Commonwealth v. Paniaqua

O’Connor, J.

(dissenting in part, with whom Nolan, J., joins). I, too, would affirm the defendant’s conviction of unlawfully carrying a firearm, and I agree that the guilty verdict with respect to the indictment charging unlawful posses *804 sion of ammunition should stand. I do not agree, however, that the evidence was sufficient to warrant the jury’s verdict of guilty on the reduced charge of unlawful possession of cocaine. The defendant is constitutionally entitled to an acquittal on that charge.

The trial took place in March, 1989, approximately two years after the events that the trial addressed. The evidence most favorable to the Commonwealth showed that on April 7, 1987, the defendant threw a tinfoil ball into a trash barrel in a kitchen at 166 Seaver Street in the Roxbury section of Boston, and Officer William E. Doogan retrieved it. The police also retrieved from the kitchen at 166 Seaver Street two other tinfoil packages. There was no evidence that the defendant had ever been in possession of either of those two packages. The contents of the tinfoil ball and the other two tinfoil packages were commingled and then they were analyzed by the Department of Public Health. The Commonwealth introduced in evidence a certificate, pursuant to G. L. c. Ill, .§ 13 (1990 ed.), stating that the combined contents of the tinfoil ball and the other tinfoil packages contained cocaine.

The evidence also included the following. Officer Doogan testified that, immediately after he picked the tinfoil ball out of the trash barrel on April 7, 1987, he opened the ball and “saw a white rock-like and powdery substance that [he] believed at the time [when he picked it up] to be cocaine.” Doogan did not testify about why he believed at that time that the substance was cocaine and, most importantly, he did not testify to any opinion that he may have held át the time of the trial as to what the substance was. Doogan did not testify as an expert, and indeed there was no evidence that would have qualified him as such. Surely, his testimony “in response to a question by the defense, that this was not the first arrest he had made where drugs were found,” referred to by the court, ante at 802, would not qualify him as an expert in drug recognition and identification.

Officer Frederick Stevens testified that “Officer Doogan went to the trash barrel and retrieved ... a large aluminum *805 ball, which [Doogan and Stevens] found later to contain a white substance which [they] believed to be cocaine at that time.” Stevens, too, did not testify about his reasons for believing in 1987 that the substance was cocaine, and he too did not express an opinion at trial that the substance was indeed cocaine. Like Doogan, Stevens did not testify as an expert, and there was no evidence that, either in April, 1987, or at the time of trial, he was an expert in drug recognition and identification. Certainly, Stevens’s testimony, apparently relied on by the court, ante at 802, that he “would not ‘testify about something that he was not certain about,’ ” says nothing about Stevens’s expertise. Furthermore, the fact that, at the time of the trial in 1989, “Stevens had been on hundreds of drug raids,” ante at 802, does not warrant an inference that, either in April, 1987, or even at the time of trial, Stevens was an expert in drug recognition and identification.

So, it may well be that “[t]he jurors could credit the officers’ beliefs that the white powdery substance was cocaine,” as the court states, ante at 802, if all that is meant by that is that the jury could have found that in April, 1987, two years before the trial, two police officers without drug expertise “believed” for unstated reasons that the tinfoil ball attributable to the defendant contained cocaine. If the court means, however, that the police officers’ testimony warranted the jury in finding that the tinfoil ball in fact contained cocaine, the court is clearly wrong. The officers’ beliefs in 1987, at a time as to which the record contains no evidence of their training and experience in drug recognition and identification, are completely without probative value. See Commonwealth v. Santaliz, ante 238, 241-242 (1992); Commonwealth v. Dawson, 399 Mass. 465, 466-467 (1987). As the Chief Justice states in P.J. Liacos, Massachusetts Evidence 409 (5th ed. 1981), “[t]he concept of relevancy, or inherent probative worth, is as much practical as legal. To determine the inherent probative worth of evidence of a fact (B) offered to establish another fact (A), it must be shown that from the viewpoint of logic, experience, or common sense that proof of *806 B tends to prove A.” From “the viewpoint of logic, experience, or common sense,” to use the Chief Justice’s words, the fact that, at a time when two police officers who, for all that appears, were untrained and inexperienced with respect to drugs, thought that a particular substance was cocaine, is irrelevant.

But, says the court, “[t]he defendant did not challenge the expertise of the officers at trial,” ante at 802, and “ ‘[a]bsent objection, the hearsay evidence was properly admitted, and the jurors were entitled to give it such probative effect as they deemed appropriate.’ ” Ante at 803, quoting Abraham v. Woburn, 383 Mass. 724 , 726 n.l (1981). Of course, it is not difficult to understand why the defendant did not challenge the officers’ expertise at trial. The officers did not purport to testify as experts. They did not offer opinions at trial that the substance in question was cocaine. In any event, neither Abraham v. Woburn, supra, nor Commonwealth v. Keevan, 400 Mass. 557, 562 (1987), cited by the court, both of which involve probative, but unobjected-to, hearsay evidence, stands for the proposition that a jury are free to give unobjected-to nonprobative (irrelevant) evidence whatever effect the jury may deem appropriate. Indeed, the court said in Keevan, supra, quoting Mahoney v. Harley Private Hosp., Inc., 279 Mass. 96, 100 (1932), “Hearsay, once admitted, may be weighed with the other evidence, and given any evidentiary value which it may possess” (emphasis added). The testimony concerning the police officers’ beliefs, uninformed by training or experience, was without probative effect when it was offered, and it did not acquire probative effect by having been admitted without objection. 1 See Agricultural Nat’l Bank v. Schwartz, 325 Mass. 443, 448 (1950) (“Even if some of this evidence may have been admitted without objec *807 tion, it does not thereby become entitled to any probative effect”).

In affirming the trial judge’s denial of the defendant’s motion for a required finding of not guilty on the cocaine indictment, the court appears to rely not only on the nonprobative evidence of the officers’ beliefs two years before the trial, but also on the certificate introduced by the Commonwealth pursuant to G. L. c. Ill, § 13. The court notes that that certificate would warrant the jury in finding that “at least one, if not all three, of the foil packets contained powder which was determined to be cocaine.” Ante at 801. Of course, it is true that the jury reasonably could have concluded that at least one of the three tinfoil packages retrieved from 166 Seaver Street contained cocaine, but it is equally true that they could not rationally have determined from the certificate that “all three” packages, prior to their having been commingled, contained cocaine, nor could they have rationally determined that the one package proved to have been in the defendant’s possession contained cocaine. Because the contents of the three packages were commingled before analysis, a fact not disputed by the Commonwealth, but virtually ignored by the court, the certificate contributes nothing to the Commonwealth’s case.

Brief comment on the “extensive evidence of the defendant’s consciousness of guilt,” ante at 803, is appropriate. The court recognizes that “[ejvidence of consciousness of guilt alone cannot support a conviction. . . .” Ante 803 at n.7. Here, with respect to the charge of unlawful possession of cocaine, the evidence of consciousness of guilt (of some crime, at least) stands alone. Therefore, it cannot support a conviction.

“[T]o sustain the denial of a directed verdict, it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). There was not *808 enough evidence in this case to satisfy any rational trier of fact that the defendant possessed cocaine. Accordingly, the defendant is entitled to a finding of not guilty of that offense as a matter of constitutional due process. Jackson v. Virginia, 443 U.S. 307, 314-316 (1979).

The court relies not only on Abraham v. Woburn, 383 Mass. 724 (1981), and Commonwealth v. Keevan, 400 Mass. 557 (1987), but also on People v. Bailey, 1 Cal. App. 4th 459 (1991). In that case, the court held: “A trier of fact reasonably could rely on the testimony of a trained narcotics officer received without objection that the substance possessed was rock cocaine . . .” (emphasis added). Id. at 465 .