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.
2 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
3 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).
4 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
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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.
2 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
3 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).
4 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
5 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
6 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
7 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),
8 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.
9 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.
10 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.