Commonwealth v. Almele

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revision and are superseded by the advance sheets and bound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

13-P-1351 Appeals Court

COMMONWEALTH vs. MARWAN M. ALMELE.

No. 13-P-1351.

Bristol. December 9, 2014. - March 27, 2015.

Present: Cohen, Fecteau, & Massing, JJ.

Controlled Substances. Joint Enterprise. Evidence, Joint
enterprise, Expert opinion. Practice, Criminal, Objection,
Motion in limine. Witness, Expert.

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.

Patrick A. Michaud for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.

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,
2

1
in violation of G. L. c. 94C, § 34. 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.

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

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.
2
Before the jury were allowed to hear the content of any of
the police conversations with the coventurer, the judge required
the Commonwealth to introduce independent evidence of the joint
venture. Following the judge's preliminary ruling, and a
limiting instruction to the jury, the prosecutor was permitted
to backtrack and fill in the chronology of events with the
statements in question.
3

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 bucks, thirty bucks a pill." He continued

that his uncle "likes selling them in 100, 100-pack," and would

give a much better deal if Oliveira bought in that quantity.

Ahmad explained that his uncle had "just sold 100, his last 100

of the, ah, of the tens," for $400, or four dollars per pill,

and if he [Oliveira] wanted to buy 100 pills next time, Ahmad

said, he could get him a better deal than the thirty dollars per

pill he was currently offering.

They discussed arrangements for a purchase, including that

Oliveira would have to pick him up and bring him to his uncle's

house, as Ahmad had no other way of getting there, and because

his uncle was babysitting and could not get to Ahmad's house.

The arrangement also included the location for picking him up,
4

that the $500 be shown up front, and that Ahmad would then

direct Oliveira to his uncle's house, from which his uncle would

emerge and do the deal outside so that Oliveira would neither

have to give the money to Ahmad nor have to go inside the house

himself. Because Oliveira was fearful that Ahmad would

recognize him, he arranged with Detective Candido Trinidad,

another member of the narcotics unit, to act in his stead,

having explained to him the arrangements he had made with Ahmad.

At the time Trinidad approached the location to pick up

Ahmad, Oliveira, who was surveilling him, was on the phone with

Ahmad, and could see Ahmad walking down the street "watching,"

while talking on the phone with him. Trinidad picked up Ahmad,

who sat in the front passenger seat, and they drove to 480

Cottage Street, Ahmad's uncle's house. Along the way, they

spoke about the possibility of Trinidad's purchasing more pills

in the future from Ahmad's uncle, at a discounted rate. Ahmad

also kept asking Trinidad if he was a police officer, but

Trinidad assured him that he was not.

As they neared the house and stopped, and after Ahmad

presumably made a cellular telephone call to his uncle, who did

not pick up, Ahmad said that he "would go in and get him and

then come back out." When Ahmad went inside the house at 480

Cottage Street, Trinidad called Oliveira and told him Ahmad was

going to get the "third party," since Ahmad having to get out of
5

the car had not been discussed previously. Minutes later, Ahmad

came out of the house, got back in the front passenger seat of

Trinidad's car, and told him that his uncle would "be right

out." After another minute or two, the defendant came out of

the house, and Ahmad said, "That's my uncle right there." The

defendant walked to the passenger side of the car, and "he

leaned over, he looked in, and he put his hand out." Trinidad,

holding the money in his left hand to make it visible to the

defendant, shook the defendant's proffered hand with his right

hand, as the defendant "stayed leaning over, leaning into the

car." At this point, Oliveira gave the order to other

detectives to move in and seize the defendant.

The defendant was searched and found to have twenty

Percocet tablets in a small Ziploc bag in his sweatshirt pocket,

another three thirty-milligram Percocet tablets loose in a

sweatshirt pocket, thirty Klonopin pills and two Suboxone

tablets in his right front coin pocket, and $416 in cash. In

response to the defendant's proffered explanation that he had

prescriptions, and his offering to show the prescription bottle

for the Percocets, police retrieved the bottle from inside the

house, but it was empty; the prescription label indicated it had

been filled with a month's supply of 180 thirty-milligram pills

six days earlier. The defendant failed to provide an

explanation for the absence of the rest of the pills.
6

Lieutenant Dennis Ledo, testifying as a nonpercipient

expert witness, explained various methods of drug investigation,

including "controlled" and "undercover" drug buys. He testified

to typical methods of street dealings in illegal drugs,

including prescription drugs. Ledo's explanation included the

use of subordinate dealers, termed "runners," who brokered

deals, met with potential buyers on the seller's behalf, and

placed orders with the seller on the buyer's behalf, often for a

share of either the cash or the drugs. Ledo explained that in

the greater New Bedford area, prescription drugs would be

packaged in clear plastic bags, and Percocets would sell for

"[r]oughly a dollar [per] milligram." He also explained to the

jury the different forms that oxycodone took (Percocet,

Oxycontin), that people both swallow and snort it, and that

other prescription drugs like Xanax and Klonopin were also

"bought and sold on the street in New Bedford."

Noting for the jury that Ledo had not been involved in the

case other than to give opinion testimony based on reading "the

[investigative] report regarding" it, the prosecutor asked,

"Now, if you could describe for the jury if an individual is

arrested with, um -- and, I believe it was, ah, plastic baggies

of two, ah, Suboxone tabs, thirty Klonopin, as well as twenty

Percocets, along with $416 on his person, what significance

would that have for you?" Defense counsel objected, and the
7

judge noted the objection and delivered a two-page jury

instruction explaining that Ledo was going to be allowed to

"render an opinion based on facts in evidence," but the jury

were under no compulsion to accept that opinion or to value him

more highly as a witness simply because he was allowed to give

opinion testimony, and that it was up to them to determine

whether the asserted facts underlying his opinion "have been

proven to begin with." Following this lengthy instruction, the

prosecutor asked Ledo whether he was "able to form an opinion

after reading the . . . report"; he said he had. The

prosecutor asked him what the basis of his opinion was; he

replied, "The basis was . . . my training and experience, based

on the facts that, ah, I read in the, ah, in the investigative

report." The prosecutor then asked him, "And, ah, what was your

opinion after reading this report?" He replied, "My opinion was

that the, ah, drugs that were found on the [d]efendant were

intended for distribution." Defense counsel made no objection

to the form of this answer. Ledo then went on to explain in

detail which facts in the report led him to this conclusion,

based on his experience with narcotics cases generally.

The defense. Given the verdict, the jury obviously

discredited the defendant's evidence, consisting of testimony

from his former neighbor, Dennis Cavaleri, and the defendant's

wife, both of whom offered an explanation for his possession of
8

the Suboxone and Klonopin pills.3 Also testifying was his former

tenant Michael Stuart, as well as the defendant. Stuart

testified that, on October 21, it appeared that the defendant

was preparing to take a trip to Boston, as Stuart saw the

defendant taking pills from two bottles and putting them into

plastic bags. Stuart also testified that he saw the defendant

walk over to the car in which Trinidad and Ahmad were sitting

and saw him arrested within seconds as he turned to leave.

Finally, in addition to corroborating the information from

the prior defense witnesses, the defendant testified that Ahmad

called him that day, and later came over to his house and stated4

that a man in the car outside had a gun to his head and he asked

the defendant to come outside to look at the man, which he did,

saying hello to the unknown man. Shortly thereafter, he was

arrested. The defendant explained that his prescription pill

bottle was completely empty because he kept the remaining pills

3
Cavaleri testified that the defendant had given him a ride
earlier in the day to a store, and that Cavaleri had
accidentally left "[t]wo Suboxone tablets," which had been
prescribed to him, in the defendant's car, which the defendant
agreed to hold for him until he could pick them up later. The
defendant's wife testified that her prescription for forty-five
Klonopin pills had just been refilled and picked up by the
defendant. In preparation for a trip to Boston, the defendant
had counted out and bagged forty-five Klonopin pills and
"h[e]ld[] onto them" for her, and did the same with his own
medicine.
4
Ahmad's hearsay statements, as related by the defendant,
were admitted only for consideration of the defendant's state of
mind upon hearing the statements.
9

in a different place, and the cash on his person derived from a

$500 rent payment that Stuart's girlfriend had just given him.

Discussion. A. Coventurer statements. The defendant

claims that the judge erred in his preliminary finding that

there was sufficient evidence, independent of the statements of

his nephew, that he and Ahmad were engaged in a joint criminal

enterprise to permit the jury to consider Ahmad's statements

against him. Relatedly, he also contends that the judge denied

his motion for a required finding of not guilty in error, as

evidence of a joint venture was insufficient to submit the case

to the jury even when the statements of Ahmad are considered.

See Mass. G. Evid. § 801(d)(2)(E) (2014).

The judge properly considered and ruled, on a preliminary

basis, whether to admit the statements of Ahmad. As the Supreme

Judicial Court has explained, a "judge may allow the admission

of such statements, but only after a preliminary determination,

based on a preponderance of admissible evidence other than the

out-of-court statements themselves, that a criminal joint

venture existed between the declarant and the defendant, and

that the statement was made in furtherance of the venture."

Commonwealth v. Bright, 463 Mass. 421, 426 (2012). "Such a

preliminary determination permits a coventurer's out-of-court

statements to come before a jury but does not suffice to permit

the jury to consider the statements as bearing on the
10

defendant's guilt. Rather, the jury must first make their own

independent determination, again based on admissible evidence

other than the statements themselves, on 'the same questions'

that the judge must pass on." Id. at 426-427, quoting from

Commonwealth v. Borans, 379 Mass. 117, 145 n.26 (1979). See

Commonwealth v. Braley, 449 Mass. 316, 319-320 (2007).

Here, there was evidence independent of the content of

Ahmad's statements.5 Therefore, on the facts presented, the

judge properly exercised his discretion to permit the jury to

consider Ahmad's statements as made during the course of, and in

furtherance of, the joint venture; similarly, the jury were

warranted in determining the existence of the venture, of which

the defendant was part.6

B. Drug expert testimony. 1. Preservation of issue. We

disagree with the defendant's assertion that he properly

preserved his claim that the Commonwealth's drug expert

erroneously intruded on the jury's function by offering his

5
See discussion supra.
6
We also consider the Commonwealth's evidence of a joint
venture, taken in a light most favorable to the Commonwealth, to
have been sufficient to submit the case to the jury. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). We
take Ahmad's statements into account, notwithstanding the
defendant's argument concerning their admissibility. See
Commonwealth v. Bright, supra. We also find the defendant's
contention that the judge improperly failed to "suppress" the
coventurer statements to be nothing more than a recast of his
argument that the admission of the evidence was in error, and
thus, it is likewise, meritless.
11

opinion of the defendant's guilt. We acknowledge that the

judge, at the conclusion of the voir dire hearing concerning the

Commonwealth's motion in limine, "preserved" the defendant's

general objection to Ledo's testimony and excused further need

for objection during trial.7 Nonetheless, we consider this claim

of error not to have been properly preserved, since the

questions posed to the witness were not objectionable. Instead,

the error, if any, was the language used by the witness to

answer one question. In such a circumstance, the defendant was

obligated to object or move to strike the answer, which was not

done. See Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010)

("Defense counsel successfully objected to the statement that

contained the first allegedly accusatory statement, but he did

not move to strike the statement. This matter is not

preserved"). See also Commonwealth v. Martin, 48 Mass. App. Ct.

391, 393 (1999); Commonwealth v. Rosado, 59 Mass. App. Ct. 913,

914 (2003). Consequently, we review the defendant's claim to

determine whether a substantial risk of a miscarriage of justice

was created. Before we address the merits of this issue,

7
The defendant's contention during the hearing on the
Commonwealth's motion in limine was primarily that the opinions
intended to be offered by the Commonwealth's expert,
particularly on the methods of street dealing and packaging of
prescription drugs and the use of runners, was within the common
knowledge and experience of the jury.
12

however, we must express a note of caution about the practice of

"saving rights."

Although we recognize that a judge may "save" or "preserve

rights," which could excuse, in some circumstances, the need for

objection contemporaneous with the actual proffer of evidence,

see Commonwealth v. Aviles, 461 Mass. 60, 66 (2011), we

discourage the practice. While the intended purpose of a motion

in limine is worthwhile, its purpose is "to prevent irrelevant,

inadmissible or prejudicial matters from being admitted in

evidence." See Boston v. Board of Educ., 392 Mass. 788, 796

(1984), quoting from Commonwealth v. Hood, 389 Mass. 581, 594

(1983). A motion in limine is not an adequate substitute for a

properly placed objection. See Commonwealth v. Whelton, 428

Mass. 24, 25-26 (1998). By the judge saving rights, and

excusing the need for a contemporaneous objection, the proponent

of evidence challenged on appeal is deprived of an opportunity

during trial to rephrase the question in light of an objection.

Moreover, by requiring an objection at the time the evidence is

actually offered, the judge is given an opportunity to

reconsider his earlier ruling to determine its continued

correctness in the context of a question actually posed and the

answer given. As stated in Commonwealth v. Jones, 464 Mass. 16,

18 (2012), "[w]ithout an objection at trial, which gives the

judge an opportunity to reconsider the issue in context, any
13

harm resulting from a ruling in limine is purely speculative.

See Luce v. United States, 469 U.S. 38, 41-42 (1984) ('The

ruling is subject to change when the case unfolds . . . .

Indeed even if nothing unexpected happens at trial, the . . .

judge is free, in the exercise of sound judicial discretion, to

alter a previous in limine ruling')."8

2. The merits. The defendant correctly does not take

issue here with the qualifications of Ledo to give opinion

testimony on the illegal street trade of controlled substances.

Rather, he complains, first, that opinions expressed by the

officer concerning, for example, typical street drug traffic,

the packaging of drugs, and the use of runners as middlemen were

unnecessary, because they were within the common knowledge of

jurors. In addition, the defendant contends that the opinions

were invalid since they were based in part upon unreliable

evidence from Ahmad. Primarily, though, he contends that the

officer's opinion that "the drugs . . . found on the defendant

were intended for distribution," and that the $416 found on him

were "proceeds from the sale of drugs," invaded the province of

8
To the extent that the failure of trial counsel to move to
strike this answer sounds in ineffectiveness, an issue that was
held determinative in the case of Commonwealth v. Sepheus, 468
Mass. 160, 171-172 (2014), we note that, unlike the case here,
in Sepheus the expert's opinion was so critical on the element
of intent to distribute that, without it, allowance of a motion
for a required finding was held to have been necessary.
14

the jury because the officer commented on the guilt of the

defendant, the ultimate issue to be decided by the jury.

It is well established that "trial judges have broad

discretion to allow the use of narcotics investigators as

experts in drug cases." Commonwealth v. Miranda, 441 Mass. 783,

793 (2004), citing Commonwealth v. Johnson, 413 Mass. 598, 604

(1992). "The judge's decision to allow this type of evidence

'will be reversed only where the admission constitutes an abuse

of discretion or error of law.' Commonwealth v. Johnson, 410

Mass. 199, 202 (1991)." Commonwealth v. Little, 453 Mass. 766,

768-769 (2009). As the court in Little further explained,

"[o]therwise qualified expert testimony is admissible if, 'in

the judge's discretion, the subject [of such testimony] is not

within the common knowledge or common experience' of the trier

of fact, and the testimony will assist the trier of fact in

determining a fact in issue or in understanding the evidence."

Id. at 768, quoting from Commonwealth v. Miranda, supra at 792-

793. "That rule, however, is not rigid; and even in cases where

the subject matter may be within the knowledge or common

experience of the trier of fact, expert testimony will be

admissible if, in the judge's discretion, it may be of

assistance." Ibid., quoting from Miranda, supra. See P.J.
15

Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 7.6.1

(7th ed. 1999). See generally Mass. G. Evid. § 702 (2008-2009).9

Here, the closer question is whether the conclusory

opinions of Ledo, to the effect that the drugs found in the

possession of the defendant were being held for distribution,

improperly invaded the province of the jury. Generally,

"[o]pinion evidence elicited from . . . a qualified expert

properly informs the jury of the significance of evidence

generally, and does not state an opinion as to the ultimate

issue of intent, which must be resolved by the jury (or judge as

a fact finder)." Commonwealth v. Grissett, 66 Mass. App. Ct.

454, 457 (2006). "Opinion testimony may 'touch' on an ultimate

issue in the case . . . if couched appropriately, but such

testimony can never directly speak to, or express a point of

view, on the issue of guilt or innocence." Id. at 457-458. See

Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998).

"Where a specified intent is an element of the crime, a

witness's opinion as to what the defendant intended is improper.

9
With respect to the witness's generalized opinions about
the typical methods of street drug operations, including the
packaging and value of prescription drugs in illicit sales and
use of runners, we see no error or abuse of discretion, as
support for such opinion testimony can be seen in numerous
decisions, several of which are cited supra. Nor do we agree
with the defendant's unsupported characterization of Ahmad as an
"unreliable" basis for the officer to rely, in forming his
opinions; moreover, the Ledo's opinions were primarily based on
the testimony of the lead and undercover officers, the drugs
found on the defendant, and other facts in evidence.
16

Standing alone, such evidence cannot sustain a conviction."

Commonwealth v. Santiago, 41 Mass. App. Ct. 916, 917 (1996).

See Commonwealth v. Woods, 419 Mass. 366, 375 & n.13 (1995)

(improper testimony from officers that, "as a matter of their

expert opinion, . . . a drug transaction had taken place").

The drug experts at issue in Woods and Tanner were

percipient witnesses to the drug transactions at issue; in

addition to having described what they observed, they also

concluded that the defendant had committed a particular offense,

based on their observations and expertise. Contrary to the

situation in Woods, supra, and Tanner, supra, the witness here

was not percipient to the events in question, and thus, concerns

about a percipient witness also testifying as an expert witness

are not implicated. Compare Tanner, supra at 579, 582 (noting

that "[i]t is easy for the line between specific observations

and expert generalizations to become blurred," and "[t]he

testimony of a combined expert/percipient witness has unique

persuasive value").

Here, Ledo began his testimony with a series of opinions,

properly expressed, that explained in general terms typical

methods of drug dealers and the packaging of prescription drugs

and their value. Drawing his attention to the case at hand, he

was asked and agreed that he had read the police report for this

case, upon which he relied to form the basis of the opinions
17

about which the defendant takes primary issue. He was then

properly asked, hypothetically, if a person having in his

possession certain quantities of prescription drugs packaged

separately had significance to him, based on his training and

experience. Such a question was not improper. "Questions

grounded in previously admitted evidence may be posed to an

expert witness calling for an opinion within the expert's field

of expertise, even if the witness's reply thereby touches on the

ultimate issue of the case." Tanner, 45 Mass. App. Ct. at 579.

See Grissett, 66 Mass. App. Ct. at 457, quoting from

Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) ("[S]uch

testimony may be admitted only if it is 'limited to an opinion

that the hypothetical facts were consistent with possession of

[subject drugs] with the intent to distribute'").

Immediately following this question was a lengthy special

instruction, given to the jury in detail by the judge concerning

their use and consideration of opinion testimony that placed the

testimony in proper context.10 After this special instruction,

the prosecution resumed questioning Ledo, who then responded to

the earlier question posed by the prosecutor asking the witness,

10
Among instructions given to the jury at this point in the
trial, the judge told them that Ledo was going to "render an
opinion based upon facts in evidence" and that "you have to
determine whether those facts have been proven to begin with,
and, ah, if you find those facts have been proven, then you can,
accept, reject, or what, do whatever you want with the opinion."
18

in effect, to provide his opinion concerning when an individual

is arrested with certain baggies of the substances in question.

Ledo responded that, based on the report, "the drugs that were

found on the defendant were intended for distribution." There

was no motion to strike the answer as improper. While the

answer was not in the approved hypothetical and "consistent

with" form, and was improper in isolation, we view it as having

been built upon information already admitted in evidence. See

Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 182-183, 185-186

(2009) (court held that, while close, admission of officer's

testimony was not error when he replied to hypothetical question

that "it would lead me to believe that there may have been a

drug transaction," because he was a nonpercipient witness and

his response was based on evidence that had been admitted).

Therefore, "based on the compelling evidence properly admitted,

and the judge's limiting instructions, we conclude, with fair

assurance, that the jury's judgment was not substantially swayed

by the error." Commonwealth v. Canty, 466 Mass. 535, 545

(2013).

Even if we were to conclude that the opinion as expressed

would have, upon objection or motion, been struck in the form

given, we are satisfied that no substantial risk of a

miscarriage of justice resulted in this case.

Judgments affirmed.