Commonwealth v. Elana Gordon.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-825

COMMONWEALTH

vs.

ELANA GORDON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted after a Superior Court jury trial of delivering a

class B controlled substance to a prisoner (G. L. c. 268, § 28),

the defendant appeals. 1 She argues that the trial judge erred by

admitting audio recordings of two jail calls between the

defendant, who is an attorney, and Jassel Castillo, an inmate at

the Plymouth County house of correction, and by permitting a

substitute drug analyst to opine that a substance contained

buprenorphine, a class B substance. The defendant further

1 A count for possession of a class B substance with intent to
distribute (G. L. c. 94C, § 32A (a)) was dismissed as
duplicative after trial. A count for conspiracy to violate the
drug laws (G. L. c. 94C, § 40) was placed on file with the
defendant's consent after a change of plea, and the defendant
has not raised any issues related to that conviction on appeal.
See Mass. R. Crim. P. 28 (e), 453 Mass. 1501 (2009).
Accordingly, the defendant's appeal from that conviction is not
before us and we do not address it. See Commonwealth v. Brown,
456 Mass. 708, 709 n.1 (2010).
contends that a substantial risk of a miscarriage of justice

arose when correction officers testified that attorneys were

prohibited from leaving paperwork with inmates, and when a State

police trooper testified that the defendant's cell phone "had

been reset." She also claims that her trial counsel was

ineffective when he argued in closing that the defendant showed

"terrible judgment" by delivering envelopes to an inmate, but

did not know that they contained drugs. We affirm.

Background. On May 3, 2018, Castillo made two phone calls

from the Plymouth County house of correction to his sister, who

added the defendant to each call, creating three-way calls.

During those calls, Castillo instructed the defendant to visit

Noah Bell, who was also an inmate at the house of correction, on

the following day. Castillo told the defendant, "Don't call me

down tomorrow." The defendant then asked Castillo, "What do I

have this paperwork for?" and Castillo replied, "Just give it to

him. He'll give it to me." Castillo also told the defendant,

"Just come take care of this thing tomorrow."

The next day, May 4, 2018, the defendant went to the house

of correction and met with Bell. During their meeting, she gave

two manila envelopes to Bell. Afterwards, officers searched

Bell and found in the envelopes sixty-one strips of Suboxone,

which contains buprenorphine, a class B substance.

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Police arrested the defendant and seized her cell phone.

Attempting to search the cell phone, a State police trooper

powered it on. The phone showed a welcome screen, indicating

that it had been reset.

The defense theory was that the defendant did not know that

the envelopes contained Suboxone. The defendant testified that

she "had no idea" there was anything other than paperwork in the

envelopes which she gave to Bell. Defense counsel argued in

both opening and closing that the defendant "had no knowledge"

that she was bringing drugs into the jail.

Discussion. Jail calls. The defendant argues that the

judge erred in admitting the audio recordings of the two jail

calls between the defendant, Castillo, and Castillo's sister.

The defendant claims that the prejudicial impact of the jail

calls substantially outweighed their probative value because in

them she used obscenities.

The defendant moved in limine to exclude the jail calls,

asserting that they were improper "character evidence." 2 After

the prosecutor explained that the jail calls showed the

defendant's knowledge that she was delivering drugs to Bell, the

2 The defendant also argued that the jail calls contained
hearsay. At the prosecutor's request, the judge instructed the
jury to disregard any conversation between Castillo and his
sister in Spanish. The defendant does not raise the hearsay
issue on appeal, and so we do not consider it.

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judge ruled to admit the jail calls. We conclude that the judge

did not abuse his discretion in determining that the jail calls

were probative "to prove a plan to bring drugs" into the house

of correction.

A trial judge has "broad discretion" to determine whether

"the risk of prejudice substantially outweighs the probative

value of the evidence." Commonwealth v. Fan, 490 Mass. 433, 444

(2022). See Mass. G. Evid. § 403 (2023). A trial judge's

evidentiary ruling is reversed only if the judge made "a clear

error of judgment" which "falls outside the range of reasonable

alternatives" (citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

The judge heard extensive argument from both parties

regarding the admissibility of the jail calls, considered the

representations of both parties as to the calls' contents, and

properly instructed the jury to consider the statements of

persons other than the defendant on the calls only as to "what

knowledge [the defendant] would have and to give context to any

statements that she made." In those circumstances, we discern

no error in the judge's implicit determination that the

probative value of the jail calls outweighed any prejudice to

the defendant, and no abuse of discretion in their admission.

See Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 306-307

(2023).

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The defendant argues that the judge did not conduct the

balancing test to weigh the prejudicial effect of the jail calls

evidence against their probative value because, as a result of

technical difficulties, he did not listen to the jail calls

before they were played for the jury. The judge relied on the

prosecutor's offer of proof about the contents of the jail

calls, which was accurate. Based on that offer of proof, the

judge could exercise his discretion to admit the jail calls,

which were not the sort of highly inflammatory evidence that a

judge might be required to review first. Contrast Commonwealth

v. Carey, 463 Mass. 378, 390-391 (2012) (judge should have

viewed "highly inflammatory" video of strangulation before

admitting it).

For the first time on appeal, the defendant argues that

because the jail calls included her "swearing repeatedly and

acting unprofessional," their prejudicial impact outweighed

their probative value. Because the defendant did not object on

those grounds or request that swear words be redacted, we doubt

that she preserved that claim for appellate review. We need not

resolve that doubt, because even if the defendant had objected

on those grounds at trial, the judge would not have been

required to rule that any resulting prejudice outweighed the

probative value of the calls. See Commonwealth v. Rosa, 468

Mass. 231, 241-242 (2014) (jail call in which defendant used

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racial epithet as term of familiarity not unduly prejudicial);

Commonwealth v. Mejia, 88 Mass. App. Ct. 227, 238 (2015) (jail

call in which defendant used offensive language not unduly

prejudicial).

Substitute drug analyst. The defendant argues that her

confrontation rights were violated when a substitute drug

analyst opined that the substance in the envelopes that the

defendant gave to Bell was Suboxone, a combination of

buprenorphine and naloxone.

A substitute drug analyst may testify about the

identification of a substance provided that she "reviewed the

nontestifying analyst's work, . . . conducted an independent

evaluation of the data[,] . . . [and] then 'expressed her own

opinion, and did not merely act as a conduit for the opinions of

others.'" Commonwealth v. Greineder, 464 Mass. 580, 595 (2013),

quoting Commonwealth v. Greineder, 458 Mass. 207, 236 (2010).

The substitute drug analyst in this case properly

"described the analytic process that [the nontestifying

analyst] . . . would have followed, and [her] own opinions that

she had formed independently and directly from the case review

and analysis she herself had performed." Commonwealth v.

Chappell, 473 Mass. 191, 202 (2015) (testimony of DNA analyst's

supervisor admissible). See Commonwealth v. Gonzalez, 93 Mass.

App. Ct. 6, 13 (2018) (testimony of substitute chemist

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admissible). The defendant cross-examined the substitute drug

analyst regarding the basis on which she formed her opinion, her

reliance on data generated by the nontestifying analyst, and the

fact that she did not personally test the evidence. We discern

no error or violation of the defendant's confrontation rights.

The defendant also argues that the substitute drug analyst

improperly testified that buprenorphine is a class B controlled

substance. Since the defendant did not object to this testimony

at trial, we review to determine whether any error created a

substantial risk of a miscarriage of justice. See Commonwealth

v. Gomes, 459 Mass. 194, 204 (2011). Based on her education and

experience, the substitute drug analyst testified that

buprenorphine is a class B controlled substance. No substantial

risk of a miscarriage of justice arose.

Testimony of correction officers about jail policies. The

defendant argues that two correction officers improperly

testified that rules prohibited attorneys from leaving paperwork

with inmates and prohibited inmates from making three-way calls.

The defendant did not object to this testimony at trial, so we

review its admission to determine whether any error created a

substantial risk of a miscarriage of justice. See Commonwealth

v. Grady, 474 Mass. 715, 721-722 (2016).

The defendant contends that the correction officers'

testimony that attorneys were forbidden from leaving paperwork

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with inmates was inaccurate. For the first time on appeal, the

defendant points to a Massachusetts Department of Correction

regulation providing that attorneys are "permitted to leave

legal papers or legal documents with inmates." 103 Code Mass.

Regs. § 486.09(2) (2015). 3

Because the defendant did not raise this claim in the trial

court, on the record before us we cannot ascertain whether the

Plymouth County house of correction had a policy that differed

from the regulation, or whether the correction officers were

uninformed or mistaken about the regulation. Where the

defendant's theory at trial was that she did not know that the

envelopes she gave to Bell contained Suboxone, it would not have

helped her defense to inform the jury of a regulation that gave

attorneys more leeway than other visitors to transmit documents

to inmates. The testimony did not create a substantial risk of

a miscarriage of justice. Contrast Commonwealth v. Ware, 482

Mass. 717, 725-726, 729-730 (2019) (vacating convictions because

testimony was "blatantly false" and central to Commonwealth's

case).

Testimony that the defendant's cell phone had been "reset."

The defendant argues that testimony about the examination of her

cell phone was unduly prejudicial because it permitted the jury

3 The defendant quotes from that regulation, but miscites it as
103 Code Mass. Regs. § 486.08(2) (2015).

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to infer that she had destroyed evidence. State Police

Lieutenant Frank Driscoll testified that when he attempted to

extract data from the defendant's cell phone, "As I powered on

the phone, it had been reset . . . much like as if you get a

cell phone out of a box from [the] Apple store, it had that main

welcome screen, so it had been reset or never set up." The

defendant did not object, and so we consider the issue to

determine if it created a substantial risk of a miscarriage of

justice.

The defendant maintains that she preserved this issue for

appellate review because at a pretrial hearing on her motion to

suppress her cell phone, defense counsel commented that it could

not be fairly inferred that the defendant had remotely "wiped"

the cell phone. 4 Where the issue before the motion judge at that

hearing was whether police unlawfully seized and searched the

defendant's cell phone, defense counsel's comment did not

preserve for appellate review the defendant's present claim that

the testimony that the phone "had been reset" was unduly

prejudicial. See Grady, 474 Mass. at 719 ("An objection at the

motion in limine stage will preserve a defendant's appellate

4 The motion to suppress was heard by a different judge, who
denied the motion, concluding after a hearing that the defendant
had consented to the search of her cell phone.

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rights only if what is objectionable at trial was specifically

the subject of the motion in limine").

No substantial risk of a miscarriage of justice arose from

the trooper's testimony that the display of a "welcome" screen

on the defendant's phone evidenced that the phone had either

"been reset or never set up," and that phones can be "remotely

reset." 5 This testimony had a "rational tendency" to prove the

defendant's knowledge that the envelopes she delivered contained

drugs, as evidence of consciousness of guilt. Commonwealth v.

Yat Fung Ng, 491 Mass. 247, 264 (2023), quoting Carey, 463 Mass.

at 387.

Defense counsel's closing argument. For the first time on

appeal, the defendant argues that trial counsel was ineffective

in his closing argument. Because the defendant did not raise

this claim in a motion for new trial, the record before us does

not contain any information about trial counsel's strategy in

making his closing argument, or the judge's assessment of its

likely impact on the jury.

"The occasions when a court can resolve an ineffective

assistance claim on direct appeal are exceptional."

Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006). Courts

5 Contrary to the assertions in the defendant's brief, at no
point did the trooper testify that the phone had been "wiped" or
that the defendant was the person who reset it.

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can consider such claims only when "the factual basis of the

claim appears indisputably on the trial record." Commonwealth

v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). The burden

rests with the defendant to show that counsel's behavior fell

"measurably below that which might be expected from an ordinary

fallible lawyer" and "likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Defense counsel argued that the defendant showed "terrible

judgment . . . . You're not supposed to give anything to an

inmate. You don't do it. . . . It's wrong. It's stupid. . . .

I've been practicing law for [thirty-one] years, and the lack of

judgment in this case by my client is breathtaking,

astounding. . . . I can't understand it." Defense counsel may

well have argued that the defendant had used poor judgment in

delivering the envelopes to Bell at Castillo's request because,

by making that concession, the jury might be more likely to

believe the defendant's claim that she did not know that the

envelopes contained drugs. On this record, we cannot conclude

that the argument fell below the Saferian standard. "[I]t is

far too easy to examine

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a transcript and point to ways to 'do it better'" (citations

omitted). Commonwealth v. Moseley, 483 Mass. 295, 308 (2019).

Judgment affirmed.

By the Court (Green, C.J.,
Milkey & Grant, JJ. 6),

Clerk

Entered: November 8, 2023.

6 The panelists are listed in order of seniority.

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