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13-P-229                                              Appeals Court

                 COMMONWEALTH   vs.   DOLORES G. PAINE.


                              No. 13-P-229.

           Essex.      February 4, 2014. - October 2, 2014.

                 Present:   Cohen, Brown, & Rubin, JJ.


Controlled Substances. Evidence, Expert opinion, Certificate of
     drug analysis. Witness, Expert.



     Indictments found and returned in the Superior Court
Department on February 4, 2009.

     The cases were tried before Garry V. Inge, J.


     Kathleen S. Lucey for the defendant.
     Catherine P. Sullivan, Assistant District Attorney, for the
Commonwealth.


     COHEN, J.      After a jury trial in the Superior Court, the

defendant was convicted of two counts of possession of a class E

substance, in violation of G. L. c. 94C, § 34.1      The charges

arose from the seizure by police of three tablets found in a


     1
       The defendant also was convicted of trafficking in
cocaine. She does not challenge that conviction on appeal.
                                                                    2


container in the defendant's purse.    On appeal, the defendant

argues that the evidence was insufficient to establish that the

tablets contained cyclobenzaprine and quetiapine, as alleged in

the indictments.   Because we agree that there was insufficient

proof of the composition of the tablets, we reverse.

    1.    Background.   Viewed in the light most favorable to the

Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979), the relevant evidence may be summarized as follows.

On October 31, 2008, at about 3:00 A.M., a State police trooper

observed a pickup truck parked outside the designated parking

area of a rest area on Route 495 in Haverhill.    The trooper

approached in his cruiser and shined a spotlight into the cab of

the truck.   Upon seeing the trooper, the driver (later

identified as the defendant) and her two passengers began moving

around.   The trooper approached on foot, shined his flashlight

into the truck, and noticed what appeared to be a crack pipe on

the lap of one of the passengers.    The trooper ordered the

occupants out of the truck and, after finding a ball of what

appeared to be cocaine, placed all three individuals under

arrest.

    When the trooper returned to the State police barracks, he

inventoried the contents of the defendant's purse and discovered

a pill bottle with a prescription label bearing the defendant's

name and describing the contents as Oxycontin.    Inside the pill
                                                                   3


bottle were an orange pill, two or three white pills,2 and two

yellow pills.   The trooper secured the bottle and the pills and

placed them, along with other drug items seized from the

vehicle, in the drug locker at the barracks.   They later were

submitted for analysis to the State police crime laboratory in

Sudbury.

     At trial, a laboratory chemist, Jessica Brown, appeared as

an expert witness for the Commonwealth.   In her testimony, she

described the laboratory protocols for analyzing tablets, as

opposed to powdered drugs, as follows:

     "For tablets, it actually depends on what type of tablet as
     far as the testing that we do. We have a program resource
     that is called Micromedex and it is a database for the
     imprints and color, size, shape and what that type of
     tablet is for, in essence, all of the manufactured
     prescription tablets that are out there. So the first step
     in our tablet protocol is to reference that database to see
     what the imprints indicate the tablet is. If that tablet
     is deemed a prescription tablet but not classified in the
     Massachusetts General Laws, then we are, by our protocols,
     allowed to report that tablet based on its markings and
     appearance. For example, the imprint, say the letter "M"
     or the color yellow and also the shape, if it's round.
     Based on all of those, if they are consistent with the
     reported imprint or markings, appearance of the
     manufacturer, then we can call it that item. For tablets
     that are classified higher in the General Laws [than the
     allegedly class E tablets at issue here], we actually
     perform testing on those types of tablets."3

     2
       The trooper testified that two white pills were seized;
the corresponding drug certificate refers to "three white round
tablets."
     3
       The record does not disclose why the laboratory protocols
allowed class E tablets to be identified by sight, while higher
classes of tablets were required to undergo chemical testing.
                                                                    4



     Brown indexed the tablets seized from the defendant using

the Micromedex resource and determined that the yellow tablets

"contain[ed] cyclobenzaprine based on the manufacturer's

information" and that the white tablets had "imprints and color,

size, [and] shape [that] were consistent with that of

quetiapine[,] which is more commonly known as Seroquel."4   Brown

then generated drug certificates for each of the two sets of

tablets.   The certificates, which were introduced in evidence


In March, 2014, after the oral argument in this case, the
Commonwealth submitted a letter calling our attention to the
newly issued report by the Massachusetts Inspector General,
entitled "Investigation of the Drug Laboratory at the William A.
Hinton State Laboratory Institute 2002-2012" (report).
Commendably, the Commonwealth pointed out a portion of the
report criticizing the practice of identifying class E
substances by means of a visual inspection of the sample's
appearance and labeling. The report, which can be found at
http://www.mass.gov/ig/publications/reports-and-
recommendations/2014/investigation-of-the-drug-laboratory-at-
the-william-a-hinton-state-laboratory-institute-2002-2012.pdf
[http://perma.cc/CFJ6-B5ZD], states at page 37, note 80, that
"[a]ccording to SWGDRUG recommendations, identification of an
unknown substance based solely on pharmaceutical identifiers
does not satisfy minimum standards for forensic identification."
SWGDRUG stands for the "Scientific Working Group for the
Analysis of Seized Drugs," which was founded under a different
name in 1977, by the United States Drug Enforcement
Administration and the Office of National Drug Control Policy to
develop accepted minimum standards of educational and
professional development, quality assurance, and drug
identification methods for forensic drug analysis practitioners.
See report, supra at 27.
     4
       We may infer from the record that the single other pill
seized from the defendant contained oxycodone, for which the
defendant had a prescription. The defendant was charged with
possession of oxycodone, but a nolle prosequi entered as to that
charge on the first day of trial.
                                                                       5


state, as to each set of tablets, that they are "consistent in

markings and appearance" with "a Class E Controlled Substance,"

respectively, quetiapine and cyclobenzaprine.

    2.   Discussion.      "In a case involving a narcotics offense,

the Commonwealth must prove beyond a reasonable doubt that the

substance at issue '"is a particular drug" because such proof is

an element of the crime charged.'"      Commonwealth v. MacDonald,

459 Mass. 148, 153 (2011), quoting from Commonwealth v. Vasquez,

456 Mass. 350, 361 (2010).      The Commonwealth cannot meet this

burden without establishing that the substance is, in fact, the

drug alleged, as distinct from a different or counterfeit drug.

See Commonwealth v. Vasquez, supra.      "Proof that a substance is

a particular drug need not be made by chemical analysis and may

be made by circumstantial evidence."      Commonwealth v. Dawson,

399 Mass. 465, 467 (1987).      However, "it would be a rare case in

which a witness's statement that a particular substance looked

like a controlled substance would alone be sufficient to support

a conviction."   Ibid.5


    5
       But see Commonwealth v. MacDonald, 459 Mass. at 156-158 &
n.5, and 159 n.8, in which the Supreme Judicial Court concluded
that the opinion testimony of a qualified expert, based upon his
visual and tactile inspection of bags alleged to contain
marijuana, sufficed to establish that the substance was, in
fact, marijuana. Central to the court's analysis was that
marijuana, which is composed of dried leaves, stems, and seeds
of a plant, is different from compounds, extracts, or
preparations. The court also noted that the Commonwealth would
have presented "better evidence" if, in addition, the expert had
                                                                     6


    Where pharmaceutical drugs are concerned, in the absence of

chemical analysis, we have found the Commonwealth's evidence

sufficient to sustain its burden of proof only where evidence

derived from visual inspection was supplemented with other

circumstantial evidence probative of the identity of the drug.

In Commonwealth v. Alisha A., 56 Mass. App. Ct. 311, 313-315

(2002), we rejected the juvenile's claim that there was

insufficient evidence that the pills she distributed were the

class C substance Klonopin.    Witnesses described the pills'

appearance -- their color, shape, and the presence of a hollowed

out "K" in the middle of each tablet; and a physician testified

that Klonopin pills are usually identified by a "K" marked on

them.   In addition, however, there was other strong

circumstantial evidence that the pills were, in fact, Klonopin.

The juvenile had told her schoolmates that she would be bringing

Klonopin pills into school to distribute.    On the following day,

she arrived, displayed the pills, and gave about fifteen of them

to a schoolmate who, after ingesting two tablets, was observed

to be "under the influence."   Of particular significance, on the

same day that the juvenile brought the pills to school, the

juvenile's mother, who had a prescription for Klonopin, noticed

that she was missing seventeen pills.    Id. at 312-315.


opened the bags containing the substance and smelled it.     Id. at
158 n.7.
                                                                    7


     In an analogous vein, in Commonwealth v. Greco, 76 Mass.

App. Ct. 296, 298-300 (2010), we affirmed the defendant's

conviction of distributing the class E substance quetiapine,

despite the erroneous admission of drug certificates.     See

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).    There was

evidence that the pills in question were yellow and stamped with

the word "Seroquel," the brand name equivalent of the generic

drug quetiapine.   Commonwealth v. Greco, supra at 297, 299.

However, it also was established that two detectives had

observed the defendant standing in front of a Walgreens

pharmacy, removing pills from a large prescription bottle, and

handing them to another individual.   When questioned, the

defendant stated that the other individual had given him "ten

bucks for the pills."   The bottle, which was introduced in

evidence, bore the defendant's name and the logo "Walgreens."

Ibid.6

     In both these cases, the jury readily could infer that the

pills were obtained from a pharmacy pursuant to a prescription,

and therefore were authentic.   Here, however, apart from the

chemist's identification of the substances from reference to the


     6
       In Commonwealth v. Nelson, 460 Mass. 564, 574-575 (2011),
involving similar but weaker circumstantial evidence, the
Supreme Judicial Court distinguished the Greco case and held
that the circumstantial evidence was not sufficient to render
the erroneous admission of a drug certificate identifying pills
as trazodone harmless beyond a reasonable doubt.
                                                                   8


Micromedex resource and the corresponding certificates so

indicating, no other evidence was introduced at trial that could

aid the trier of fact in verifying the genuineness of the pills

seized.   Furthermore, although drug certificates ordinarily

would constitute prima facie evidence of the composition of a

drug, see G. L. c. 22C, § 39, the certificates in this case

state only that "[t]he tablets were consistent in markings and

appearance" with a class E substance.   The certificates' further

reference to G. L. c. 22C, § 39, in particular, that "[a]

certificate by a chemist of the department of the result of an

analysis made by him of a drug furnished him by a member of the

state police, signed and sworn to by such chemist, shall be

prima facie evidence of the composition, quality and when

appropriate, net weight of any mixture containing such drug,"

does not cure the inadequacy where it is clear from the face of

the certificates that the chemist's "analysis" was no more than

a visual inspection.    Without actual chemical analysis or

additional circumstantial evidence of the authenticity of the

tablets, the Commonwealth failed to prove an essential element

of its case, i.e., that the drugs forming the basis of the

charges against the defendant were, in fact, cyclobenzaprine and

quetiapine.

    3.    Conclusion.   As to the indictments charging the

defendant with possession of a class E drug, the judgments are
                                                                9


reversed, the verdicts are set aside, and a judgment of not

guilty is to be entered for the defendant on each indictment.

                                   So ordered.
