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SJC-11915

              COMMONWEALTH   vs.   MARWAN M. ALMELE.


                         July 12, 2016.


Controlled Substances. Evidence, Expert opinion. Witness,
     Expert. Practice, Criminal, Objection, Motion in limine,
     Striking of testimony.


     A jury in the District Court convicted the defendant of
possession of a class B controlled substance, in violation of
G. L. c. 94C, § 34; and possession of class B and C controlled
substances with intent to distribute, in violation of G. L.
c. 94C, §§ 32A (a) and 32B (a), respectively. The Appeals Court
affirmed the convictions, see Commonwealth v. Almele, 87 Mass.
App. Ct. 218 (2015), and we allowed the defendant's application
for further appellate review.

     Prior to the start of the trial, the Commonwealth filed a
motion in limine seeking to introduce the opinion testimony of a
police officer, Lieutenant Dennis Ledo, as an expert witness.
The defendant objected to allowing Ledo to testify on the basis
that the "expert opinion" that Ledo would offer was within the
jury's common knowledge, and that any such testimony would be
more prejudicial than probative. At the conclusion of the voir
dire hearing on the motion, the judge ruled that he would allow
Ledo to testify as an expert. The judge then noted "for the
record" the defendant's objection for "the reasons as stated [by
the defendant] plus any other reasons" and further stated that
he was "preserving" the defendant's objection "even during the
trial . . . so, we don't get into that situation where the
Appellate Court reviews . . . [under] a heightened standard
because there was no objection."
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     At trial, the prosecutor initially asked Ledo,
hypothetically and on the basis of his training and experience,
what significance it would have to him if a person had in his or
her possession a certain quantity of prescription drugs packaged
in a specific way. The defendant objected. The judge noted the
objection and then gave the jury a detailed explanation of
expert testimony, its purpose, and how the jury might consider
that testimony. The prosecutor then resumed questioning Ledo,
and again asked for his opinion. Ledo responded that his
"opinion was that the . . . drugs that were found on the
[d]efendant were intended for distribution." Although the
defendant objected to the initial question from the prosecutor
that led to this testimony, he did not move to strike Ledo's
answer as improper. Cf. Commonwealth v. Womack, 457 Mass. 268,
272-273 (2010), and cases cited; Commonwealth v. Cancel, 394
Mass. 567, 571 (1985).

     In his appeal, the defendant argues, among other things,
that Ledo impermissibly offered an opinion as to the defendant's
guilt. On the basis that the defendant did not "properly
preserve[] his claim that the Commonwealth's drug expert
erroneously intruded on the jury's function by offering his
opinion of the defendant's guilt," the Appeals Court reviewed
the claim "to determine whether a substantial risk of a
miscarriage of justice was created," rather than to determine
whether, as the defendant argued, the error was prejudicial.
Almele, 87 Mass. App. Ct. at 224. We agree with the Appeals
Court that the defendant did not preserve the particular error
about which he now complains, and that the error should
therefore be reviewed to determine whether it created a
substantial risk of a miscarriage of justice.

     In Commonwealth v. Grady, 474 Mass.    ,     (2016), which
we also decide today, we elaborate on the circumstances in which
a defendant's objection made in the context of a motion in
limine might excuse the need for a contemporaneous objection at
trial. As we state in Grady, we will no longer distinguish
between pretrial objections made on constitutional grounds and
those made on other grounds -- an objection made in a motion in
limine, regardless of its basis, will preserve a defendant's
appellate rights regardless of whether the defendant objects at
trial. A significant limitation on the preservation of rights
remains, however: if a defendant fails to object to the
admission of certain evidence at trial, his or her appellate
rights are only "preserved" if the specific issue at trial was
the same issue at the motion in limine stage. See id. at     .
The better practice, therefore, is for a defendant to object at
                                                                   3


trial even if he or she has already raised an objection prior to
trial.

     Additionally, and again as detailed in Grady, we caution
judges against "preserving" or "saving" a defendant's rights at
the motion in limine stage because doing so runs the risk of
lulling a defendant into not voicing a necessary objection at
trial. Here, the defendant's "preserved" objection went to
whether Ledo should be allowed to testify, i.e., whether expert
evidence was necessary and more probative than prejudicial. The
objection at the motion stage was not to the specific testimony
that Ledo might offer, but rather to him being allowed to
testify at all. See Grady, 474 Mass. at     . Against that
backdrop, it is reasonable to believe that when the judge stated
that he was "preserving" the defendant's objection, and noted
that he was doing so "in the event something happens and [an
objection at trial] doesn't occur," he intended only that the
defendant need not object, generally, at trial, to Ledo being
called to testify as an expert. The judge's statement cannot
reasonably have been understood to mean that the defendant was
being excused from objecting to any and all objectionable
aspects of Ledo's testimony as it might unfold at trial.

     This is further demonstrated by the judge's instruction to
the jury at the time of Ledo's trial testimony, an instruction
that went to the nature and need for expert opinion testimony in
general. The judge, in other words, was addressing the issue of
Ledo testifying at all, not the specifics of that testimony.
Additionally, the judge's indication, at the motion in limine
stage, that the judge was "preserving" the defendant's rights
did not lull the defendant into thinking that he need not object
-- he did object, when the prosecutor asked for Ledo's opinion,
and the judge rightly overruled the objection because the
question was not improper. What the defendant failed to do,
however, was to move to strike the very testimony that, on
appeal, he argues was improper -- Ledo's answer, which
impermissibly offered an opinion as to the defendant's guilt.

     We have thus reviewed the error to determine whether it
created a substantial risk of a miscarriage of justice, and, for
essentially the reasons set forth in the Appeals Court's
opinion, we too conclude that the error in question did not
create such a risk.1 As to the other issues raised by the
defendant, we also hold, again for the reasons given in the

    1
       Even were we to review the claimed error to determine
whether it was prejudicial, the defendant would fare no better.
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Appeals Court's opinion, that there was no error in permitting
the jury to consider certain statements as made during the
course of the joint venture, and that the evidence was
sufficient to permit a finding that the defendant had engaged in
that joint venture.

                                   Judgments affirmed.


     Patrick A. Michaud for the defendant.
     Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
