Commonwealth v. Grady (Lawyers Weekly No. 10-097-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11968 COMMONWEALTH vs. JUSTIN GRADY. Middlesex. March 7, 2016. – July 12, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Evidence, Expert opinion. Witness, Expert. Practice, Criminal, Objection, Motion in limine, Striking of testimony. “School Zone” Statute. Statute, Amendment, Retroactive application. Indictments found and returned in the Superior Court Department on May 6, 2010. The cases were tried before Elizabeth M. Fahey, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Michele R. Moretti for the defendant. KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth DUFFLY, J. A jury in the Superior Court convicted the defendant of operation of a motor vehicle while under the influence of liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a) (1); possession with intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A (c); and possession with intent to distribute a class B substance in a school zone, in violation of G. L. c. 94C, § 32J. The Appeals Court affirmed the convictions in an unpublished memorandum and order pursuant to its rule 1:28, see Commonwealth v. Grady, 87 Mass. App. Ct. 1119 (2015), and we allowed the defendant’s application for further appellate review. Prior to the start of the trial, the Commonwealth and the defendant each filed a motion in limine regarding whether a substitute analyst, Kenneth Gagnon, would be allowed to testify (the analyst who tested the substance at issue having left the testing laboratory and moved out of State). Concluding that Gagnon could testify, the trial judge allowed the Commonwealth’s motion and denied the defendant’s motion. In response to the defendant’s request that the judge “please note [his] objection,” the judge responded “sure.” Subsequently, at trial, Gagnon twice testified to the weight of the substance, which, the parties both now recognize, was improper. A substitute analyst may testify to his or her own opinion, but not, on direct examination, to the original analyst’s test results. See Commonwealth v. Greineder, 464 Mass. 580, 586-587, cert. denied, 134 S. Ct. 166 (2013). See also Commonwealth v. Tassone, 468 Mass. 391, 399 (2014). The defendant, however, did not object to or move to strike the testimony. The question with which we are primarily […]