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13-P-903                                            Appeals Court

               COMMONWEALTH   vs.   EMMANUEL DeJESUS.


                           No. 13-P-903.

        Middlesex.     October 1, 2014. - March 23, 2015.

      Present:   Rapoza, C.J., Katzmann, & Wolohojian, JJ.


Evidence, Best and secondary, Hypothetical question.    Witness,
     Police officer. Entrapment.



     Complaint received and sworn to in the Malden Division of
the District Court Department on March 10, 2010.

    The case was tried before Dominic J. Paratore, J.


     Merritt Schnipper for the defendant.
     Erin J. Anderson, Assistant District Attorney, for the
Commonwealth.


    WOLOHOJIAN, J.    Police officers working undercover arranged

to purchase "crack" cocaine from a man known as "Paulie," whom

they suspected of operating in tandem with the defendant.     A

photocopy of the currency to be used for the purchase was made

beforehand.   The primary issue on appeal is whether the best

evidence rule required that the currency, rather than the
                                                                     2


photocopy, be admitted at trial.    Concluding that it does not,

we affirm the defendant's convictions.1

     Background.2    Officers of the Everett police department were

conducting an undercover operation to purchase crack cocaine.

The operation was focused on a man known as "Paulie," whom they

suspected of working with the defendant.    On March 9, 2010,

Sergeant Paul Strong photocopied six twenty-dollar bills and

then gave five of them to Detective Robert Hall, who was to

arrange the undercover purchase from Paulie.    Strong, who was

part of the team assigned to surveil the defendant, kept a

photocopy of the bills in his pocket.3

     Hall and Paulie arranged to meet near the corner of

Broadway and Gladstone Street in Everett.    Hall arrived by car

at the arranged time and place; Paulie arrived on foot and got

into Hall's car.    A purchase was arranged, and Hall gave Paulie

five of the bills that had been photocopied.    Paulie proceeded

to make two telephone calls.    After the second call, Paulie left

the car and walked up Gladstone Street.    Five minutes later,

     1
       The defendant was convicted of possession of cocaine with
intent to distribute, in violation of G. L. c. 94C, § 32A;
distribution of cocaine, in violation of G. L. c. 94C, § 32A;
and a drug violation near a school zone, in violation of G. L.
c. 94C, § 32J.
     2
       We recite the facts in the light most favorable to the
Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979).
     3
         All the bills were photocopied on a single page.
                                                                   3


Paulie returned and removed five plastic baggies of crack

cocaine from his mouth; he gave four of them to Hall.   Paulie

was then arrested.

    Meanwhile, Strong had been watching the defendant's

residence.   He observed the defendant drive away from his home,

pick up a passenger, meet briefly with a woman who approached

his (the defendant's) car, and then drive to the corner of

Gladstone and School Street, where he stopped.   This was near

where Hall and Paulie had arranged to meet.   Although neither

officer saw Paulie and the defendant meet, Strong saw Paulie

return to Hall's car.

    Strong then followed the defendant, who was stopped,

arrested, and searched.   The serial numbers of five twenty-

dollar bills found in his right front pants pocket matched those

of the bills Strong had photocopied at the beginning of the

operation.   Strong compared the bills with the photocopy and

placed a check mark next to each bill with a matching serial

number.   Later, during booking at the station, the defendant

removed from inside his pants twenty-two additional packets of

cocaine similar in size and appearance to those transmitted

through Paulie.

    We discuss additional facts as they are pertinent to our

discussion below.
                                                                      4


     Discussion.   Currency.   The Everett police department has

limited currency available to use in undercover drug operations

such as the one here.    As a result, its practice is to maintain

only a photocopy of the currency used in a particular operation

and then to reuse the currency in subsequent undercover

purchases.   The department followed this policy in this case

and, accordingly, the currency given to Paulie (and later

located in the defendant's pocket) was not available to be

introduced at trial.    Instead, the Commonwealth introduced the

photocopy which, as we noted above, was made before the

transaction and bore the check marks that Strong made after the

defendant's arrest.     The defendant argues that the best evidence

rule required admission of the original currency and that the

check marks were inadmissible hearsay.4    He further argues that,

without the photocopy, there was no evidence that the bills in

the defendant's pocket were those given by Hall to Paulie and,

therefore, the evidence was insufficient to establish

distribution.

     "The best evidence rule provides that, where the contents

of a document are to be proved, the party must either produce


     4
       The defendant objected to the admission of the photocopy
at trial; however, the nature of the objection was made at a
sidebar conference that was not transcribed. We assume for
purposes of this appeal that the arguments raised here were
preserved below.
                                                                     5


the original or show a sufficient excuse for its nonproduction."

Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001). See Mass.

G. Evid. § 1002 (Requirement of Original [Best Evidence Rule])

(2014).   The rule is "a doctrine of evidentiary preference

'principally aimed, not at securing a writing at all hazards and

in every instance, but at securing the best obtainable evidence

of its contents.'"   Ocasio, supra, quoting from 2 McCormick,

Evidence § 237 (5th ed. 1999).   See Buker v. Melanson, 8 Mass.

App. Ct. 325, 330 (1979) ("The 'best evidence' rule is

preferential, not exclusionary").

     If currency is not a "writing" for purposes of the best

evidence rule, a photocopy can be used without accounting for

the money itself.    Commonwealth v. Balukonis, 357 Mass. 721, 725

(1970).   "[T]his rule is usually regarded . . . as not

applicable to any objects but writings . . . .    So far, then, as

concerns objects not writings, a photographic representation

could be used without accounting for the original."    Ibid.,

quoting from Wigmore, Evidence (3d ed.) § 796.    See generally

Mass. G. Evid. art. X (Contents of Writings and Records).

     We have not previously directly addressed whether currency

constitutes a "writing" or "record,"5 and we need not do so in


     5
       "'Writings' and 'records' are documents which consist of
letters, words, numbers, or their equivalent. Writings and
records do not include photographs, composite pictures, tape
recordings, videotapes, or digital images." Mass. G. Evid.
                                                                   6


this case because "[t]he best evidence rule is applicable to

only those situations where the contents of a writing are sought

to be proved."   Balukonis, supra at 725.    The content of the

currency here was not at issue.     It did not matter what the

serial numbers on the bills were, or even whether the money was

genuine or counterfeit.   All that mattered was that the

photocopy of the bills made at the station at the beginning of

the operation matched the bills found in the defendant's pocket

at the end.   Thus, even assuming that the currency used in the

drug transaction was a "writing" within the contemplation of the

best evidence rule, its contents were not sought to be proved by

introduction of the photocopy.6,7



§ 1001(a). See Commonwealth v. Weichell, 390 Mass. 62, 77
(1983), cert denied, 465 U.S. 1032 (1984) (best evidence rule
not applicable to photographs).
     6
       Our view in this regard is consistent with that of other
jurisdictions that have considered the question. See United
States v. Angle, 230 F.3d 113, 120 (4th Cir. 2000), vacated in
part on other grounds by 254 F.3d 514 (4th Cir. 2001) (en banc)
(photocopy of currency used in drug purchase was not subject to
best evidence rule); Wingfield v. State, 363 Ark. 380, 387
(2005); Day v. State, 297 A.2d 50, 51 (Del. 1972) (failure to
admit currency did not violate the best evidence rule because
"the actual writings on the five dollar bills were immaterial.
The only material point was the identification of the particular
bills through the serial numbers recorded by the patrolman");
Strickland v. State, 175 Ga. App. 224, 225 (1985); Johnson v.
State, 231 Ga. App. 114, 115 (1998); State v. Yarber, 829 S.W.2d
479, 481 (Mo. App. 1992).
     7
       Moreover, even were we to assume that the best evidence
rule applied, we would conclude that the judge did not abuse his
discretion in admitting the photocopy given that the currency
                                                                     7


    The defendant is correct that Strong's check marks on the

photocopy are hearsay because Strong made them in order to

signify that the serial numbers on the bills found in the

defendant's pocket matched those on the photocopy.     "[C]onduct

can serve as a substitute for words, and to the extent it

communicates a message, hearsay considerations apply."

Commonwealth v. Gonzalez, 443 Mass. 799, 803 (2005).     See Mass.

G. Evid. § 801(a) (A hearsay "statement" may include "nonverbal

conduct of a person, if it is intended by the person as an

assertion").   Because the defendant lodged no objection to the

check marks, we review only to determine "whether, due to the

jury's consideration of objectionable hearsay, 'there is a

substantial risk of a miscarriage of justice.'"   Commonwealth v.

Keevan, 400 Mass. 557, 562 (1987) (citation omitted).     Here, we

perceive no such risk.   Strong testified that the serial numbers

of the bills in the defendant's pocket matched those of the

bills he had photocopied earlier in the day in anticipation of

the undercover purchase.   The checkmarks added little, if

anything, to this testimony.   And, although it is true that

there was no direct evidence that the defendant sold the drugs

to Paulie, the circumstantial evidence more than sufficed to


was unavailable only because of a neutral administrative policy
driven by limited police resources. "Secondary evidence may be
introduced if, as here, the judge finds that the original
writing is unavailable through no serious fault of the
proponent." Buker v. Melanson, 8 Mass. App. Ct. at 330-331.
                                                                    8


support that conclusion beyond a reasonable doubt.    See

Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014) (sufficiency

of evidence is measured by the admitted evidence without regard

to whether it was properly admitted).

     Hypothetical question.   The defendant argues that a

hypothetical question posed to Detective Paul Norton8

impermissibly tread into the province of the jury by calling for

an opinion about the defendant's guilt.    The testimony at issue

is set out in full, together with the question and answer that

preceded it because those, too, are relevant to our discussion.

     The prosecutor: "Can you describe for us exactly what
     type of transaction you believe was occurring?"

     Detective Norton: "Okay. The undercover officer,
     Detective Hall, arranged a meeting with what we would
     call a middleman. That person doesn't have the
     narcotics on them, but he knows where you can get
     them. So he'd take the money from that person, have
     them meet and wait, and then he'd go get the drugs and
     come back as the middleman."

     Defense counsel: "Objection, Your Honor.     Can we
     approach, please?"

     The judge:   "Sure."

               [Discussion at sidebar.]

     The judge:   "Objection sustained."

     The prosecutor: "Detective, I'm going to go through a
     series of hypothetical assumptions with you."



     8
       Detective Norton identified himself as narcotics detective
for the Stoneham police department.
                                                         9


The judge: "Let me -- ladies and gentlemen, what
happens sometimes is a witness, such as the present
witness, comes in. They have no personal knowledge,
but they have an expertise in which -- and I'm going
to give you an instruction on expert testimony when I
give my final instructions to you -- so what the
Commonwealth is going to do right now is ask his
opinion -- of this witness to assume some certain
facts, and then based on those facts can he run an
opinion -- serve an opinion about certain things, and
then ask that opinion. It's perfectly acceptable on
the Rules of Evidence. And, again, it's an expert
testimony offered to you because no one else can give
you that type of testimony. It's outside our
layperson's expertise. Here I go, here's a word
expertise. But it's out of our layperson's purview or
basic knowledge of things. So that's what this
witness is about to do."
                         . . .

The prosecutor: "Detective, I'd like you -- I'd like
you to assume the following facts. Let's assume that,
again, there's a drug transaction and it's being set
up by an undercover police officer who's made an
appointment with an individual by telephone and that
individual and the detective have set up a time and
place, a specific time and place to meet. The
individual and the detective meet in the detective's
vehicle. The individual gets into the vehicle's [sic]
car, the detective hands the individual money after
telling the individual that he wants to buy cocaine.
He hands the individual $100 in currency -- in U.S.
currency. The individual leaves the detective's car,
walks away, the individual enters another person's car
briefly, leaves that other person's car, walks back to
the detective's car, and then hands the detective a --
some four bags of cocaine. The car that the
individual had entered, not the detective's car, the
other car, it stopped, and in that car found two
individuals, one individual found in possession of a
much larger amount of bags, 22 bags. Can you broaden
an opinion as to what that actually looks from your
experience and expertise?"

Detective Norton: "Yes. My opinion would be that the
person that the detective met and gave money was the
middle person going to the dealer; went to the dealer,
                                                                   10


     purchased the amount of drugs that the detective
     ordered, and brought it back to the detective from
     that car that it was in."

     The prosecutor: "And in your training and experience,
     is this a common method for drug deals to take place?"

     Detective Norton:   "Yes, it is."

     We agree that Norton should not have been allowed to opine

hypothetically that a person in Paulie's circumstances was

acting as a middleman for a person in the shoes of the

defendant, particularly since Norton's previous answer had not

been stricken.9   See Commonwealth v. Tanner, 45 Mass. App. Ct.

576 (1998); Commonwealth v. Woods, 419 Mass. 366, 374-375

(1995).   Hypothetical questions to a police officer are not per

se impermissible; however, here the line was crossed because the

hypothetical question was transmuted into a nonhypothetical

comment on the actual actors.   Moreover, the opinion was one in

name only since it was nothing more than a factual inference

that could have been drawn by, and should have been left to, the

jury; it required no particular expertise.   However, we conclude

that no substantial risk of a miscarriage of justice resulted.

See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 184-185

(2009).   At bottom, Norton's opinion was merely the most obvious

(and perhaps only) inference to be drawn from the facts.


     9
       The follow-up question was permissible in that it was not
an opinion on the defendant's guilt and also related to the
common practice of drug dealers.
                                                                    11


    School zone entrapment.     For the first time on appeal, the

defendant argues that he was entitled to an instruction on

entrapment with respect to the school zone violation because he

was drawn to the location by the arrangement made by Hall with

Paulie.   See Commonwealth v. Lawrence, 69 Mass. App. Ct. 596,

603-604 (2007).   The issue, however, is not adequately presented

because the record does not show that the police chose the

location to meet with Paulie.   Moreover, for all that appears,

defense counsel's failure to seek an entrapment instruction may

have been strategic because the instruction would have

conflicted with the theory of defense, which was that the

defendant was not involved at all.

    For these reasons, the convictions are affirmed.

                                     So ordered.
