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SJC-10834

                COMMONWEALTH   vs.   AMARAL MONTROND.



        Plymouth.      February 14, 2017. - May 17, 2017.

     Present:   Gants, C.J., Lenk, Hines, Lowy, & Budd, JJ.


Homicide. Constitutional Law, Assistance of counsel,
     Confrontation of witnesses. Intoxication. Evidence,
     Intoxication, Prior misconduct, Relevancy and materiality,
     Expert opinion. Witness, Expert. Practice, Criminal,
     Capital case, Assistance of counsel, Confrontation of
     witnesses.



     Indictments found and returned in the Superior Court
Department on November 16, 2007.

     The cases were tried before Paul E. Troy, J.; a motion for
a new trial, filed on July 12, 2012, and a motion for
postconviction discovery, filed on May 2, 2013, were considered
by him, and following remand by this court, the motion for a new
trial was heard by Thomas F. McGuire, Jr., J.


     Leslie W. O'Brien for the defendant.
     Laurie Yeshulas, Assistant District Attorney, for the
Commonwealth.
                                                                     2


     LENK, J.   The defendant appeals from his conviction of

murder in the first degree1 on a theory of deliberate

premeditation in the shooting death of Carlita Chaney on August

16, 2007, and from the denial of his motion for a new trial.

The defendant's consolidated appeal from his convictions and

from the denial of his motion for a new trial first came before

this court in November, 2014, when, following oral argument, we

stayed the appeal and remanded the matter to the Superior Court

to conduct an evidentiary hearing concerning the defendant's

ineffective assistance of counsel claim and the location of

certain telephone records.    After that hearing, the defendant

renewed his motion for a new trial, which the judge denied.

     On appeal, the defendant argues that his trial counsel was

ineffective, and that his right of confrontation pursuant to the

Sixth Amendment to the United States Constitution was violated

by virtue of certain testimony from the Commonwealth's medical

examiner.   He also contends that both motion judges erroneously

denied his motion for a new trial.    Finally, the defendant asks

that we exercise our authority under G. L. c. 278, § 33E, to

reduce the degree of guilt.    We conclude that there was no error

requiring reversal, and discern no reason to exercise our



     1
       The defendant also was convicted of unlawful possession of
a firearm, unlawful possession of ammunition, and being an armed
career criminal.
                                                                      3


extraordinary power under G. L. c. 278, § 33E.      Accordingly, we

affirm the convictions.

     1.   Background.   a.   Facts.   Based on the evidence at

trial, the jury could have found the following.      The defendant

and the victim had been involved in a romantic relationship and

had two children together.    They lived together in Brockton from

1997 until 2002, when they broke up.     The victim then moved to

Ohio with the children and had a child with someone else.        In

2006, she and the three children moved to Spartanburg, South

Carolina.   Although her romantic relationship with the defendant

had ended, the victim would bring the children to Brockton for

one month every summer, and would stay with the defendant and

his family.2

     In early October, 2006, the victim's younger sister,

Kenyisha Chaney,3 learned that the defendant was listed on the

Internet Web site, MassMostWanted.     She told this to the victim,

who was then living in South Carolina; at that time, the

defendant was staying at the victim's house.     Shortly after

Kenyisha informed her of the defendant's "wanted" status, the

victim alerted the South Carolina police.     The defendant was



     2
       The defendant lived with his parents and his brother at
the parents' house in Brockton.
     3
       Because Carlita Chaney and her sister, Kenyisha Chaney,
share a last name, we refer to Kenyisha by her first name.
                                                                   4


arrested at the victim's house and was returned to

Massachusetts.   Subsequently, he was released on bail.4

     In July, 2007, the victim returned to Brockton to stay with

the defendant's family for one month.   Although the victim did

not spend the entire month at the defendant's parents' house,

she was staying there on the night of August 15, 2007.     That

night, Kenyisha spoke with the victim by cellular telephone at

approximately 11:30 P.M.   Kenyisha testified at trial that she

heard the defendant in the background telling the victim to get

off the telephone and that the victim told her that the

defendant had an "attitude" toward her and had called her a

"snitch."5

     Around 1 A.M. on the morning of August 16, 2007, the

defendant shot the victim in the head at close range as she

reclined on the couch in the basement of the Montronds' home.

According to the defendant's parents, who were awakened by the


     4
       The defendant's sister, Patricia Montrond, testified at
trial that the defendant spoke with her at some point shortly
after his 2006 arrest, and said that he did not harbor any ill
will toward the victim for turning him in, commenting that she
"had her reasons."
     5
       The content of this conversation was a contested issue at
trial. In her grand jury testimony, Kenyisha testified that the
victim had told her over the telephone that the defendant had
"called her a snitch." In an interview with a police officer
two years later, Kenyisha stated that she actually had heard the
defendant in the background referring to the victim as "the
snitch of the day." Kenyisha was extensively cross-examined on
this issue.
                                                                    5


sound of the gunshot, they rushed downstairs and saw the

defendant screaming and crying, "accident, accident."   He

appeared to be suicidal.   Jose Montrond, the defendant's father,

told Maria Montrond,6 the defendant's mother, to retrieve the

gun, which was on the floor, and put it upstairs.    Maria picked

up the gun and gave it to Jose, who put the gun in a plastic bag

and placed it inside a kitchen cabinet.   The Montronds testified

that they did nothing further with the gun, which police found

with the safety lock engaged.   No one called 911.

     Shortly thereafter, Patricia Montrond, the defendant's

sister, received a frantic telephone call from their brother,

Maradona Montrond, telling her that "something bad happened" and

that she should come to the Montronds' house immediately.     She

arrived to find the defendant crying, pounding his head, and

yelling that the shooting was an accident.   She called 911 and

told the dispatcher:

          "This is an emergency. My brother just told me he was
     playing with a gun. He thought the gun was on safety. He
     just killed his girl friend. He just killed his girl
     friend downstairs on the couch by mistake. A gun was -- he
     thought the gun was -- my brother thought the lock -- the
     gun was locked when he was playing with it. He killed his
     girl friend by mistake. My brother thought his gun was on
     lock, I guess. He was playing with it and pointing it at
     his girl friend. She's dead; she's dead on the couch."


     6
       Because the defendant's parents, Jose and Maria Montrond,
his brother, Maradona Montrond, and his sister, Patricia
Montrond, share a last name, we refer the them by their first
names.
                                                                     6


     Brockton police Officer Jason Ford was one of the first

responders.    When he entered the house, he saw the defendant

wearing a "soiled" t-shirt and staring at the ground with red,

glassy eyes; the defendant looked as if he had been crying.

Ford retrieved the gun from the cabinet where the defendant's

parents had placed it, noted that the safety lock was on, and

put it in the trunk of his cruiser.    The defendant was arrested

and read the Miranda rights.

     b.    Trial and posttrial proceedings.   At trial, the theory

of the defense was that the shooting was accidental.    In

particular, trial counsel argued that the defendant thought that

the safety lock was engaged when the firearm fired the fatal

shot.     The jury convicted the defendant of murder in the first

degree and the firearms offenses.7

     In July, 2012, the defendant filed a motion for a new trial

on grounds of ineffective assistance of counsel and a violation

of his right to confrontation under the Sixth Amendment.     The

defendant argued that his trial counsel had provided ineffective

assistance by failing (1) to present evidence that the defendant

was intoxicated at the time of the shooting;8 (2) to object to


     7
       The defendant was convicted of being an armed career
criminal in a separate, jury-waived proceeding.
     8
       In support of the assertion that he had been intoxicated,
the defendant submitted his own affidavit and that of one of his
friends, each stating that the defendant had been drinking
                                                                    7


the admission of testimony regarding the defendant's name

appearing on MassMostWanted; and (3) to seek to strike an answer

by the Commonwealth's medical examiner that, in her opinion, the

shooting was a homicide.   The defendant's contention that he had

been deprived of his right to confrontation was based on a

statement by the medical examiner, who was permitted to testify,

over trial counsel's objection, to the results of toxicology

testing that she had not conducted.

    The first motion judge, who was also the trial judge,

denied the motion for a new trial without an evidentiary

hearing.   The judge rejected the ineffective assistance claim

involving evidence of the defendant's intoxication for three

reasons:   first, he did not credit the affidavits submitted by

the defendant; second, he concluded that Ford's testimony was

not sufficient to establish "an inference that [the defendant]

was so debilitated by alcohol that his ability to form the

requisite criminal intent was impaired"; and third, he

determined that the evidence of intoxication could have

undermined the defense of accident.   The judge denied the

ineffective assistance of counsel claim arising from trial

counsel's failure to object to references to the defendant's


heavily on the evening of the shooting, as well as the grand
jury testimony of Brockton police Officer Jason Ford. Ford
testified before the grand jury but not at trial that when he
first arrived at the Montronds' house, he noticed that the
defendant "reeked of B.O., like sweat and B.O., and of alcohol."
                                                                   8


name appearing on MassMostWanted both because the references

were properly admissible to show the defendant's motive and

because, even if they were admitted in error, there was no

substantial likelihood of a miscarriage of justice.   With

respect to the ineffective assistance of counsel claim

concerning the medical examiner's opinion that the killing was a

homicide, the judge determined that trial counsel had mitigated

the impact of the testimony by following up on the examiner's

answer and ultimately causing her to recant her opinion.

     As to the medical examiner's testimony concerning the

toxicology testing she had not performed, the judge concluded

that there had been a violation of the defendant's rights under

the confrontation clause, but that trial counsel had mitigated

the erroneous admission of the medical examiner's testimony

through an effective cross-examination and that the error did

not contribute to the verdict.   The judge also denied the

defendant's motion for expanded discovery, which would have

required the Commonwealth to provide any telephone records in

its possession that indicated calls from Kenyisha's telephone to

the victim on the night of the shootings.9



     9
       The defendant's appellate counsel stated in the motion
that she had reviewed "the defendant's trial file and ha[d] been
unable to locate the records." She also noted in an affidavit
attached to the motion that she had been unable to contact trial
counsel, who had been suspended from the practice of law.
                                                                    9


     c.   First oral argument.   We initially heard oral argument

in November of 2014.   The defendant's direct appeal was

consolidated with his appeal from the denial of his motion for a

new trial, and raised all the arguments that he made in that

motion.   He also challenged the denial of his motion for

postconviction discovery, and asked that this court exercise its

extraordinary powers to reduce the degree of guilt.   As stated,

we remanded the matter to the Superior Court so that a limited

evidentiary hearing could be conducted, at which trial counsel

could be summonsed to testify.

     d.   Proceedings on remand.   Pursuant to the order of

remand, a hearing was conducted in April, 2015, at which trial

counsel testified regarding the telephone records10 and the

decision not to introduce any evidence suggesting that the

defendant had been intoxicated on the evening of the shooting.

Trial counsel testified that the main reason he had not

introduced evidence of the defendant's intoxication was because


     10
       Trial counsel testified at the April, 2015, evidentiary
hearing that he had a "clear memory of being satisfied" that the
telephone call that was the subject of the defendant's motion
for posttrial discovery took place, but that he did not have a
copy of the relevant telephone records. Following that hearing,
the Commonwealth complied with our subsequent order compelling
it to produce the records in question so that it would be
possible to determine whether a call had taken place between the
victim and Kenyisha on the evening of the shooting. The
Commonwealth produced the records in question, which confirmed
that Kenyisha had spoken with the victim for approximately
twelve minutes around 11:30 P.M. that evening.
                                                                   10


it could have provided the jury with an incentive to find the

defendant guilty of murder in the second degree.   When pressed,

trial counsel stated that he decided not to introduce the

intoxication evidence because he was "going for all the

marbles" -- i.e., an acquittal -- and that he had been concerned

that introducing evidence of intoxication evidence might run

counter to achieving that result.

    The second motion judge11 ultimately denied the defendant's

motion for a new trial.   Applying the standard set out by this

court in Commonwealth v. Saferian, 366 Mass. 89 (1974), he

concluded that trial counsel's failure to introduce the

intoxication evidence was "manifestly unreasonable," but that it

did not deprive the defendant of a substantial ground of defense

or affect the jury's verdict.   Although the judge credited

counsel's explanation that his goal had been an outright

acquittal, the judge noted that this strategy was undercut by

trial counsel's successful request for a jury instruction

concerning involuntary manslaughter.   Moreover, the judge

observed that evidence of intoxication "would have supported

[counsel's pursuit of an outright acquittal] by giving the jury

a reason to believe that the defendant did not realize the

safety was disengaged."

    11
       The judge who conducted the evidentiary hearing was not
the trial judge, who initially had denied the defendant's motion
for a new trial. The trial judge had since retired.
                                                                   11


    He ultimately denied the defendant's motion for a new

trial, however, because he determined that "a good deal of

evidence to support the defendant's argument that the shooting

was an accident" had been elicited at trial, and that the

omission of the intoxication evidence "did not deprive the

defendant of that defense" nor, given the strong evidence of the

defendant's motive, "change[] the result of the trial."

    2.   Discussion.   a.   Ineffective assistance.   On appeal,

the core of the defendant's claim of ineffective assistance

remains trial counsel's failure to introduce evidence suggesting

that the defendant was intoxicated on the night of the victim's

death.   The defendant also argues that trial counsel's decision

not to object to repeated references to the defendant's name

being listed on MassMostWanted, and his failure to move to

strike a nonresponsive answer by the medical examiner,

constituted ineffective assistance.   We consider each claim in

turn.

    Pursuant to G. L. c. 278, § 33E, "we consider claims of

ineffective assistance to determine 'whether there was an error

in the course of the trial (by defense counsel, the prosecutor,

or the judge) and, if there was, whether that error was likely

to have influenced the jury's conclusion.'"    Commonwealth v.

Spray, 467 Mass. 456, 472 (2014), quoting Commonwealth v.

Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
                                                                   12


Should we determine "that counsel erred by failing to raise a

substantial defense, 'a new trial is called for unless we are

substantially confident that, if the error had not been made,

the jury verdict would have been the same' [citation omitted]."

Commonwealth v. Sena, 429 Mass. 590, 595 (1999), cert. denied,

441 Mass. 822 (2004).

    i.   Intoxication evidence.   When a defendant raises a claim

of ineffective assistance of counsel where the case is reviewed

under G. L. c. 278, § 33E, we do not consider the adequacy of

trial counsel's performance pursuant to Saferian, 366 Mass. at

96, but, rather, consider whether there was "an error in the

course of the trial."   Wright, 411 Mass. at 682.   "A strategic

decision by an attorney . . . constitutes error 'only if it was

manifestly unreasonable when made.'"   Commonwealth v.

Alcequiecz, 465 Mass. 557, 562-563 (2013), quoting Commonwealth

v. Jenkins, 458 Mass. 791, 804-805 (2011).    We agree with the

second motion judge that, in light of all the circumstances,

trial counsel's strategic decision not to introduce evidence of

the defendant's intoxication on the night of the shooting was

manifestly unreasonable and was thus error.   Because we are

substantially confident that, had this error not been made, the

jury verdict would have stayed the same, however, we discern no

error in the denial of the renewed motion for a new trial.
                                                                     13


     As to trial counsel's strategic decision regarding evidence

of the defendant's intoxication, the record makes plain that

trial counsel did not pursue an all-or-nothing strategy.     Trial

counsel successfully argued, over the Commonwealth's objection,

for an instruction concerning involuntary manslaughter, and

mentioned -- albeit briefly -- that theory in his closing

argument.   Evidence that the defendant was intoxicated could

have undercut the Commonwealth's theory that the shooting was

intentional, see, e.g., Commonwealth v. Sama, 411 Mass. 293, 298

(1991),12 and thereby have given the jury more of a basis to find

the defendant guilty of involuntary manslaughter rather than

murder in the first degree by deliberate premeditation.

     Further, we are unpersuaded that the intoxication evidence

would have detracted in any meaningful way from the primary

defense of accident.   The defendant's accident defense rested on

the Montrond family's testimony concerning the defendant's

reaction to the shooting.   This was a slender reed.   The jury

heard no theory as to how the defendant came to be handling a

loaded firearm in the basement of his parents' house, or why he

pulled the trigger while the victim was sitting on a couch and


     12
       Although the parties dispute whether Ford's testimony
would have been sufficient to warrant an instruction on
intoxication, even without such an instruction, the jury
independently could have concluded that the consumption of
alcohol gave rise to a reasonable doubt whether the defendant
formed an intent to kill, and with deliberate premeditation.
                                                                    14


the gun was aimed at her head.    Without the intoxication

evidence, and in the face of strong evidence as to motive, the

jury were left with essentially two ways of understanding the

shooting:    inexplicable carelessness or an intended act.   As the

second motion judge concluded, evidence suggesting that the

defendant was intoxicated at the time of the shooting likely

would have bolstered his case for acquittal by giving the jury a

plausible explanation as to how he could have accidentally

pulled the trigger.

    In this regard, we also recognize that the jury could have

deemed the defendant reckless irrespective of his alcohol

consumption, and guilty of murder in the second degree or of

involuntary manslaughter.    Leveling a gun at point blank range

at a victim's head without first ascertaining whether the safety

is on could certainly satisfy the Welansky standard for wanton

or reckless conduct, i.e., when an "ordinary normal man under

the same circumstances would have realized the gravity of the

danger."    Commonwealth v. Welansky, 316 Mass. 383, 398-399

(1944).    In light of all this, the defendant had very little to

lose, and something to gain, by introduction of the intoxication

evidence.    All in all, trial counsel's strategic decision not to

present evidence suggesting that the defendant was intoxicated

on the night of the killing was "manifestly unreasonable."

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
                                                                   15


     Nonetheless, this error does not require a new trial.    In

light of all the evidence and the strength of the Commonwealth's

case, we are substantially confident that the jury's verdict

would have been the same had the error not been made and the

intoxication evidence instead introduced.   Most significantly,

there was solid evidence of the defendant's motive, lessening

the impact of any potential intoxication as the explanation for

the shooting.   The Commonwealth presented compelling evidence

that the defendant shot the victim in revenge for having turned

him in to police -- most notably Kenyisha's testimony that the

defendant had referred to the victim as a "snitch" shortly

before her death, which was largely unrefuted.13

     Even if the Commonwealth's evidence of motive had been less

powerful, the proffered intoxication evidence likely would not

have been strong enough, standing alone, to change the jury's

verdict.   That evidence of intoxication was tepid at best,

consisting only of one first responder's somewhat equivocal

description of a detected hybrid odor:   "reek[ing] of B.O., like

sweat and B.O., and of alcohol," along with observed emotionally

freighted behavior consistent with causes that may or may not


     13
       The inconsistencies emphasized by trial counsel on cross-
examination did little to mitigate Kenyisha's testimony.
Although her account of the telephone call with the victim on
the night of the shooting varied slightly, she consistently
stated that, with whatever adjectives, the defendant had called
the victim a "snitch."
                                                                   16


have been alcohol related.     This hardly would have given rise to

a compelling inference that the defendant was so intoxicated he

could not appreciate the need to check the safety lock before

pointing a loaded gun at someone's head and pulling the

trigger.14    See, e.g., Commonwealth v. Mountry, 463 Mass. 80, 93

(2012).

     Accordingly, although the intoxication evidence could have

been somewhat helpful to the defendant's case and should have

been introduced, we are substantially confident that, had it

been introduced, the jury's verdict would have been the same.

The failure to introduce this evidence does not warrant a new

trial.

     ii.     MassMostWanted.   The defendant contends that his trial

counsel's failure to object to references to the Internet Web

site, MassMostWanted, also constituted the ineffective

assistance of counsel.    Two such references were in Kenyisha's

testimony at trial and one was in the Commonwealth's closing

argument; trial counsel did not object to any of these

references.

     "It is long established that evidence of uncharged criminal

acts or other misbehavior is not admissible to show a


     14
       In addition, the Commonwealth also argued that the
defendant had placed the safety lock back in place after killing
the victim in support of its contention that the shooting was
not accidental.
                                                                     17


defendant's bad character or propensity to commit the charged

crime, but may be admissible if relevant for other purposes such

as 'common scheme, pattern of operation, absence of accident or

mistake, identity, intent or motive.'"   Commonwealth v. Barbosa,

457 Mass. 773, 793 (2010), cert. denied, 563 U.S. 990 (2011),

quoting Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006).     This

rule reflects the "inherent danger" that a jury will assume

that, because a defendant has previously misbehaved in some way,

he "must have committed the crime charged."   See id. at 793-794.

Nonetheless, "[e]ven if the evidence is relevant to one of these

other purposes, the evidence will not be admitted if its

probative value is outweighed by the risk of unfair prejudice to

the defendant."   Commonwealth v. Crayton, 470 Mass. 228, 249

(2014).

    Applying these principles to the present case, it was error

for trial counsel not to have objected to the references to

MassMostWanted, which were more prejudicial than probative.     The

defendant's potential motive for killing the victim was well

established by evidence demonstrating his awareness that the

victim had turned him in to police.   Whatever minor probative

value the references might have had in bolstering evidence of

motive was outweighed by the potential prejudice to the

defendant.   The jury likely would infer from the references to

MassMostWanted that the defendant was what the Web site said --
                                                                   18


one of the Commonwealth's most wanted fugitives -- and therefore

that he was accused of committing a serious crime similar to the

one that he was accused of in this case.

    Notwithstanding this, we are "substantially confident" that

the references to MassMostWanted did not alter the jury's

verdict (citation omitted).    See Commonwealth v. Alcide, 472

Mass. 150, 157 (2015).   In his final charge, the judge gave a

curative instruction, helping to alleviate the prejudice from

the statements.    See Commonwealth v. Costa, 69 Mass. App. Ct.

823, 827 (2007).   In addition, given the properly introduced

testimony that Massachusetts police went to South Carolina to

pick up the defendant, the jury reasonably could have inferred

that the defendant's other alleged crimes were quite serious.

Most significantly, the strength of the Commonwealth's case, and

the weight of the other evidence, cuts against the potential

impact of the error.

    iii.   Medical examiner's testimony.    The defendant argues

that his trial counsel provided ineffective assistance by

failing to move to strike a statement by the medical examiner.

We disagree.   On cross-examination, the medical examiner was

asked if the path of the bullet allowed her to opine whether the

shooting was intentional or accidental; she responded, "My

opinion on this case is that it's a homicide."   In response to

further probing questions by trial counsel, she clarified that
                                                                   19


her observations of the victim's wound, including the path of

the bullet and the close range from which the shot was fired,

did not permit her to say whether the shooting was intentional

or accidental.15   The motion judge found that, although the

medical examiner's statement was improper, trial counsel

ameliorated the harm by his following inquiries.    Although a

medical examiner generally may not offer an opinion that a death

is a homicide, it is apparent from the record that trial

counsel's effective cross-examination caused the medical

examiner to recant her opinion shortly after she offered it.

     b.   Confrontation clause.   The defendant contends also that

other testimony elicited from the medical examiner violated the

defendant's right of confrontation under the Sixth Amendment.

The medical examiner testified to the results of a toxicology

report created by another analyst pursuant to the autopsy on the

victim, which showed that the victim had a blood alcohol level

of .04, and the equivalent of two or more doses of oxycodone in

her system at the time of her death.   "The confrontation clause

bars the admission of testimonial out-of-court statements by a

witness who does not appear at trial unless the witness is

     15
       Immediately after the medical examiner's statement that
she believed the shooting was a homicide, trial counsel asked
her, "Did you understand my question . . . ?" to which she
responded, "Not particularly." Shortly thereafter, trial
counsel asked whether, based on the evidence, she could tell if
the shooting had been accidental or intentional, and she
replied, "Absolutely not."
                                                                  20


unavailable to testify and the defendant had an earlier

opportunity for cross-examination."   Commonwealth v. Irene, 462

Mass. 600, 617, cert. denied, 133 S. Ct. 487 (2012).   See

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009)

(confrontation clause applies to certificates of drug analysis

admitted to prove substances are illegal drugs).   A violation of

the right to confrontation requires a new trial unless it can be

established, "beyond a reasonable doubt, that the erroneously

admitted [evidence] had little or no effect on the verdicts."

Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010).

     The first motion judge concluded that the testimony

concerning the specific findings in the toxicology report

violated the defendant's right of confrontation, but that the

error was harmless beyond a reasonable doubt because it did not

have any impact on the verdict.   The Commonwealth does not

dispute that the testimony concerning the results of the

toxicology report was testimonial but contends that the motion

judge correctly determined that such error was harmless.

Assuming without deciding that it was error to admit the

testimony in question,16 we agree that any such error was


     16
       The issue whether evidence akin to the toxicology reports
is testimonial admits of different views. Compare Commonwealth
v. Lezynski, 466 Mass. 113, 116 (2013) (expert witness reading
verbatim into record toxicology report created by another
violated right of confrontation of defendant charged with
possession of class B substance with intent to distribute), and
                                                                      21


harmless beyond a reasonable doubt.    See Vasquez, 456 Mass. at

362.

       The results of the toxicology report supported the

Commonwealth's testimony that the victim was asleep when the

shooting occurred.     It was uncontested at trial, however, that,

at the time of the shooting, the victim was reclining on a sofa,

with a blanket draped over her, at approximately 1 A.M.      Hence,

the jury separately had good reason to believe that she had been

asleep at the time of the shooting regardless of the precise

amount of alcohol and oxycodone in her system; in any event, the

issue whether the victim was asleep appears not to have been

contested at trial.

       c.   Review under G. L. c. 278, § 33E.   Having reviewed the

entire record in accordance with our duty under G. L. c. 278,

§ 33E, we discern no reason to reduce the degree of guilt or to

order a new trial.

                                      Judgments affirmed.




United States v. Ignasiak, 667 F.3d 1217, 1232 (11th Cir. 2012)
(autopsy report testimonial because "made under circumstances
which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial"
[citation omitted]), with United States v. James, 712 F.3d 79,
101-102 (2d Cir. 2013), cert. denied, 134 S. Ct. 2660 (2014)
(toxicology report was nontestimonial because "[t]here [was] no
indication . . . in the record that a criminal investigation was
contemplated during the inquiry into the cause of [the victim's]
death"), and People v. Leach, 2012 IL 111534, ¶¶ 128-138
(autopsy reports not testimonial).
     LOWY, J. (concurring).    I agree with the court's analysis

and resolution of the issues in this case.   I write separately

to make explicit that the court does not decide whether, as a

general matter or on the facts of this case, the toxicology

report of the victim constitutes testimonial hearsay, such that

the defendant would have a right to confront the particular

individual who prepared the report.   If such a report is not

testimonial, and is otherwise admissible as a business record,

an expert witness may reference the report's context during

direct testimony.

     In Massachusetts, an expert may not testify on direct

examination to facts that are not in evidence.1   See Commonwealth

v. Nardi, 452 Mass. 379, 391-393 & n.13 (2008); Department of

Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).    See also

Mass. G. Evid. § 703 (2017).   Whether a toxicology report

itself, however, created as part of a routine autopsy,

constitutes testimonial hearsay is, in my view, an open

question.   Compare United States v. Ignasiak, 667 F.3d 1217,

1231-1232 (11th Cir. 2012) (autopsy reports testimonial because

"made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for

use at a later trial" [citation omitted]), with State v. Mattox,

     1
       Of course, an expert may testify to facts of which he or
she has personal knowledge, if the testimony is otherwise
admissible.
                                                                   2


373 Wis. 2d 122, 136, 145 (2017) (toxicology report requested by

medical examiner conducting autopsy was not testimonial because

"primary purpose was to identify the concentration of the tested

substances in biological samples . . . as part of [the] autopsy

to determine the cause of death -- not to create a substitute

for out-of-court testimony or to gather evidence . . . for

prosecution"), and People v. Leach, 2012 IL 111534, ¶ 137

(autopsy report not testimonial because primary purpose was not

to provide evidence in criminal case).

    The court does not -- and need not -- resolve today whether

a toxicology report itself conducted as part of an autopsy

constitutes testimonial hearsay.   See Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 311 n.1 (2009) ("[W]e do not hold,

and it is not the case, that anyone whose testimony may be

relevant in establishing the chain of custody, authenticity of

the sample, or accuracy of the testing device, must appear in

person as part of the prosecution's case").   See also Williams

v. Illinois, 567 U.S. 50, 86 (2012) (Breyer, J., concurring)

(raising "difficult, important" question as to "[h]ow . . . the

[c]onfrontation [c]lause appl[ies] to the panoply of crime

laboratory reports and underlying technical statements written

by [or otherwise made by] laboratory technicians").   If such a

report does not constitute testimonial hearsay and is otherwise

properly admitted in evidence, an expert would be permitted to
                                                                  3


testify to its contents during direct examination.   See Nardi,

452 Mass. at 391-393 & n.13.
