Commonwealth v. Sakunthear Dany.

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

23-P-143

COMMONWEALTH

vs.

SAKUNTHEAR DANY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of three counts of distribution of fentanyl, in

violation of G. L. c. 94C, § 32 (a); and one count of possession

of cocaine, in violation of G. L. c. 94C, § 32A (a). On appeal,

the defendant argues that the judge erred by admitting text

messages allegedly exchanged between him and an undercover

police officer and audio-visual recordings of three controlled

drug purchases in evidence. He also argues that the judge erred

by permitting the Commonwealth's expert to testify about the

general characteristics of a drug user. We affirm.

Background. In May 2021, the Massachusetts State police

and the Lynn police department commenced an investigation into

the illegal distribution of fentanyl in Lynn. As a part of the

investigation, on May 12, 2021, a State police trooper working
undercover sent a text message to a cell phone ending in 0629

and arranged to purchase $100 worth of fentanyl. In the text

message exchange that followed, the trooper was initially

directed to Flint Street, then redirected to Ray Street. The

defendant arrived at Ray Street shortly after the trooper. He

entered the front seat of the trooper's car and sold him a bag

of fentanyl for $100. A few days later, on May 18, 2021, the

trooper sent another text message to the same cell phone number

and arranged to purchase $300 worth of fentanyl. The trooper

was directed to Flint Street by a return text message. The

defendant was seen leaving a building on Flint Street and

getting into the trooper's car. In the car, the defendant gave

the trooper three "clear plastic twists" of fentanyl in exchange

for $300.

On May 24, 2021, the trooper texted the same cell phone

number ending in 0629 to arrange to purchase $300 worth of

fentanyl. The cell phone user directed the trooper to Light

Street and, at 3:27 P.M., texted that he was five minutes away.

At 3:30 P.M., the police saw a Honda Accord approach that

location and park. The defendant exited the rear seat of the

Honda Accord and entered the trooper's car. The trooper gave

him the money, which consisted of premarked bills, and the

defendant gave the trooper one clear plastic bag containing

fentanyl.

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After the defendant exited the trooper's car, other police

officers placed him under arrest. The officers seized from the

defendant the $300 the trooper had paid and a plastic bag of

cocaine. The driver of the Honda Accord that the defendant had

arrived in attempted to drive away, but officers stopped the

vehicle and ordered the driver and a passenger out. After the

passenger exited the vehicle, she returned to it and "reached in

the back and retrieved a cell phone," which the officers seized.

The officers then placed a call to the cell phone number ending

in 0629, and the phone taken from the backseat rang and

displayed the trooper's first name and the phone number

associated with the cell phone the trooper used to arrange the

controlled buys.

All three drug transactions between the defendant and the

trooper were recorded on what the trooper described as "a

recording device on a[n] undercover cell phone." The device

captured both audio and video recordings.

Discussion. 1. Admission of the text messages. The

defendant filed a motion in limine to exclude the text messages,

arguing that there was insufficient evidence to establish that

he was the person who authored the messages sent from the 0629

number. The judge denied the motion. At trial, the defendant

objected when the text messages were entered into evidence.

Accordingly, we review to determine whether the trial judge

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abused his discretion in admitting the text messages and, if so,

whether the defendant was prejudiced thereby. Commonwealth v.

Woods, 90 Mass. App. Ct. 271, 275 (2016), citing Commonwealth v.

Rosario, 460 Mass. 181, 193 (2011).

Before admitting an electronic communication in evidence, a

judge must determine whether sufficient evidence exists "for a

reasonable jury to find by a preponderance of the evidence that

the defendant authored" the communication. Commonwealth v.

Purdy, 459 Mass. 442, 447 (2011).1 In making this determination,

a judge "may look to 'confirming circumstances' that would allow

a reasonable jury to conclude that this evidence is what its

proponent claims it to be" (citation omitted). Purdy, supra at

449. See Mass. G. Evid. § 901(b)(11) (2023).

Here, there were sufficient confirming circumstances to

allow a reasonable jury to find by a preponderance of the

evidence that the defendant was the author of the text messages.

Those circumstances include the numerous text messages between

the trooper and the person associated with the 0629 phone number

in negotiating price, quantity, time, and location in advance of

On appeal, the defendant incorrectly asserts that the
1

beyond a reasonable doubt standard applies. See Commonwealth v.
McMann, 97 Mass. App. Ct. 558, 559-560 (2020) (distinguishing
"the lower preponderance of the evidence standard that applies
to authentication" from "higher burden of proving beyond a
reasonable doubt that the defendant was the person who wrote or
sent the message to the victim" to prove element of offense for
violating abuse prevention order).

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three separate drug purchases; the defendant's arrival at Ray

Street with the agreed-on quantity of fentanyl soon after a text

message from the same phone that directed the trooper there for

the first drug purchase on May 12, 2021; the defendant's arrival

at Light Street after a telephone call from the same phone

directed the trooper there for the third drug purchase and

minutes after a text message from the phone stated he was five

minutes away on May 24, 2021; and the recovery of the 0629 cell

phone from the backseat of the Honda Accord, where the defendant

exited from before getting into the trooper's car that same day.

Because these facts constituted sufficient confirming

circumstances to authenticate the text messages as having been

sent by the defendant, the judge did not abuse his discretion in

admitting the text messages as evidence. See Commonwealth v.

Meola, 95 Mass. App. Ct. 303, 310-315 (2019).

2. The testimony of the drug distribution expert. The

defendant argues that the judge improperly allowed the

prosecutor to elicit character evidence and negative profile

testimony from a police sergeant who did not participate in the

controlled buys, but rather testified as a drug distribution

expert. Although the Commonwealth argues the issue is not

preserved because the defendant objected on grounds other than

those argued on appeal, we disagree. The defendant moved to

exclude the sergeant's testimony in a motion in limine prior to

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trial, and then objected when the sergeant testified at trial.

Those objections are consistent with the arguments the defendant

has made here. Accordingly, we consider whether the judge's

decision to admit the testimony involved "an abuse of discretion

or other error of law," Commonwealth v. Grissett, 66 Mass. App.

Ct. 454, 457 (2006), and, if so, whether that error was

prejudicial, see Commonwealth v. Cruz, 445 Mass. 589, 591

(2005).

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). However, while expert

opinion testimony is often grounded in the facts of the case at

hand, care must be taken such that the expert does "not directly

express his views on the defendant's guilt." Commonwealth v.

Tanner, 45 Mass. App. Ct. 576, 579 (1998). "[A]n opinion by a

qualified witness on the subject of drug possession with intent

to distribute, which speaks to the point that specific conduct,

or the presence of certain facts or circumstances, as grounded

in the trial evidence, would be 'consistent with' a drug

transaction, has been deemed proper." Grissett, 66 Mass. App.

Ct. at 458, quoting Commonwealth v. Lopez, 55 Mass. App. Ct.

741, 746 (2002). On the other hand, testimony that seeks to

demonstrate that a defendant matched the profile of a type of

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criminal is inadmissible because it is irrelevant and unfairly

prejudicial. See Commonwealth v. Day, 409 Mass. 719, 722-723

(1991). Similarly, negative profiling evidence, which purports

to demonstrate that because a "defendant [does] not match the

physical characteristics of a drug addict, he must be a drug

dealer[,]" is also inadmissible. Commonwealth v. Horne, 476

Mass. 222, 227 (2017).

Here, the defendant argues that it was error to allow the

police sergeant to testify that the average dose of fentanyl by

a typical user is between five milligrams and an eighth of a

gram; that to ingest fentanyl, a typical user uses a straw to

snort it, or a spoon, hypodermic needle, syringe and "something

to tie off the arm" to inject it; that users typically ingest

methamphetamine by smoking, snorting, or taking it in pill form;

and that methamphetamine can be produced as a crystallized-

looking substance or "pressed into pills to look like a

pharmaceutical." The defendant further argues that it was error

to allow a hypothetical question that mirrored certain facts at

issue in the defendant's case.

The judge did not abuse his discretion or commit

prejudicial error in allowing this testimony. The sergeant's

testimony about the average dose and tools used for fentanyl was

not inadmissible profile testimony because it did not describe

the physical characteristics of an individual, compare the

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defendant to stereotypes, or match the defendant to a particular

profile, but instead focused on facts that are relevant to the

crime of trafficking. Even if the testimony about

methamphetamine was admitted in error, it was not prejudicial

because the defendant was acquitted of the charge of possession

with intent to distribute a class B substance (methamphetamine).

Finally, the judge sustained the defendant's objection to the

hypothetical question. In any event, the question would have

been proper because it was "based on evidence already admitted

in trial" and did not "require the witness to comment on the

guilt or innocence of the defendant." Commonwealth v. Dancy, 75

Mass. App. Ct. 175, 184 (2009). The judge also sustained

defense counsel's objections to several other questions that

came closer to eliciting views about the defendant's guilt.

Accordingly, the sergeant's testimony was admissible, and we

discern no prejudicial error in the judge's decisions.

3. The admission of the audio-visual recordings. The

Commonwealth filed a motion in limine to admit the audio-visual

recordings of the three drug purchases by the undercover

trooper. The defendant filed a motion in limine to exclude

these recordings. The judge allowed the Commonwealth's motion,

and the recordings were admitted in evidence.

While this appeal was pending, this court decided

Commonwealth v. Du, 103 Mass. App. Ct. 469, 469-482 (2023),

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which concluded that an undercover police officer's

surreptitious audio-visual recording of drug purchases violated

the wiretap statute, G. L. c. 272, § 99, and required that the

recordings be suppressed. That decision is now on further

appellate review before the Supreme Judicial Court. Here, the

defendant filed a motion for leave to file a supplemental brief

to challenge the admission of the audio-visual recordings in

this case under Du, supra at 469-470, which was allowed.

The wiretap statute generally proscribes "[t]he secret

transmission or recording of oral communications without the

consent of all parties." Commonwealth v. Blood, 400 Mass. 61,

66 (1987). "Generally such recordings are not admissible in

criminal trials for the Commonwealth." Commonwealth v.

Gonzalez, 426 Mass. 313, 315 (1997). Here, the Commonwealth

concedes that, under Du, 103 Mass. App. Ct. at 480-481, the

defendant "would have been entitled to [the recordings']

exclusion" had he moved to exclude their admission under the

wiretap statute. However, because the defendant did not cite

the wiretap statute as a ground for excluding the recording, but

rather objected to their admission on the grounds of hearsay,

unfair prejudice, and cumulative evidence, the Commonwealth

claims that the substantial risk of a miscarriage of justice

standard applies, and that standard is not met here. We agree.

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Where a defendant objected to evidence on specific grounds

at trial, and raises separate grounds for the objection on

appeal, we review to determine whether the admission of the

evidence created a substantial risk of a miscarriage of justice.

See Commonwealth v. Colon, 49 Mass. App. Ct. 289, 291 (2000).

Under that standard, we "consider the strength of the

Commonwealth's case against the defendant (without consideration

of any evidence erroneously admitted), the nature of the error,

whether the error is 'sufficiently significant in the context of

the trial to make plausible an inference that the [jury's]

result might have been otherwise but for the error,' and whether

it can be inferred 'from the record that counsel's failure to

object was not simply a reasonable tactical decision'" (citation

omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Central to this analysis is whether there is serious doubt that

the defendant's guilt has been fairly adjudicated. See

Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

We have no such doubt here. The Commonwealth's case was

strong, and the audio-visual recordings of the controlled buys

were not necessary to prove its case. The State trooper

testified about the three different transactions in which he

purchased fentanyl from the defendant. Text messages documented

the negotiations between the trooper and the defendant as to

price, quantity, time, and location for the controlled buys.

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Another officer testified about his personal surveillance of the

transactions. Chemical analysis indicated that the substances

purchased by the trooper were fentanyl. Therefore, we perceive

no substantial risk of a miscarriage of justice stemming from

the admission of the audio-visual recordings into evidence.

Judgments affirmed.

By the Court (Vuono,
Massing & Toone, JJ.2),

Assistant Clerk

Entered: April 11, 2024.

2 The panelists are listed in order of seniority.

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