his own conclusions

based upon his review of the raw data"); State vs. Shea, Minn. Ct. App.,

No. A23-1523, slip op. at 10-11 (Sept. 9, 2024) (testimony admissible where

expert independently reviewed machine-generated data); State vs. Kellum, N.M.

Ct. App., No. A-1-CA-41306, slip op. at 6-7 (Apr. 23, 2025) (testifying expert

"came to independent conclusions based on his review of the data from the

machine" despite reviewing nontestifying expert's notes).[37] These decisions correctly distinguish between

testimonial statements and the routine, standardized production of raw

machine-generated data.[38]

Even so, whether an expert's opinion is

based on machine-generated data is not the only consideration in determining

the admissibility of that opinion. We

have long required that a testifying expert possess meaningful knowledge of the

relevant laboratory processes, typically through affiliation with the

laboratory, familiarity with its protocols, or service as a technical reviewer

of the prior analyst's work. See

Commonwealth v. Sanchez, 476 Mass. 725, 732 (2017); Barbosa, 457 Mass. at

791 . We have accordingly disallowed

testimony from experts lacking such foundational knowledge. See Commonwealth v. Tassone, 468 Mass. 391 ,

401–402 (2014).

Nothing in Smith disturbs this rule. To the contrary, courts applying Smith have

reaffirmed that a testifying expert may offer an independent opinion where the

expert has sufficient familiarity with the underlying testing and

procedures. See Dunlap vs. State, Md.

App. Ct., No. 969, Sept. Term, 2023, slip op. at 23 (Apr. 8, 2025)

("Nothing in Smith undermines" Maryland's rule permitting technical

reviewer to testify to reviewer's own conclusions);[39] Shea, Minn. Ct. App.,

No. A23-1523, slip op. at 10-11 (expert testimony admissible where expert

served as technical reviewer).

This requirement serves an essential

purpose: it ensures that the expert can

be meaningfully cross-examined -- not necessarily about every step taken by the

original analyst, but about the reliability of the data and the soundness of

the expert's own interpretation. See

Greineder, 464 Mass. at 596-598 . Where

the expert has sufficient familiarity with the laboratory's standard protocols,

or has served as the technical reviewer, the defendant retains a fair

opportunity to test the basis for the expert's conclusions. See id.

See also Sanchez, 476 Mass. at 732 .

Cross-examination may probe whether the expert made unwarranted

assumptions, failed to account for potential error, or over-relied on data that

appear flawed or incomplete. See

Greineder, supra; Barbosa, 457 Mass. at 791 .

Although the expert may not be able to answer how a particular analyst performed

a specific procedure, the expert must still be able to explain why the raw data

can be trusted and how, in the expert's independent judgment, that raw data

supports the conclusion offered at trial.

Greineder, supra at 596 .

2.

Application. a. LaBelle's independent expert opinion. At trial, LaBelle was asked whether she could

state, "with a degree of scientific certainty," the identity of the

controlled substance reflected in the data she reviewed. She responded, "[I]n reviewing the data

printouts independently, as another forensic scientist, the data supports a

conclusion of Buprenorphine and Naloxone" (emphasis added). Notably, she did not refer to or adopt

Dunlap's conclusions; instead, she testified based on her own interpretation of

the "data."

The critical question is what

"data" LaBelle relied upon.

Even assuming, as the court does, that Labelle's reference to

"data" included some testimonial hearsay from Dunlap's notes, that

alone does not render her opinion inadmissible.

The relevant inquiry is whether her conclusion rested on an independent

analysis. Labelle's testimony that she

reached her conclusion "with a degree of scientific certainty,"

strongly indicates that she did not simply repeat Dunlap's conclusions. To express that level of certainty, she

necessarily would have relied primarily, if not exclusively, on the GC-MS

results. As the court itself

acknowledges, neither visual inspection of an unknown substance nor reference

to a search of a pharmaceutical database using the substance's characteristics

(such as its color or markings) would permit an expert to identify a substance

with scientific certainty. Ante at note

27.

Thus, even if LaBelle reviewed Dunlap's

notes, LaBelle's opinion was based on her independent analysis of the raw GC-MS

data. Excluding her testimony solely

because she reviewed those notes would impose an unnecessarily rigid rule --

one that would disqualify nearly all technical reviewers, even when their

conclusions rest on machine-generated results.

Whether LaBelle relied primarily or exclusively on the GC-MS output, her

opinion reflected an independent judgment, not a surrogate endorsement of

Dunlap's conclusions. It therefore did

not violate the confrontation clause.

Even accepting the court's stringent rule,

which I do not, it does not follow that LaBelle's opinion relied on both the

GC-MS output and Dunlap's notes.

LaBelle's testimony can reasonably be understood as resting solely on

the machine-generated data, which alone could support her conclusion to a

degree of scientific certainty. Such

machine-generated data is not hearsay.

See Souza, 494 Mass. at 718; Davis, 487 Mass. at 465. See also Moon, 512 F.3d at 362 ; Washington,

498 F.3d at 230 .

The court's interpretation of Smith

appears to suggest that only the analyst who performed the testing may testify

to raw data, because such data is typically derived from the execution of

"processes and protocols." Ante

at ("an expert's opinion based

on an absent analyst's test results that depends also on the truth of the

analyst's testimonial hearsay as to the processes and protocols she said she

followed to obtain those results is precluded by the confrontation

clause"). But that reading

unnecessarily departs from settled precedent.

Had the Commonwealth introduced only the GC-MS results and called

LaBelle to interpret them live at trial, there would be no confrontation clause

violation. See Moon, 512 F.3d at 362

("[H]ow could one cross-examine a gas chromatograph?"); State v.

Michaels, 219 N.J. 1, 44 , cert. denied, 574 U.S. 1051 (2014) ("Clearly,

defendant could not cross-examine the machines themselves"). In substance, that is precisely what occurred

here.

This court has long held that the central concern

is not whether the expert "pushed the button" on the machine, but

whether the expert formed an independent opinion and can be meaningfully

cross-examined. See Souza, 494 Mass. at

719 n.17; Greineder, 464 Mass. at 596-598 ; Barboza, 457 Mass. at 791-793 . The confrontation clause does not demand the

impossible -- cross-examination of a machine or every technician who performed

a mechanical step in a standardized process.

See Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 311 n.1 (2009)

(government need not produce at trial "everyone who laid hands on the

evidence").

What is constitutionally required is an

opportunity for meaningful cross-examination -- and that is precisely what the

defendant here received. That is,

LaBelle possessed sufficient knowledge to permit meaningful

cross-examination. Her background and

direct connection to the State police crime laboratory (crime lab), as well as

to the testing conducted in this case, provided a firm foundation for her

expert opinion on both the identity of the substance analyzed and the

laboratory's policies and procedures.

LaBelle worked as an analyst at the laboratory for seven years before

becoming a supervisor, in which role she regularly conducted technical reviews

of other analysts' work. As she

explained, a technical review involves verifying that each step of the

laboratory's protocol was followed and that the analyst's conclusions are

scientifically supported.

In this case, LaBelle served as the

technical reviewer for the testing conducted by Dunlap. This role and her background at the crime lab

gave her sufficient familiarity with the underlying procedures and results to

support her own independent opinion.

Accordingly, the defendant had a meaningful opportunity to cross-examine

her regarding both the laboratory's protocols and the basis for her

conclusions. See Sanchez, 476 Mass. at

732 ; Barbosa, 457 Mass. at 791 . Nothing

in the court's opinion prevents the Commonwealth from presenting substitute

expert testimony based on an independent review of raw data in this manner.

b.

Dunlap's notes. While LaBelle's

opinion was properly admitted, that does not resolve whether the admission of

her testimony concerning Dunlap's notes violated the defendant's confrontation

rights, as we must assess the admissibility of that testimony separately. See Greineder, 464 Mass. at 584 .

The court assumes that Dunlap's notes are

testimonial -- a questionable proposition, given the scant evidentiary

foundation. The notes were not introduced

at trial, marked for identification, or included in the record on appeal. Nor was Dunlap subject to voir dire

examination regarding why the notes were created. Without knowing their content or context, it

is impossible to determine whether the notes were created primarily to

substitute for trial testimony, as required under the "primary

purpose" test.[40] See Michigan v.

Bryant, 562 U.S. 344 , 358-359 (2011); United States v. Seward, 135 F.4th 161 ,

169 (4th Cir. 2025) (court "could not hold that the challenged testimony

violated the [c]onfrontation [c]lause without determining . . . the 'primary

purpose' for which [absent analyst's] statements were made"); People vs.

Peterson, Mich. Ct. App., No. 364313, slip op. at 7 (July 25, 2024) (given uncertainties

in record, testimonial nature of evidence was not properly before court).

The court cites two reasons for finding

the notes testimonial. First, it

emphasizes that Dunlap conducted her testing at the request of law

enforcement. Ante at . See

Melendez-Diaz, 557 U.S. at 317 . While

that may be so, it does not follow that every document generated during such

testing is testimonial. The record does

not show whether the notes themselves were created in response to a police

request or for some other purpose. As

the United States Court of Appeals for the Fourth Circuit recognized,

"[a]lthough some statements produced by analysts are testimonial because

they serve 'an evidentiary purpose,' others -- such as 'lab records' written

'to comply with laboratory accreditation requirements or to facilitate internal

review and quality control' or 'notes . . . written simply as reminders to

self' -- serve no evidentiary purpose and are not testimonial." Seward, 135 F.4th at 169, quoting Smith, 602

U.S. at 802 .

Second, the court infers a "formal

nature" to Dunlap's notes based solely on Labelle's testimony that each

page bore Dunlap's initials and the laboratory's identification number. Ante at

(Dunlap's notes appeared, based on LaBelle's description, "to have

had at least some level of formality . . . further confirming the testimonial

nature of the notes"). See Bryant,

562 U.S. at 366 . See also Bullcoming,

564 U.S. at 671 (Sotomayor, J., concurring in part) ("a statement's

formality or informality can shed light on whether a particular statement has a

primary purpose of use at trial").

But formality alone does not render a statement testimonial. See Bryant, supra ("Formality is not the

sole touchstone of our primary purpose inquiry . . ."). Documents may appear formal yet serve routine,

nonevidentiary purposes. See

Melendez-Diaz, 557 U.S. at 324 . And

here, without the notes themselves, we cannot assess whether they include other

critical markers of formality, such as "a sworn [or] a certified

declaration of fact." Williams, 567

U.S. at 111 (Thomas, J., concurring in the judgment). In short, without access to the notes or

testimony from their author, we cannot meaningfully evaluate either their

primary purpose or their formality.

The court's conclusion that the notes were

testimonial is speculative and risks conflating ordinary laboratory

documentation with testimonial statements prepared for use at trial. That approach risks unduly expanding the

scope of the confrontation clause and imposing constitutional barriers where

they are not justified, disregarding the practical realities of scientific

record-keeping. It also goes further

than the Supreme Court itself was willing to go in Smith, where the Court

expressly declined to decide whether the records at issue were testimonial,

stating that the question was "not now fit for [the Court's]

resolution." Smith, 602 U.S. at

801 . Again, the Court remanded the case

for further factual development, instructing the lower court to identify the

precise statements at issue and to "consider the range of recordkeeping

activities that lab analysts engage in."

Id. at 802 . Here, by contrast,

the court reaches a constitutional conclusion without knowing the content,

context, or purpose of the notes.

3.

Prejudice. "Before a Federal

constitutional error can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt" (alteration,

quotation, and citation omitted).

Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010). Central to this inquiry is "whether the

error had, or might have had, an effect on the fact finder and whether the

error contributed to or might have contributed to the findings of guilty"

(alterations and citation omitted). Id. Importantly, "[t]he inquiry is not

whether, in a trial that occurred without the error, a guilty verdict would

surely have been rendered, but whether the guilty verdict actually rendered in

this trial was surely unattributable to the error" (quotation and citation

omitted). Id. at 361 . The harmless error standard is "more

favorable to the defendant than the standards applicable to certain other

nonconstitutional errors," because "we presume prejudice when faced

with a constitutional violation."

Commonwealth v. Yat Fung Ng, 491 Mass. 247 , 256 n.13 (2023). It is the Commonwealth's burden to overcome

this presumption. Id.

In evaluating whether a constitutional

error was harmless beyond a reasonable doubt, courts consider several factors,

including the importance of the improperly admitted testimony to the

prosecution's case, its relation to the defense theory, whether the defense or

the prosecution introduced the issue, the degree to which the testimony was

cumulative, its frequency of reference, the presence or absence of

corroborating or contradictory evidence, the scope of cross-examination, the

availability and effect of curative instructions, and the over-all strength of

the Commonwealth's case. See Commonwealth

v. Ramsey, 466 Mass. 489, 494 (2013); Commonwealth v. DiBenedetto, 414 Mass.

37, 40 (1992), S.C., 427 Mass. 414 (1998).

Here, although Dunlap's notes were not

introduced in evidence and the full context of their creation remains unknown,

I proceed -- consistent with our case law and the court's approach -- on the

assumption that they may have contained testimonial material. Affording the defendant the benefit of the

doubt, if the notes were prepared primarily to establish or prove facts for use

at trial, they could qualify as testimonial under Bryant, 562 U.S. at 366 . As noted, because the notes were not marked

as exhibits and the circumstances surrounding their creation remain unexplored,

their precise nature cannot be definitively determined. Even so, because the confrontation clause

inquiry turns on whether Labelle relied on testimonial statements, I proceed on

the assumption -- without definitive evidence -- that the notes included

testimonial material.

The key question, then, is whether the

erroneous admission of LaBelle's testimony referencing those notes was harmless

beyond a reasonable doubt. On the one

hand, Labelle's ultimate opinion identifying the substance as Suboxone was

based on her independent review of the GC-MS data and was properly

admitted. See Nardi, 452 Mass. at 395

("The most important medical evidence from the Commonwealth's point of

view was Dr. McDonough's opinion as to the cause of death. That opinion was properly admitted in

evidence"). On the other hand,

Labelle's testimony concerning Dunlap's notes arguably "provided an

important factual basis that undergirded and supported [LaBelle's]

opinions." Commonwealth v. Durand,

457 Mass. 574, 587 (2010), S.C., 475 Mass. 657 (2016), cert. denied, 583 U.S.

896 (2017). While LaBelle testified that

the GC-MS data identified the presence of buprenorphine and naloxone, it was

her reference to Dunlap's notes that linked those findings to the specific item

seized from the defendant.

That link -- the bridge between the

machine-generated data and the physical evidence recovered from the defendant

-- was critical to the Commonwealth's case.

Based on LaBelle's testimony, Dunlap's notes included information

pertinent to the substance's testing, from receipt of the item through

screening and confirmatory testing. If

those notes were created for use in a future prosecution, and if Labelle's

testimony about them bridged the evidentiary gap between the analytical results

and the seized envelopes, then the confrontation clause violation went to the

heart of the prosecution's case. See

Tassone, 468 Mass. at 403–404 (confrontation violation not harmless where

inadmissible expert testimony "connected the defendant to the eyeglasses

found at the scene"). Without that

bridge, the jury lacked the necessary context to conclude that the GC-MS

results pertained to the envelopes found on the defendant.

Moreover, although defense counsel

cross-examined LaBelle, the opportunity for meaningful confrontation was

limited. She had no personal knowledge

of the collection, handling, or initial testing of the evidence and could not

speak to the integrity of those foundational processes. See Commonwealth v. Jones, 472 Mass. 707, 716

(2015) ("Where the only answer that the expert can give to questions

concerning the chain of custody . . . is 'I don't know,' a defendant has been

deprived of the opportunity for meaningful cross-examination").

The Commonwealth argues that the defendant

was not prejudiced because she did not dispute that the substance was Suboxone.

Indeed, defense counsel, during closing

argument, referred to the substance as Suboxone and stated there was "[n]o

dispute about that." But that

concession, which aligned with the defense theory that the defendant lacked

knowledge that the envelopes contained a controlled substance, did not relieve

the Commonwealth of its burden to prove each element of the offense beyond a

reasonable doubt. See Ramsey, 466 Mass.

at 495 . That burden included proving the

identity of the substance. See Vasquez,

456 Mass. at 361 .

This case closely parallels Vasquez, where

we held that the erroneous admission of drug certificates identifying a

controlled substance was not harmless -- despite defense counsel's concession

during closing argument as to the substance's identity. Id. at 354-355 , 366–367. As we explained, "[t]he Commonwealth's

burden of proving every element of its case cannot be transferred to the

defendant because of his counsel's choice of defense." Id. at 367-368 .

"The standard of harmlessness beyond

a reasonable doubt is a stringent one, for if 'loosely applied,' the concept of

harmless error 'can serve too readily as a bridge for a procession of mistakes

and injustices.'" Vasquez, 456

Mass. at 361 , quoting Commonwealth v. Sinnott, 399 Mass. 863, 872 (1987). Keeping this standard in mind, and given the

uncertainty surrounding the content and context of Dunlap's notes, the

Commonwealth has not shown beyond a reasonable doubt that the admission of

Labelle's testimony referencing those notes -- assuming they were testimonial

-- was harmless. I therefore

respectfully concur in the judgment.

footnotes

[1]

"Suboxone is the brand name of a medically based treatment product

containing buprenorphine and naloxone, prescribed for the treatment of opioid dependence." Care & Protection of Zeb, 489 Mass. 783 ,

784 n.2 (2022). Buprenorphine is a class

B controlled substance, but for purposes of this case, we refer to the controlled

substance as Suboxone in accordance with our prior case law. See, e.g., Commonwealth v. Rodriguez, 484

Mass. 1047 , 1047 (2020) (referring to Suboxone as class B substance).

[2] We

acknowledge the amicus briefs submitted by the New England Innocence Project

and the Innocence Project; and R. Michael Cassidy, Benjamin K. Golden, and

Elizabeth N. Mulvey.

[3] Because the

issue before us is the effect of Smith, 602 U.S. at 802-803 , on the question

whether the substitute expert's testimony violated the defendant's rights under

the confrontation clause, we need not repeat the facts as they were set forth

in Commonwealth v. Gordon, 103 Mass. App. Ct. 1112 (2023) (unpublished),

vacated and remanded, 145 S. Ct. 412 (2024).

The defendant raises additional issues unrelated to her right of

confrontation and has not identified how Smith affects the analysis of these

issues. We therefore do not consider

them. Instead, we focus on the facts and

procedural history pertinent to the constitutional question presented.

[4] See note 1,

supra.

[5] "Most

controlled substances are subjected first to a field test for presumptive

identification. This is followed by gas

chromatography-mass spectrometry (GC-MS), in which chromatography separates the

drug from any diluents or excipients, and then mass spectrometry is used to identify

the drug. This is the near universal

test for identifying unknown substances."

National Research

Council, Strengthening Forensic Science in the United States: A Path Forward 134-135 (2009), cited in

Commonwealth v. Fernandez, 458 Mass. 137 , 149 n.17 (2010).

[6] The record is

silent as to the reason for Dunlap's departure from the crime lab and provides

no insight into her availability at the time of trial. See Commonwealth v. Rosado, 480 Mass. 540 ,

548-549 & n.8 (2018), citing Mass. G. Evid. § 804(a) (2018) (describing

criteria for assessing whether declarant is unavailable as witness, such as

invocation of privilege or declarant's persistent refusal to testify despite

court order).

[7] Although

sixty-one strips of an alleged controlled substance were available, only one

was tested. The record does not explain

why another strip was not tested once the prosecutor determined to call a

substitute expert. See Bullcoming v. New

Mexico, 564 U.S. 647, 666 (2011) (noting retesting would have avoided

prosecution's need for testimonial hearsay prohibited by confrontation clause).

[8] The jury also

found the defendant guilty of possession of a class B controlled substance with

intent to distribute in violation of G. L. c. 94C, § 32A (c), but the charge

was dismissed as duplicative by agreement.

See Commonwealth v. Njuguna, 495 Mass. 770 , 776-777 (2025), citing Morey

v. Commonwealth, 108 Mass. 433, 434 (1871).

The defendant also pleaded guilty to conspiracy in violation of G. L. c.

94C, § 40, which was placed on file.

[9] We denied the

defendant's application for further appellate review. See 493 Mass. 1105 (2024).

[10] The Sixth

Amendment provides, in relevant part, that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him." The bedrock

principle applies to both Federal and State prosecutions. See Pointer v. Texas, 380 U.S. 400, 406

(1965).

The confrontation right is also protected

by art. 12 of the Massachusetts Declaration of Rights, which provides, in

relevant part, that a defendant "shall have a right . . . to meet the

witnesses against him face to face."

We need not address in this case whether art. 12 provides broader

protections than the Sixth Amendment because we conclude that the defendant's

Sixth Amendment right of confrontation was violated. Compare Commonwealth v. Nardi, 452 Mass. 379 ,

388 n.10 (2008), quoting Commonwealth v. DeOliveira, 447 Mass. 56 , 57 n.1

(2006) ("the protection provided by art. 12 is coextensive with the

guarantees of the Sixth Amendment"), with Commonwealth v. Tassone, 468

Mass. 391, 402 (2014) (stating, prior to Smith, "[r]egardless of whether

the Supreme Court ultimately interprets the confrontation clause to permit the

admission of [expert opinion testimony from an expert who had no affiliation

with the laboratory that conducted the testing, which] effectively den[ies] the

defendant any meaningful opportunity for cross-examination, its admission in

our courts is barred by the right of confrontation in our common law of

evidence").

[11] Chief

Justice John Marshall said of the confrontation right:

"I know of

no principle in the preservation of which all are more concerned. I know none, by undermining which, life,

liberty and property, might be more endangered.

It is therefore incumbent on courts to be watchful of every inroad on a

principle so truly important."

United States v.

Burr, 25 F. Cas. 187, 193 (C.C.D. Va. 1807) (No. 14,694).

[12] Cf. 3 W.

Blackstone, Commentaries *373 ("This open examination of witnesses . . .

is much more conducive to the clearing up of truth . . .").

[13] The Supreme

Court also noted that scientific evidence may be subject to manipulation or

mistake, Melendez-Diaz, 557 U.S. at 318 , and that "[c]onfrontation is

designed to weed out not only the fraudulent analyst, but the incompetent one

as well," id. at 319 (reviewing studies of exonerations based on

"discredited forensics" and "invalid forensic testimony"

[citation omitted]).

[14] In

Bullcoming, the Supreme Court "refused to accede to the idea that any old

analyst -- i.e., a substitute who had not taken part in the lab work -- would

do" to cure the confrontation clause's prohibition set forth in

Melendez-Diaz on the introduction of the absent analyst's testimonial

out-of-court statements. Smith, 602 U.S.

at 798 . Writing separately, Justice

Sotomayor emphasized the limits of the Supreme Court's holding in Bullcoming;

she observed that "this is not a case in which the person testifying is a

supervisor, reviewer, or someone else with a personal, albeit limited,

connection to the scientific test at issue." Bullcoming, 564 U.S. at 672-673 (Sotomayor, J.,

concurring in part) (while not "address[ing] what degree of involvement is

sufficient," noting that "[i]t would be a different case if, for

example, a supervisor who observed an analyst conducting a test testified about

the results or a report about such results").

[15] While the

State expert impliedly referred to the absent analyst's testing results in the

course of providing her own opinion, the absent analyst's report, setting forth

the analyst's results, was not itself introduced in evidence. Williams, 567 U.S. at 79 .

[16] The fifth

justice, Justice Thomas, disagreed with that the plurality's reasoning but

joined the plurality on the alternative ground that the analyst's report and

DNA profile results "lack[ed] the solemnity of an affidavit or

deposition" and thus were not testimonial.

Williams, 567 U.S. at 111 (Thomas, J., concurring in the judgment).

[17] Consistent

with the Supreme Court's formulation, we have concluded that an absent

analyst's out-of-court statements are testimonial where "a reasonable

[analyst] would anticipate that her findings would be available for use at

trial." Commonwealth v. Barbosa,

457 Mass. 773, 784 (2010), cert. denied, 563 U.S. 990 (2011). See Commonwealth v. Greineder, 464 Mass. 580 ,

594 n.15, cert. denied, 571 U.S. 865 (2013) (defining "testimonial"

as where "a reasonable person in [the nontestifying analyst's] position

would anticipate her findings and conclusions being used against the accused in

investigating and prosecuting a crime" [citation omitted]); Commonwealth

v. Avila, 454 Mass. 744 , 763 n.20 (2009), quoting Nardi, 452 Mass. at 394

(hearsay was testimonial because "a reasonable person in [the

nontestifying examiner's] position would anticipate his [findings and conclusions]

being used against the accused in investigating and prosecuting a crime").

[18] By statute,

the crime lab's sole function is the production of such evidence. In particular, G. L. c. 22C, § 39 (a),

provides in relevant part:

"The

department shall, free of charge, or the University of Massachusetts Medical

School shall . . . make a chemical analysis of any narcotic drug . . . or

chemical submitted to it by police authorities, . . . provided, however, that

neither the department nor the medical school shall conduct such analysis

unless it is satisfied that the analysis submitted to it is to be used in

connection with the enforcement of law" (emphasis added).

[19] Because

Dunlap's notes are not in the record, we necessarily rely on LaBelle's

testimony describing them. LaBelle's

testimony described the notes' contents as well as the context in which they

were made. Contrary to the concurrence's

admonition, post at , these details

suffice to conclude that Dunlap's statements, made at the behest of law

enforcement to prove that the strips contained a controlled substance, an

element of the charged offense, were testimonial.

[20] The

concurrence suggests that our conclusion that Dunlap's notes were testimonial

"risks conflating ordinary laboratory documentation with testimonial

statements prepared for use at trial."

Post at . The alarm is unwarranted. We conclude only that Dunlap's statements,

documenting the scientific steps she took to perform the chemical analysis she

was asked to conduct by law enforcement officials to prove an element of the

crime with which the defendant was charged, and which bore some indicia of

formality, were testimonial. Contrast

Commonwealth v. Zeininger, 459 Mass. 775 , 788-789 & n.18, cert. denied, 565

U.S. 967 (2011) (differentiating technician certifying breathalyzer machine

from chemist authoring certificates of drug analysis because technician has

"no particular prosecutorial use in mind," and concluding that

documentation for calibration of machine is not testimonial [citation

omitted]); Commonwealth v. Bloom, 2025 PA Super 143 (2025), citing Smith, 602

U.S. at 802 (toxicology report not testimonial where report ordered from

private laboratory to determine cause of death "was not drafted for the

primary purpose of being used in court," "there was nothing

indicating the blood samples were 'seized evidence,'" and report lacked

"procedural formalities").

[21] The

concurrence reads Smith to concern only the question whether when an expert's

opinion is based on an absent analyst's out-of-court statements, those

statements are hearsay. Post at .

This limited view fails to account for the Supreme Court's further

discussion, detailed supra, regarding the confrontation clause violation

attendant to a substitute expert's "independent" opinion based on an

absent analyst's testimonial hearsay and testing data. See Smith, 602 U.S. at 798-799 .

[22] The Fourth

Circuit continued, "The obvious implication -- indeed, the only way the testimony

makes sense -- is that the [substitute] expert was representing that the

non-testifying analyst who ran the underlying tests in fact followed the

procedures the [substitute] expert had just described." Seward, 135 F.4th at 168.

[23] Other courts

examining the permissibility of an independent expert opinion founded on an

absent analyst's testimonial hearsay have come to the same conclusion --

namely, that such opinion testimony violates the confrontation clause. See People vs. Soliz, Cal. Ct. App., No.

B333746 (Nov. 18, 2024) ("To the extent [the technical and administrative

reviewer] sought to offer an 'independent opinion' based on his review of [the

nontestifying analyst's] work, Smith explains the [c]onfrontation [c]lause can

still be implicated"); State vs. Miller, Minn. Ct. App., No. A24-0205

(Feb. 24, 2025) (confrontation clause violated by admission of toxicology

opinion of substitute expert who independently reviewed test results of absent

analysts); State v. Clark, 296 N.C. App. 718 , 724 (2024) (substitute expert's

independent opinion violated confrontation clause even though expert reviewed

nontestifying expert's report and testing results of chemical analysis); State

v. Hale, 2024-Ohio-5579, ¶¶ 60-73 (experts who relied on data generated by

nontestifying technicians and analysts "provided to them . . . in a series

of out-of-court statements" as basis for opinions "implicitly offered

those out-of-court statements into evidence," and because statements were

testimonial, defendant "had a constitutional right to be confronted with

those [nontestifying] witnesses, not merely the experts who generated the

ultimate conclusions"); State v. Hall-Haught, 4 Wash.3d 810, 824-825

(2025) (substitute expert, even if absent analyst's supervisor who reviewed

analyst's steps and signed toxicology report, could not testify, consistent

with Smith, to "independent opinion" in sole reliance on absent

analyst's factual statements and data from testing results). See also United States vs. Pascoe, U.S. Dist.

Ct., No. 3:22-cr-88-DJH (W.D. Ky. July 31, 2024) ("Expert testimony that

relies upon or repeats the findings of [testimonial hearsay] must . . . be

excluded absent in-court testimony and cross-examination of the [declarant] or

the requisite showings of unavailability and prior confrontation").

[24] The

concurrence instead relies on four other cases from intermediate courts of

appeal, three of which are unpublished and none of which squarely addresses the

holding in Smith regarding the confrontation clause violation that occurs when

a substitute expert's opinion is based on raw data and depends on` the absent

analyst's testimonial hearsay. In some

of those cases, the defendant (unlike here) waived the confrontation clause

violation. See, e.g., State vs. Shea,

Minn. Ct. App., No. A23-1523, slip. op. at 8 (Sept. 9, 2024) (addressing

question whether conviction was unfair given defendant's failure to object to

admission of absent analyst's reports, where "[h]ad [the defendant] objected

or moved to exclude that evidence, the [S]tate likely could have remedied any

[c]onfrontation [c]lause or hearsay concerns by having [the absent analyst]

testify"); Gourley v. State, 710 S.W.3d 368 , 375 (Tex. Ct. App. 2025). One case determined there was no confrontation

clause violation on the ground that in that case (unlike here) the absent

analyst's notes and report were not conveyed to the jury. See Gourley, supra at 378 & n.3. Other cases fail to comprehend that the

substitute expert's opinion in Smith was based on raw data and depended on the

absent analyst's notes and report.

Compare State vs. Kellum, N.M. Ct. App., No. A-1-CA-41306, slip op. at

5-6 (Apr. 23, 2025), and Gourley, supra, with Brief for Respondent at 1, Smith,

602 U.S. 779 (noting that one source of expert's opinion was "graphs

reflecting machine-generated raw data" from nontestifying analyst's GC-MS

testing), and Reply Brief for Petitioner at 16 n.*, Smith, supra ("[T]he

GC-MS graphs appended to [the nontestifying analyst's] notes are not statements

themselves. But [the analyst's]

notations in the graphs that identify the samples she tested and the remarks in

her notes describing what she did and observed are"). In Kellum, after misunderstanding the record

in Smith, the court also acknowledged that it was without authority to change

the State's highest court's precedent even if Smith now called it into

question. Kellum, supra at 8 n.1.

Finally, in Dunlap vs. State, Md. App.

Ct., No. 969, Sept. Term, 2023, slip op. at 17-18, 25 (Apr. 8, 2025), the

Appellate Court of Maryland ultimately determined that an absent technician's

report, stating that he sent the defendant's cell phone to a different

laboratory to determine the password, received it back from the laboratory, uploaded

the cell phone's data using software, and put the data in a particular

password-protected server location, effectively "was more or less a link

in the chain of custody," which the Supreme Court has noted goes to the

weight of the evidence. See Melendez-Diaz,

557 U.S. at 311 n.1. To the extent

Dunlap suggests that a technical reviewer's opinion based on raw data and

dependent on an absent analyst's testimonial hearsay that the analyst followed

proper protocols and procedures comports with the confrontation clause, we

decline to adopt its misreading of the scope of the Supreme Court's decision in

Smith. Compare Dunlap, supra at 23,

citing State v. Miller, 475 Md. 263, 290-293 (2021), with Smith, 602 U.S.

798 -799. See also Smith, supra at 819

(Alito, J., concurring in the judgment) (substitute expert "did not have

personal knowledge of any of [the] facts [stated in the absent analyst's

reports regarding her testing], and it is unclear what 'reliable' scientific

'methods' could lead him to intuit their truth from [the absent analyst's]

records").

[25] Contrary to

the concurrence's suggestion, we do not hold that an expert who reviews

testimonial hearsay, even cursorily, cannot testify to the expert's

interpretation of raw data. We conclude

only that, after Smith, a substitute expert's opinion that depends on the

testimonial hearsay of an absent analyst violates the confrontation clause;

thus, where an expert's opinion based in part on raw data is not independent of

the truth of the absent analyst's statements regarding the protocols and

procedures the analyst said she followed, the true witness against the accused

is the analyst insofar as the expert's opinion depends on the truth of the

analyst's testimonial hearsay.

[26] This case,

like Smith, involves one analyst who herself performed all the steps in the

chemical analysis and a substitute expert whose opinion depended upon the truth

of the absent analyst's testimonial hearsay; even LaBelle's opinion based on

the GC-MS output depended on Dunlap's testimonial hearsay as to the procedures

and protocols she followed. The present

case does not involve an expert who "builds on" the absent analyst's

work, a scenario that the Supreme Court did not further define. Smith, 602 U.S. at 798-799 . And this case does not present the practical

challenges that may arise where an expert relies on multiple analysts who

participate in testing or on multiple sources only some of which comprise

testimonial hearsay, for which the Supreme Court has not yet provided

additional guidance. See Williams, 567

U.S. at 86 (Breyer, J., concurring) (lamenting decision not to invite briefing

on issue). Nor does this case involve an

expert who relies on laboratory technicians to perform purely

"ministerial" tasks under the expert's direct supervision. See generally D.H. Kaye, D.E. Bernstein, A.G.

Ferguson, M. Wittlin, & J.L. Mnookin, The New Wigmore: A Treatise on Evidence § 5.5.2, at 297-299

(3d ed. 2021). We leave for another day

these other scenarios, including the question whether the absence of such

aforementioned technicians' live testimony goes to the weight (as opposed to

the admissibility) of the expert's opinion.

See Melendez-Diaz, 557 U.S. at 311 n.1 (acknowledging that not all

persons who have "laid hands on the evidence must be called," that

gaps in chain go to "weight" of evidence, and that those who do

testify must do so live).

[27] The database

printout does not itself present a confrontation clause problem because it is

not testimonial as any statements in the database from which the printout was

created were not given for purposes of creating testimony for use at trial

against the defendant. See discussion

supra.

In any event, as described in LaBelle's

testimony, the use of the database was only a preliminary step before Dunlap

conducted the confirmatory test central to the identification of the controlled

substance. Alone, as LaBelle

acknowledged when she described the need for a confirmatory test, it did not

provide a scientifically sound methodology for determining the substance on the

strip. See United States Department of

Justice, Drug Enforcement Administration, Scientific Working Group for the

Analysis of Seized Drugs (SWGDRUG) Recommendations, at 17-20 & n.4 (June

27, 2024) (placing pharmaceutical identifiers in lowest of three categories of

identification techniques, among those that "achieve a low level of

selectivity but provide general or class information," because of

"potential for counterfeits").

[28] The

concurrence states that the jury could rely on this isolated aspect of

LaBelle's testimony, thereby (according to the concurrence) avoiding the

confrontation clause violation altogether.

Post at . But, as discussed supra, the Commonwealth

bears the burden to prove its case without violating the confrontation

clause. In assessing whether the

Commonwealth has met that burden, we do not view the evidence in the light most

favorable to the Commonwealth. Instead,

the Commonwealth must show that LaBelle's opinion did not violate the

confrontation clause. See, e.g.,

Bullcoming, 564 U.S. at 666 . And, as the

Commonwealth concedes, LaBelle's opinion depended on Dunlap's notes; thus, even

her view of the raw data was not independent of Dunlap's testimonial hearsay as

to the procedures and protocols Dunlap claimed to have followed.

[29] The

concurrence misapprehends our holding, asserting that we conclude that a

qualified expert may not decipher for the jury what a graph of a GC-MS output

signifies. Here, LaBelle's opinion was

not based on raw data alone; her opinion as to the GC-MS output depended on the

truth of Dunlap's testimonial hearsay, as LaBelle herself testified when

expressly asked by the prosecutor whether her opinion was based on the raw data

alone, as the Commonwealth concedes on appeal, and as the concurrence

ultimately acknowledges in concluding that LaBelle's testimony was not harmless

beyond a reasonable doubt. See discussion

supra.

[30] See generally

H.M. McNair, J.M. Miller, & N.H. Snow, Basic Gas Chromatography 104 (3d ed.

2019) ("Errors that occur in any step can invalidate the best

chromatographic analysis, so attention must be paid to all steps. . . . With major advances in instrumentation and

data analysis in the past [forty] years, the major sources of error in [gas

chromatography]-based methods are usually sampling and sample preparation . .

.").

[31] Facts or

data are "independently admissible" if they "would potentially

be admissible through appropriate witnesses." See Commonwealth v. Markvart, 437 Mass. 331,

337-338 (2002). See also Nardi, 452

Mass. at 389 n.11 (contents of nontestifying expert's autopsy report were

permissible basis for testifying expert's opinion because statements in report

would be admissible if nontestifying expert testified).

[32] The

reasonableness of LaBelle's reliance on Dunlap's notes in forming her opinion

was supported by LaBelle's testimony that she relied on Dunlap's notes in conducting

a technical and administrative review of Dunlap's work, concluding that it

conformed with the crime lab's policies and procedures.

[33] The

Commonwealth mistakenly asserts that the defendant did not preserve his

objection to the constitutional violation.

As discussed supra, trial counsel objected at the close of LaBelle's

testimony and moved to strike the testimony on the ground that it violated the

defendant's right to confrontation. In

fact, contrary to the Commonwealth's assertion, the trial judge expressly noted

that her "rights are saved on that issue." Aside from its argument erroneously applying

the standard for unpreserved errors, the Commonwealth otherwise does not

contend that the error in admitting Dunlap's testimonial hearsay was harmless

beyond a reasonable doubt.

[34] A new trial

is the appropriate remedy where a conviction is set aside due to a procedural

error. See Commonwealth v. Crowder, 495

Mass. 552 , 559-560 (2025), petition for cert. filed, U.S. Supreme Ct., No.

24-7498 (June 25, 2025), citing Lockhart v. Nelson, 488 U.S. 33, 38

(1988). Because the right of

confrontation is "a procedural rather than a substantive guarantee,"

a violation of that right will accordingly result in a new trial. Crawford, 541 U.S. at 61 .

[35] While, as in

the present case, a gas chromatography–mass spectrometry test was performed in

Smith, 602 U.S. at 791 , the decision features no discussion of the extent to

which the expert relied on any data derived from that test in forming his

opinion. Moreover, even the petitioner

in Smith conceded that it would have been proper for the expert to

"testify generally that certain data he reviewed in the abstract reflected

the presence of illicit drugs without revealing [the underlying analyst's]

statements about what she did to generate those data." See Reply Brief for the Petitioner at 18,

Smith 602 U.S. 779 .

[36] Indeed, the

holding in Smith aligns with this court's jurisprudence. See, e.g., Greineder, 464 Mass. at 583-584

(nontestifying analyst's out-of-court statement, even when used as basis of

testifying expert's opinion, "is offered for its truth and, therefore, is

hearsay"); Commonwealth v. Nardi, 452 Mass. 379, 391-394 (2008). In Nardi, the court held that a pathologist

could testify as to his opinion about the cause of a victim's death, where the

opinion was based in part on his review of materials generated by a

nontestifying medical examiner, including an autopsy report, notes, diagrams,

photographs, tissue slides, and a toxicology report. Id. at 383, 388-390 . In so holding, the court relied on Department

of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986), where we held that an

expert is permitted to "base an opinion on facts or data not in evidence

if the facts or data are independently admissible and are a permissible basis

for an expert to consider in formulating an opinion." The pathologist could not, however, testify

on direct examination as to any findings or conclusions within the autopsy

report, which were testimonial hearsay and therefore inadmissible. Nardi, supra at 391-394 . That holding is harmonious with the Supreme

Court's subsequent conclusion that an absent analyst's statements conveyed in

support of a testifying expert's opinion constitute hearsay. See Smith, 602 U.S. at 783 .

[37] The court

asserts that none of these cases "squarely addresses the holding in

Smith." Ante at note 24. However, each case expressly acknowledges

Smith and explains why it does not apply.

See Gourley 710 S.W.3d at 378 n.3 (distinguishing Smith where expert

"formed his own conclusions" based on independent review of "raw

data" generated by underlying analyst); Shea, Minn. Ct. App., No.

A23-1523, slip op. at 5 ("unlike the expert's testimony in Smith, [here

the expert's] testimony was premised upon a machine-generated DNA

profile," which is not hearsay); Kellum, N.M. Ct. App., No. A-1-CA-41306,

slip op. at 7 ("To the extent that Smith changed the applicable

[c]onfrontation [c]lause analysis, it does not affect [the court's holding that

raw data produced by an underlying analyst is not testimonial] because, as we

have said, raw data was not relied on by the testifying expert in

Smith").

[38] The court

further asserts that these decisions fail to account for the fact that

"the substitute expert's opinion in Smith was based on raw data and

depended on the absent analyst's notes and report." Ante at note 24. The implication appears to be that any expert

opinion based on a combination of raw data and testimonial hearsay is per se

inadmissible under Smith. But again,

that is not what Smith holds. Smith

addresses the admissibility of the basis for an expert's opinion, not the

opinion itself.

Moreover, the court's assertion that the

Smith expert reviewed "raw data" rests solely on the respondent's

brief, which states only that one source of the expert's opinion was

"graphs reflecting machine-generated raw data." Brief for Respondent at 1, Smith, 602 U.S.

779 . It remains unclear, however, (1)

whether that data was first transcribed -- perhaps selectively or inaccurately

-- by the absent analyst into notes or a report, and, if so, (2) whether the

substitute expert reviewed the transcription rather than the machine-generated

data itself. Absent that distinction,

the court's reliance on the respondent's brief in Smith is unfounded; the

substitute expert's opinion may have been based on information subject to human

intervention. More fundamentally, Smith

says nothing about whether the presence of raw data affects the admissibility

of a substitute expert's testimony. The

Supreme Court's opinion cannot be read to support the court's inference.

[39] The court

dismisses Dunlap vs. State on the ground that the expert's testimony there

concerned chain of custody information.

Ante at note 24. The Appellate

Court of Maryland held in Dunlap that Smith did not abrogate Maryland precedent

permitting a technical reviewer's independent opinion to substitute for the

original analyst's. Dunlap, Md. App.

Ct., No. 969, slip op. at 23. That

holding does not turn on whether the testimony involved chain of custody

matters. Indeed, Dunlap relied on State

v. Miller, 475 Md. 263, 284 (2021), which concerned the analysis of

deoxyribonucleic acid evidence, not chain of custody issues.

[40] The court's

assumption is also problematic given the uncertainty over whether Dunlap's

notes even qualify as hearsay. If Dunlap

prepared the notes solely as a personal aid to refresh her memory in

preparation for testifying -- rather than to communicate information to others

-- they may lack communicative intent and thus fall outside the definition of

hearsay. See Mass. G. Evid. § 801(a)

(2025) ("statement" under § 801[a] requires communicative intent);

United States v. Seward, 135 F.4th 161 , 169 (4th Cir. 2025) (notes

"written simply as reminders to self" may be nontestimonial [citation

omitted]).