Commonwealth v. Lezynski
Commonwealth v. Lezynski
Opinion of the Court
The defendant, Robert S. Lezynski, was tried before a jury in the Superior Court on indictments charging him with manslaughter and possession with intent to distribute a class B controlled substance (fentanyl)
Background. The jury could have found as follows from the evidence presented at trial. In December, 2004, the defendant was employed as a truck driver for Hiltz Waste Disposal (Hiltz), a company located in Gloucester that performed waste disposal and recycling services. Beaulier also was employed by Hiltz as both a truck driver and a “lumper,” a laborer responsible for picking up curbside waste and recycling and loading it onto the truck.
On December 17, 2004, the defendant and Beaulier, along with other employees, attended the Hiltz annual Christmas party held at the company’s maintenance facility. The party began sometime after 5 p.m. About a week before the party, the defendant reported to his coworker Lee Hopkinson that he had discovered several “morphine patches”*
By the party’s end, Beaulier — who had smoked marijuana before the party and who also had been drinking beer both before and throughout the party — was extremely intoxicated. The defendant drove Beaulier and Beaulier’s girl friend, Gina Genest, to Beaulier’s home. When they arrived, Beaulier was lying in the back seat of the car, unresponsive and perceived by Genest to be “passed out.” The defendant and Genest left him there and went into Beaulier’s house for some time, where the defendant produced a fentanyl patch and asked Genest if she wanted to “do one.” Genest returned to the car and, noting that Beaulier remained unresponsive in the back seat, telephoned 911 for emergency assistance. Beaulier was transported to the hospital and died shortly thereafter. The cause of death was acute fentanyl and alcohol intoxication.
At the defendant’s trial, Dr. George Behonick, the director of forensic toxicology for the department of hospital laboratories at the University of Massachusetts Memorial Health Care System (UMass Memorial), appeared as an expert witness for the Commonwealth. In his direct examination, he testified that a “front line” analyst at the UMass Memorial laboratory performed an immunoassay analysis as well as a “whole blood comprehensive drug screen”; the drug screen had yielded a “match” for fentanyl; and the sample was then referred to National Medical Services (NMS) laboratory, a private laboratory in Pennsylvania, for quantitative analysis. Dr. Behonick further testified to the results of the toxicology report prepared by the Pennsylvania laboratory — 6.5 and 5 nanograms per milliliter of fentanyl and the metabolite norfentanyl respectively — and opined that these results were consistent with a “lethal” outcome. The defendant did not object to Dr. Behonick’s recitation of the results of the laboratory analyses performed by the analysts at the UMass
The jury found the defendant not guilty of manslaughter but guilty of the drug charge. The Appeals Court concluded that Dr. Behonick’s verbatim reading of the toxicology report from the NMS laboratory into the record “was error akin to that identified in Melendez-Diaz v. Massachusetts," 557 U.S. 305 (2009) (Melendez-Diaz), and violated the defendant’s right of confrontation under the Sixth Amendment to the United States Constitution. The Appeals Court concluded that, although the defendant did not object to the admission of the evidence at trial, where the defendant’s trial took place after the decision of this court in Commonwealth v. Verde, 444 Mass. 279 (2005) (Verde), but before the United States Supreme Court’s decision in Melendez-Diaz, the correct standard of review was harmless beyond a reasonable doubt, and further that the Commonwealth met that standard. We granted the defendant’s application for further appellate review limited to whether admission of the toxicology evidence, in the manner described above, required reversal.
Discussion. We agree with the Appeals Court that the admission of Dr. Behonick’s testimony on direct examination reciting the results of the toxicology analysis performed by the Pennsylvania laboratory as to the concentration of fentanyl in the tested sample of Beaulier’s blood was error of constitutional dimension, a point on which the defendant and the Commonwealth also agree. See Commonwealth v. Greineder, 458 Mass. 207, 237 (2010), S.C., 464 Mass. 580, 582-584 (2013) (deoxyribonucleic acid [DNA] testing results); Commonwealth v. Durand, 457 Mass. 574, 584-585 (2010), and cases cited (autopsy report).
It does not necessarily follow, however, that even though this
The toxicology evidence at issue here is different. At the time of the defendant’s trial, Massachusetts evidence law had long precluded an expert witness, on hearsay grounds, from testifying on direct examination to underlying test results or other facts on which his or her opinion was based unless the witness
To prove the defendant guilty of unlawful possession of a class B substance (fentanyl) with intent to distribute, the Commonwealth must prove beyond a reasonable doubt that the defendant (1) knowingly and intentionally (2) possessed a class B controlled substance (fentanyl), (3) with the specific intent to distribute it. Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839-840 (2012), citing Commonwealth v. Gollman, 436 Mass. 111, 116 (2002). Cf. Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426-429 (1985). The results contained in the Pennsylvania laboratory’s toxicology report were highly material to the manslaughter charge, because the presence of fentanyl in Beaulier’s blood, and more particularly its relatively high concentration, bore directly on the cause of his death.
When considered in light of all this evidence,
Judgment affirmed.
Fentanyl is a prescription drug that depresses the central nervous system and is used to treat moderate to severe pain. Fentanyl can be administered externally in the form of a transdermal patch; the patch consists of a gel-like substance
In his testimony Hopkinson described the patches as “morphine patches,” not “fentanyl patches.”
In his appeal to the Appeals Court, the defendant had included a challenge to the sufficiency of the indictment charging him with possession of a class B controlled substance with intent to distribute. The Appeals Court rejected that challenge, and we do not consider it in connection with our limited further appellate review.
The Appeals Court concluded that Dr. George Behonick permissibly could recite in his direct testimony the results of the comprehensive drug screen performed in the laboratory that he supervised. That is incorrect, given that Dr. Behonick did not perform the drug screen. The fact that Dr. Behonick was, in his words, “responsible for the technical oversight of the laboratory,
To a lesser extent, the same is true of Dr. Behonick’s testimony indicating that the “whole blood” drug screen performed at the University of Massachusetts Memorial Health Care System laboratory had identified fentanyl in Beaulier’s blood.
Corroborating Genest’s testimony, a State police trooper testified that the police seized a transdermal fentanyl patch wrapper and a pair of scissors from Beaulier’s kitchen counter during their investigation.
It is true — as the defendant’s trial counsel argued in her closing statement — that the jury could disbelieve all the witnesses who testified to the defendant’s offering fentanyl patches at the Christmas party, but the number of such witnesses and the consistent testimony they offered concerning the defendant’s efforts to distribute the fentanyl patches make that possibility highly unlikely.
Reference
- Full Case Name
- Commonwealth v. Robert S. Lezynski
- Cited By
- 3 cases
- Status
- Published