COMMONWEALTH vs. GERMAN MUNOZ.

LENK, J. The defendant appeals from his conviction of trafficking in over fourteen grams of cocaine, G. L. c. 94C, § 32E. [Note 1] He contends that the Commonwealth violated his right to confront the witnesses against him when it introduced evidence from laboratory drug tests through the testimony of a substitute analyst rather than through the analyst who performed the tests. He contends further that the trial judge erred in admitting certain hearsay statements. Finally, he argues that his trial counsel was constitutionally ineffective. Although much of the challenged testimony was erroneously admitted, this testimony did not create a substantial risk of a miscarriage of justice; nor was the defendant denied the effective assistance of counsel. We therefore affirm the conviction.

1. Facts. The following are the facts the jury could have found; we reserve certain details for later discussion. On March 2, 1994, Pittsfield police officers stopped a car driven by the defendant. The car was leased in the names of two other men, one of whom, the front seat passenger, was sixteen years old. Officers searched the vehicle and found three large plastic bags that contained a substance resembling "crack" cocaine. The police also seized a pager and two "walkie-talkies" from the vehicle.

The defendant and his passenger were then arrested and given Miranda warnings. [Note 2] In the presence of another Pittsfield police officer, Detective Terrence Donnelly asked the defendant whether the police had found all the cocaine in the vehicle. The defendant told Donnelly, "I think that there [were] only the three bags." Donnelly recorded this statement in a near contemporaneous report, which was reviewed by the other officer, Sergeant Glen Decker.

The same evening, Donnelly "field tested" the substance in the seized bags and weighed the substance and bags on a scale,

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apparently in Decker's presence. [Note 3] The test indicated that the substance was cocaine. [Note 4]

The seized bags were sent to the Department of Public Health drug laboratory (laboratory), where samples of their contents were weighed and tested by Paul Jaszek, who was then a senior chemist, or supervisor, at the laboratory. Jaszek's analysis proceeded in two parts. First, Jaszek verified the net weight of the substance by subtracting the estimated weight of the plastic bags, based on a sample of them, from the gross weight of the bags and the substance combined. He recorded this net weight as 19.90 grams. Next, Jaszek confirmed that the seized substance was in fact cocaine. He did this by running samples of the substance through a gas chromatograph and a mass spectrometer. The chromatograph generated a printout of the "retention times" of each compound in the sample. The mass spectrometer generated a printout of the "fragmentation pattern" of the sample. Both sets of results were consistent with the expected results for cocaine.

Trial was scheduled for July 7, 1994. However, the defendant defaulted, remaining a fugitive until February, 2010. In the interim, Jaszek retired and Donnelly passed away. Donnelly's reports, Jaszek's notes and test results, and the machine data generated by Jaszek's tests were preserved.

At the May, 2010, trial, the laboratory's then senior chemist, James Hanchett, testified in the retired Jaszek's place. Hanchett had been a drug analyst for over thirty years, the majority of those as Jaszek's colleague. Jaszek had trained Hanchett and for some period of time had been Hanchett's supervisor.

Hanchett's testimony covered (1) the procedure Jaszek followed in weighing and analyzing the contents of the bags; (2) the conclusions that Jaszek drew from this analysis; and (3) the conclusions that Hanchett "would have made" in Jaszek's position. Because Hanchett did not retest or reweigh the seized substance

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himself, his testimony was based on information contained in Jaszek's notes and reports as well as the machine printouts generated by Jaszek's analysis. [Note 5] After Hanchett testified that he had reviewed each of these documents, the prosecutor asked him:

Q.: "Again, in reviewing that data, can you form an independent opinion that the substance[] that went through the machine after reviewing the data was Class B, cocaine?"

A.: "Yes, I would have made the same decision as [Jaszek] made calling it cocaine . . . ."

Hanchett stated also that he agreed with Jaszek's method of weighing the seized substance, and that he too would have concluded the substance weighed 19.90 grams.

The Commonwealth's other main witness was Decker, who testified to the events of the night of the defendant's arrest, sixteen years prior to trial. Decker stated that he could not recall the details of the conversation he witnessed between Donnelly and the defendant. He was then allowed to read a redacted version of Donnelly's report to the jury. The report, however, did more than summarize the conversation Decker had forgotten. It recited the full details of the stop, search, booking, and arrest, details that Decker was able to testify to without assistance from Donnelly's report. Subsequently, the defendant entered a redacted copy of Donnelly's report into evidence. Defense counsel believed that the report tended to show that the defendant's passenger was the true owner of the drugs, consistent with the defendant's theory at trial.

2. Discussion. a. Standard of review. We consider first the standard of review applicable to the defendant's two claims of error: violation of his confrontation clause rights through Hanchett's testimony and improper admission of hearsay testimony through Decker's use of recorded recollection.

While trial counsel objected to Hanchett's testimony, it was on the basis of lack of foundation and was not targeted at the

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propriety of such testimony under the confrontation clause. [Note 6] Accordingly, the claim was not preserved. As to the hearsay claim, with one exception, see note 16, infra, the defendant did not object to the admission of the statements in police reports that he now contends are hearsay. Thus, this claim also was not preserved.

Accordingly, we review only for a substantial risk of a miscarriage of justice, that is, to determine "if the evidence and the case as a whole . . . [leave] us with a serious doubt that the defendant['s] guilt [has] been fairly adjudicated." Commonwealth v. Vasquez, 456 Mass. 350, 356 (2010), quoting Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997).

b. Substitute analyst's testimony on the identity of the cocaine. The defendant's primary argument on appeal is that Hanchett's testimony as to the weight and composition of the cocaine seized from the vehicle violated the defendant's right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution. See Bullcoming v. New Mexico,131 S. Ct. 2705, 2713 (2011) (Bullcoming). The Commonwealth does not dispute that Hanchett's testimony on direct examination as to Jaszek's conclusions and the raw data generated by Jaszek violated the defendant's right of confrontation. See Commonwealth v. Barbosa, 457 Mass. 773, 786 (2010) (Barbosa).

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However, the Commonwealth maintains that, consistent with Barbosa, the confrontation clause did not prevent Hanchett from testifying as to his independent opinion on the weight and composition of the cocaine. By contrast, the defendant maintains that the United States Supreme Court's recent decision in Bullcoming precludes such testimony.

i. Validity of Barbosa in light of Bullcoming. The Sixth Amendment, applicable to the States through the Fourteenth Amendment to the United States Constitution, requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." [Note 7] The confrontation clause "applies to 'witnesses' against the accused -- in other words, those who 'bear testimony.' . . . 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " See Crawford v. Washington, 541 U.S. 36, 51 (2004), quoting 2 N. Webster, An American Dictionary of the English Language (1828).

In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz), the United States Supreme Court addressed whether the conclusions of forensic scientists constitute testimonial statements. The Court determined that certificates verifying the conclusions of such tests "are incontrovertibly a 'solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Id. at 2532, quoting Crawford v. Washington, supra. Thus, the Court held, such certificates cannot be admitted in evidence without providing defendants with an opportunity to confront the forensic scientists who author them.

Nevertheless, it was "not plain . . . whether Melendez-Diaz, which involved the admission into evidence of affidavits containing testimonial hearsay, would necessarily require the government to call [an analyst] to testify [where] her report [is] not admitted into evidence," but is instead relied on as the basis for the independent opinion of a second analyst. United States v. Pablo, 625 F.3d 1285, 1295 (10th Cir. 2010).

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In light of this uncertainty, our cases since Melendez-Diaz have distinguished between a substitute analyst's testimony as to independent opinions based on data generated by a nontestifying analyst, and a substitute analyst's testimony as to the testing analyst's reports and conclusions. [Note 8] For example, in Barbosa, supra, we concluded that a substitute deoxyribonucleic acid (DNA) analyst should not have been allowed to read into evidence the results of DNA testing where the relevant tests were performed by an absent colleague. We concluded also that it was error to allow the analyst to testify as to the conclusions her absent colleague drew from that data. Id. However, we held that the substitute analyst could testify as to her own conclusions derived from the data generated by the original analyst's tests. Id. See Commonwealth v. Nardi, 452 Mass. 379, 390-391 (2008) (independent opinion of substitute medical examiner).

The defendant suggests that Barbosa is called into question by Bullcoming, supra, the most recent decision of the United States Supreme Court to address the admissibility of forensic evidence under the confrontation clause. Yet, unlike Barbosa and unlike the instant case, Bullcoming is not a case "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." [Note 9] See Bullcoming, supra at 2722 (Sotomayor, J., concurring in part). In Bullcoming, the analyst who had performed a blood alcohol test on the defendant's blood sample was placed on unpaid leave shortly before trial. [Note 10] Over objection, the State admitted the testing analyst's report as a business

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record through a testifying analyst. Id. at 2712. The Court observed that the substitute analyst did not purport to offer any " 'independent opinion' concerning Bullcoming's [blood alcohol concentration]" on which the substitute could be cross-examined. Id. at 2716. Rather, the evidence against the accused was limited to the testing analyst's "certification," which was directly introduced in evidence. Id. The Court remanded the case for a determination whether the admission of the report was harmless error. Id. at 2719 & n.11.

The testimony offered by the prosecutor in Bullcoming would have been equally improper under long-standing Massachusetts law. See Commonwealth v. Nardi, supra at 392-393, quoting Commonwealth v. McNickles, 434 Mass. 839, 857 (2001) ("We adhere to our position that an expert witness may not, on direct examination, present the specifics of hearsay information on which she has relied in reaching her opinion"). Thus, in Barbosa, supra at 786, while we permitted the substitute analyst's independent opinion testimony, we specified that "[t]he defendant's right of confrontation was . . . violated by [substitute] testimony . . . which informed the jury that [the testing analyst] also shared [the substitute's] opinion." This, essentially, was a different way of stating the central holding of Bullcoming: that a substitute analyst cannot testify to, or otherwise introduce, the original analyst's reports and conclusions on direct examination. Because Barbosa is in accord with this holding, the defendant errs in maintaining that Bullcoming prevents its continued application.

The defendant argues that the opinion testimony of a substitute analyst cannot fairly be characterized as "independent," because the accuracy of any such opinion depends entirely on the accuracy of the testing analyst's procedure. See Derr v. State, 422 Md. 211 (2011). He contends that this dependence prevents meaningful cross-examination of the substitute analyst, who cannot speak to the accuracy of the testing process and procedures actually employed.

A substitute analyst who offers an independent opinion can, however, be cross-examined meaningfully in at least two ways.

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First, such an analyst is subject to cross-examination on the general risk of error in forensic testing, whether introduced through carelessness, incompetence, or fraud. See Melendez- Diaz, supra at 2536-2537 (discussing such risks); National Research Council, Strengthening Forensic Science in the United States: A Path Forward 37 (2009) (noting risk that "scientific evidence [could] carr[y] a false sense of significance"). Here, for example, among other possible sources of error, the defendant questioned Hanchett on the risk that the testing analyst might have tested the wrong vial, the general level of training of analysts at the laboratory, and the quality of the equipment used.

Second, a substitute analyst, basing an independent opinion on data generated by a prior analyst, can be cross-examined on many of the specific risks that could lead to an erroneous conclusion concerning the identity and weight of a substance at issue in a particular case. [Note 11] Contrast Bullcoming, supra at 2715 (noting testifying analyst who did not offer independent opinion could not be cross-examined as to "the particular test and testing process . . . employed," with which he had no familiarity). An expert witness offering an independent opinion, however, can permissibly rely on data only to the extent that this data is "reasonably relied upon by experts in the particular field in forming opinions." Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 527-528 (1986), quoting Proposed Mass. R. Evid. 703. Reasonable reliance, in turn, implies that the expert will have ascertained that the data on which he or she relies are adequate and appropriate to the task and were prepared in conformity with accepted professional -- here scientific -- practices and procedures. See Barbosa, supra at 791 ("a conclusory opinion alone may not be a permissible basis on which an expert may rest an opinion"). See also Palandjian v. Foster, 446 Mass. 100, 107-108 (2006) ("even if the methodology employed by an expert is generally reliable, . . . the trial judge, acting as gatekeeper, [must] determine whether the conclusions . . . have a reliable factual basis"); Wing v. Commonwealth,

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359 Mass. 286, 290 (1971) (testimony based on hearsay study admissible where expert had "verified" study and was thus not offering opinion "of another").

A substitute analyst may accordingly be cross-examined on the data on which that analyst purports to have relied reasonably, the basis on which he or she concluded that such data were adequate and appropriate to the task, and the basis for concluding that the data had been prepared in conformity with relevant accepted professional standards, inquiries that implicate the manner in which the testing analyst performed his or her work. [Note 12] See generally In re A.B., 999 A.2d 36, 43 (D.C. 2010).

Indeed, cases since Barbosa illustrate meaningful use of cross-examination of a substitute expert analyst offering independent opinion testimony not just on the general risks of error inherent in forensic testing, but also on the strength of the particular evidence against a defendant. See, e.g., Commonwealth v. Greineder, 458 Mass. 207, 239 (2010) ("Defense counsel made extensive use of the data prepared by [original DNA analyst]" to buttress "theory that a third party committed the murder"); Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 343 (2011) ("defense counsel engaged in a detailed cross-examination of [substitute analyst], eventually placing significant weight on [that analyst's] testimony in his closing argument").

Cross-examination of a substitute analyst with an independent opinion will not, of course, address every risk of bias or error in the forensic testing forming the basis of that opinion. Cf. Melendez-Diaz, supra at 2537 (cross-examination may cause "the analyst who provides false results . . . , under oath in open court, [to] reconsider his false testimony"). However, the Constitution has not yet been construed to require the testimony of every person who might conceivably have compromised the reliability of the evidence introduced against a defendant. See id. at 2532 n.1 ("not . . . everyone who laid hands on the evidence must be called").

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Of necessity, the adequacy of a defendant's opportunity for meaningful cross-examination of a particular expert witness can be ascertained only on a case-specific basis. As a general proposition, however, and consistent with Barbosa, we discern no reason to conclude either that cross-examination of a substitute analyst offering an independent opinion cannot be meaningful or that the opinion offered cannot fairly be characterized as independent.

ii. Applicability of Barbosa. The defendant argues that Barbosa should not be extended from DNA testing to the drug composition testing performed by Jaszek. He argues that forensic drug test results are so straightforward that the substitute analyst conducts no "meaningful analysis" but instead serves as a mere conduit for conclusions compelled by raw data generated by the first analyst.

The defendant provides no support for his assertion that the results of drug composition tests require less independent interpretation than the results of DNA tests. [Note 13] There is nothing in the appellate record as to the content of the notes, test results, machine generated data, or reports reviewed by Hanchett, and the defendant makes no argument concerning how these might differ from the counterpart material reviewed by a DNA analyst. [Note 14] Accordingly, the defendant has not shown any reason that Barbosa should be distinguished in this case.

We note also that Hanchett had a "personal, albeit limited, connection to the scientific test at issue." Bullcoming, supra at 2722 (Sotomayor, J., concurring in part). As a senior chemist

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with over thirty years' experience at the laboratory, Hanchett was intimately familiar with its policies and procedures. Further, while Hanchett was not Jaszek's supervisor or otherwise responsible for reviewing Jaszek's work, compare Pendergrass v. State, 913 N.E.2d 703, 708 (Ind. 2009), Hanchett had a long working relationship with Jaszek, which terminated only at Jaszek's retirement. Accordingly, Hanchett was likely familiar with Jaszek's reputation for veracity and diligence. Compare Bullcoming, supra at 2715 (noting substitute analyst "had no knowledge . . . whether incompetence, evasiveness, or dishonesty accounted for [testing analyst's] removal from his work station"). Compare also Commonwealth v. Walker, 442 Mass. 185, 198 (2004) (discussing scope of permissible reputation evidence).

Hanchett's testimony reflects that he was not merely describing Jaszek's tests and results to the jury but also stating his independent view on the import of those results. Certainly, many of the questions that the prosecutor posed to Hanchett were improper, even though they did not elicit objection at trial. The prosecutor inquired extensively as to the testing procedures that Jaszek used or likely would have employed and failed to target with sufficient precision Hanchett's independent opinion on the identity of the sample. Instead, Hanchett was allowed broad leeway to opine on what "Paul [Jaszek] tested" and the "decision[s] . . . Paul made."

Nevertheless, the prosecutor did repeatedly ask Hanchett whether he "work[ed] through the numbers" himself, whether he "form[ed] an independent opinion" as to the composition of the tested sample, and whether, "based on [his] observations and reading, . . . each of those six individual pieces that were sampled were all positive for . . . cocaine." These questions required Hanchett to do more than merely reiterate Jaszek's conclusions. Thus, on more than one occasion, the substitute analyst was asked for, and provided, his independent, expert opinion. There was no confrontation clause error in the admission of this portion of Hanchett's testimony. See Barbosa, supra.

c. Substitute analyst testimony on the weight of the cocaine. While Hanchett could testify permissibly to his independent opinion on the identity of the seized substance as cocaine, his opinion on the weight of the substance was admitted in error.

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Where the conclusion to be drawn from given data is obvious to a layperson, expert testimony does not assist the trier of fact, and opinion evidence is therefore improper. See Commonwealth v. Little, 453 Mass. 766, 768 (2009). As discussed, supra, Jaszek's recorded observations of weight were inadmissible through Hanchett on direct examination. See Barbosa, supra at 786. Hanchett's testimony did not augment these otherwise inadmissible data by expertise. Rather, he performed simple arithmetic well within the jury's grasp. See Bullcoming, supra at 2714. Accordingly, it was error to allow Hanchett to testify to the weight of the drugs and to opine that this weight was almost six grams over the statutory limit. [Note 15]

d. Recorded recollection. The Commonwealth concedes that large portions of the two police reports read into evidence by Decker were admitted improperly as Decker's recorded recollection. Admission of evidence under the past recollection recorded exception to the hearsay rule "is only proper 'if . . . the witness has no revivable recollection of the subject.' " Commonwealth v. Morgan, 449 Mass. 343, 366 (2007), quoting Commonwealth v. Nolan, 427 Mass. 541, 543 (1998). Yet, Decker testified only that he had forgotten details of the defendant's conversations with Donnelly; he did not assert that he lacked a revivable recollection of other aspects of the case also discussed in the reports. Accordingly, the reports' descriptions of the circumstances of the defendant's arrest, the search of the vehicle the defendant was driving, the fruits of that search, the booking process, and the false name provided by the defendant at booking each constituted inadmissible hearsay.

e. Substantial risk of miscarriage of justice. As previously noted, all but one of the defendant's errors were raised for the first time on appeal. [Note 16] Thus, the defendant is entitled to relief only "if we have a serious doubt whether the result of the trial

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might have been different had the error [s] not been made." Commonwealth v. Russell, 439 Mass. 340, 345 (2003), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). "Errors of this magnitude are extraordinary events and relief is seldom granted." Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

This was not a case where the evidence was "limited to the word of the police," Commonwealth v. Martin, 57 Mass. App. Ct. 272, 276 (2003), but one in which the properly admitted evidence of guilt was overwhelming. See Commonwealth v. Tyree, 455 Mass. 676, 704 n.44 (2010). As to the identity of the seized substance as cocaine, the jury were aware of Hanchett's properly admitted independent opinion on the identity of the seized substance, as well as Decker's unchallenged testimony as to the police field testing. Contrast Commonwealth v. Vasquez, 456 Mass. 350, 364 (2010) (admission of certificate of drug analysis was prejudicial error where no field testing was conducted and Commonwealth's witnesses explicitly relied on accuracy of certificate). As to the weight of the cocaine, Decker testified from his personal knowledge that the police officers themselves weighed the cocaine, estimating its weight at twenty grams. [Note 17] As to the defendant's constructive possession of the cocaine, the properly admitted portions of the Donnelly report contained statements by the defendant suggesting that he was aware of the presence of cocaine in the vehicle. These statements were "further support[ed]" by evidence of the defendant's consciousness of guilt: the defendant's prior default and his use of at least two aliases in interactions with the police. See Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 783 (2009).

Further, "[t]he admission of cumulative evidence does not commonly" call a guilty verdict into question. Commonwealth v. Bart B., 424 Mass. 911, 915 (1997), and cases cited. The reports relied on by Decker as recorded recollections were

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cumulative of Decker's testimony from his direct recollection. Similarly, Hanchett's testimony as to the weight of the sample was cumulative of Decker's testimony on weight.

Finally, as we have observed in other contexts, any prejudice resulting from the erroneous admission of evidence can be "limited by defense counsel's . . . use" of that evidence. Commonwealth v. Medeiros, 456 Mass. 52, 62 (2010). Here, the defendant was able to use Jaszek's absence at trial to cast doubt on the results of the laboratory testing. [Note 18] Similarly, the defendant relied on the more detailed of the two reports to argue that the police had no evidence suggesting that the drugs were owned by the defendant rather than his passenger. [Note 19] Thus, the improperly admitted testimony assisted the defendant in challenging aspects of the Commonwealth's case.

We therefore conclude that those portions of testimony by Hanchett and Decker that were admitted in error did not give rise to a substantial risk of a miscarriage of justice.

f. Ineffective assistance of counsel. "[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), quoting Commonwealth v. Alamides, 37 Mass. App. Ct. 339, 344 (1994). "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). For such a claim to be successful, counsel's inadequate performance must "appear [] indisputably on the trial record." Commonwealth v. Zinser, supra at 811.

As noted, the defendant's theory at trial was not that the

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substance seized by the police was something other than cocaine, but that the seized drugs belonged to the passenger of the vehicle the defendant was driving. Because of this strategy, trial counsel did not seriously contest the weight and identity of the drugs. Instead, counsel directed the jury's attention to evidence supporting the Commonwealth's position that cocaine was found in a car the defendant was driving, to argue that nothing in that evidence conclusively demonstrated that the drugs belonged to the defendant rather than his passenger. On appeal, the defendant contends that this strategy was manifestly unreasonable. [Note 20]

"A defendant is not deprived of the effective assistance of counsel simply because defense counsel's reasonable strategic choices fail to produce a verdict of not guilty." Commonwealth v. Lykus, 406 Mass. 135, 139 (1989). However, counsel's strategic judgment cannot have been "manifestly unreasonable when made." Commonwealth v. LaCava, 438 Mass. 708, 713 (2003), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). A strategic judgment is likely unreasonable if trial counsel's strategy deprived the defendant of "an otherwise available, substantial ground of defence." Commonwealth v. Hill, 432 Mass. 704, 719 (2000), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). But "[n]either ineffectiveness nor a likelihood of a miscarriage of justice arise from counsel making the best he can out of the circumstances of the crime." Commonwealth v. Hung Tan Vo, 427 Mass. 464, 471 (1998).

Albeit before the United States Supreme Court decided Bullcoming, it was clear at the time of trial that Hanchett's testimony as to Jaszek's reports and conclusions was inadmissible under Massachusetts law. See Barbosa, supra at 786. Nevertheless, even if the defendant had objected to this testimony, the Commonwealth would have been permitted to present Hanchett's independent opinion testimony, corroborated by the

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results of the field testing conducted by Decker and his partners. See id. In light of this admissible evidence, it was not unreasonable for counsel to conclude that a jury would have been more likely to believe that the drugs did not belong to the defendant than that the substance was not in fact cocaine. In sum, the trial record does not indisputably show that trial counsel's strategic choice was manifestly unreasonable when made.

Judgment affirmed.