Commonwealth v. Almele (Lawyers Weekly No. 10-098-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11915 COMMONWEALTH vs. MARWAN M. ALMELE. July 12, 2016. Controlled Substances. Evidence, Expert opinion. Witness, Expert. Practice, Criminal, Objection, Motion in limine, Striking of testimony. A jury in the District Court convicted the defendant of possession of a class B controlled substance, in violation of G. L. c. 94C, § 34; and possession of class B and C controlled substances with intent to distribute, in violation of G. L. c. 94C, §§ 32A (a) and 32B (a), respectively. The Appeals Court affirmed the convictions, see Commonwealth v. Almele, 87 Mass. App. Ct. 218 (2015), and we allowed the defendant’s application for further appellate review. Prior to the start of the trial, the Commonwealth filed a motion in limine seeking to introduce the opinion testimony of a police officer, Lieutenant Dennis Ledo, as an expert witness. The defendant objected to allowing Ledo to testify on the basis that the “expert opinion” that Ledo would offer was within the jury’s common knowledge, and that any such testimony would be more prejudicial than probative. At the conclusion of the voir dire hearing on the motion, the judge ruled that he would allow Ledo to testify as an expert. The judge then noted “for the record” the defendant’s objection for “the reasons as stated [by the defendant] plus any other reasons” and further stated that he was “preserving” the defendant’s objection “even during the trial . . . so, we don’t get into that situation where the Appellate Court reviews . . . [under] a heightened standard because there was no objection.” At trial, the prosecutor initially asked Ledo, hypothetically and on the basis of his training and experience, what significance it would have to him if a person had in his or her possession a certain quantity of prescription drugs packaged in a specific way. The defendant objected. The judge noted the objection and then gave the jury a detailed explanation of expert testimony, its purpose, and how the jury might consider that testimony. The prosecutor then resumed questioning Ledo, and again asked for his opinion. Ledo responded that his “opinion was that the . . . drugs that were found on the [d]efendant were intended for distribution.” Although the defendant objected to the initial question from the prosecutor that led to this testimony, he did not move to strike Ledo’s […]
Commonwealth v. Almele (Lawyers Weekly No. 11-031-15)
COMMONWEALTH vs. MARWAN M. ALMELE. No. 13-P-1351. APPEALS COURT OF MASSACHUSETTS December 9, 2014, Argued March 27, 2015, Decided PRIOR-HISTORY: Bristol. Complaint received and sworn to in the New Bedford Division of the District Court Department on October 22, 2010. The case was tried before Christopher D. Welch, J. HEADNOTES-1 Controlled Substances. Joint Enterprise. Evidence, Joint enterprise, Expert opinion. Practice, Criminal, Objection, Motion in limine. Witness, Expert. COUNSEL: Patrick A. Michaud for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. JUDGES: Present: Cohen, Fecteau, & Massing, JJ. OPINION BY: FECTEAU OPINION Fecteau, J. The defendant appeals from his convictions, following a jury trial in the District Court, of unlawful possession of class B and C controlled substances with intent to distribute, in violation of G. L. c. 94C, §§ 32A(a) and 32B(a), respectively, and possession of a class B controlled substance, in violation of G. L. c. 94C, § 34.1 He contends that the judge erred in permitting statements of a purported coventurer to be admitted against him without sufficient evidence, independent of those statements, of the existence of such a joint venture or conspiracy of which he was a part. He further contends that his motion for a required finding of not guilty was denied in error as evidence of his involvement as a joint venturer was insufficient. He also complains that opinion testimony from a police officer was erroneously admitted in evidence and that the officer impermissibly offered an opinion on the defendant’s guilt. As we are unpersuaded by these contentions, we affirm the convictions. FOOTNOTES 1 The defendant was also acquitted of a charge of conspiracy to violate drug laws, G. L. c. 94C, § 40, after waiving his right to a separate trial. Background. From the evidence admitted during the Commonwealth’s case in chief, including statements of the defendant’s nephew, alleged by the Commonwealth as a coventurer of the defendant, the jury could have found the following facts.2 On October 21, 2010, Captain Paul Oliveira of the New Bedford police department drug unit began a drug investigation as a result of a call to the department’s anonymous tip line. He called the phone number that was provided through the tip, and spoke a number of times with one Ahmad, a person whose voice he recognized as someone who had provided information to him in an investigation a few years earlier. In speaking with Ahmad, Oliveira testified that he had heard that Ahmad was “trying to get rid of some Percocets,” and Oliveira indicated that he was interested in purchasing the pills. Ahmad agreed, but explained that the pills were not his but his uncle’s, who got thirty-milligram and ten-milligram pills by prescription, 180 of each per month, but had just twenty thirty-milligram pills remaining for sale, for “500 […]