By the Court (CYPHER, KANTROWITZ & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, having been convicted of the offense of deriving support from the earnings of a minor prostitute, G.L.c. 272, § 4B, appeals from the order of a Superior Court judge denying his motion for a new trial. As grounds that justice was not done in his trial, Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), the defendant contends that it was error for the trial judge to have allowed a police detective to give hearsay testimony supporting his opinions about the methods typical of street prostitution. In addition, he contends that he received ineffective assistance from his trial counsel based on his failure to object to evidence concerning the age of the minor in question and to investigate and offer evidence explaining the purportedly legitimate source of the large amount of cash found in his possession by police when he was arrested. As we discern no error or abuse of discretion in the denial of the motion, we affirm. Turning to the defendant's claims of error in the admission of expert testimony from Detective Hall concerning the methods of street-level prostitution rings, we note that these claims were not raised on his direct appeal. Therefore, we review to determine whether a substantial risk of a miscarriage of justice was thus created, and find that there was not. See Commonwealth v. Curtis, 417 Mass. 619, 624–625 n. 4 (1994); Commonwealth v. Simmons, 448 Mass. 687, 690–691 (2007).
On his direct appeal, we affirmed this judgment in an unpublished memorandum and order issued pursuant to our rule 1:28. See Commonwealth v. Barbosa, 76 Mass.App.Ct. 1115 (2010).
The defendant also complains for the first time on this appeal that the prosecutor engaged in improper argument. As this argument was not raised in his motion before us on appeal, we need not consider it here. See Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982).
First, the defendant has not shown an abuse of discretion either by the motion or the trial judge in connection with the defendant's claim that Hall lacked any qualification to give expert testimony on this subject. The trial judge permitted Hall to give opinion testimony following defense counsel's out-of-order cross-examination specifically limited to Hall's qualifications. The judge's implicit ruling that Hall was qualified to give expert testimony was amply supported by the evidence and well within his discretion, notwithstanding that Hall had not published or lectured on the subject, nor obtained formal schooling particularized to the study of prostitution. “The criterion of the judge is whether the witness possesses sufficient skill, knowledge or experience in the field of his testimony that the jury may receive appreciable assistance from it.” Commonwealth v. Boyd, 367 Mass. 169, 182 (1975).
The trial judge had resigned prior to the filing of the motion at bar.
We also fail to discern a substantial risk of a miscarriage of justice, as contended by the defendant, arising from Hall's opinion testimony. The case of Commonwealth v. Jaime, 433 Mass. 575, 576–578 (2001), and its progeny determined, relying upon Proposed Mass.R.Evid. 705 and its Federal cognate, that it is error to elicit, during direct examination of an expert witness, the facts and data which underlie the expert's opinion, unless so directed by the judge (a ruling that may be inferred from the judge having overruled the defendant's objections). See Mass. G. Evid. § 705 (2012). Here, however, we view Hall's testimony to be less about the specifics of his conversations with prostitutes and more about the generalized patterns of prostitution operations as derived from those conversations. Moreover, no conversations from individuals involved in the facts of this case were offered, contrary to the facts in Jaime. See Jaime, supra at 577. Among the bases for the opinions at issue here, we view those claimed by the defendant as hearsay as generally filtered through the lens of Hall's training and experience.
Last in connection with the defendant's claim of improper expert testimony, the mere fact that the opinions offered by Hall partially overlapped with facts developed through the observations of other witnesses doesn't render Hall's opinions inadmissible. While we recognize that our caselaw advises caution in accepting opinion testimony from percipient witnesses, such testimony is not disqualified simply for that reason. “Questions grounded in previously admitted evidence may be posed to an expert witness calling for an opinion within the expert's field of expertise, even if the witness's reply thereby touches on the ultimate issue of the case. The only limitation is that the subject matter discussed be within the witness's field of expertise and that the witness not directly express his views on the defendant's guilt” (emphasis original). Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 579 (1998). In offering his opinions, Hall neither commented on the ultimate issue of the defendant's guilt nor tracked the percipient observations about which he testified; indeed, in several instances, his opinions included descriptions of typical methods different than those he witnessed. Moreover, the opinion testimony was elicited prior to percipient observations and no attempt was made to link the opinions to his observations. The defendant has failed to demonstrate error creating a substantial risk of a miscarriage of justice by the introduction of this evidence.
The defendant's claim of ineffective assistance of counsel for failure to object to the testimony from the minor's Department of Social Services social worker about the minor's age and date of birth was raised in his direct appeal. While this court addressed the issue of the age of the minor in terms of the evidence being sufficient, citing Commonwealth v. Asmeron, 70 Mass.App.Ct. 667, 672–673 (2007), it may be inferred that the defendant's claim of ineffective assistance of counsel was considered and rejected. See, e.g., Commonwealth v. Gambora, 457 Mass. 715, 731 n. 24 (2010). Therefore, the failure of counsel to object to this testimony did not result in ineffective assistance of counsel. See Commonwealth v. Curtin, 417 Mass. at 625 n. 4.
Lastly, the motion judge was within her discretion to disbelieve the affidavits of the defendant and of Daniel Centeio. In his own affidavit, the defendant alleged that he had provided to “trial counsel” an innocent explanation of the source of the cash found on his person when arrested. Notably, the defendant failed to provide critical support, especially the name of and an affidavit from the attorney whom he allegedly told about the source of the cash. The docket entries show that he was represented during the course of this case by at least five separate attorneys at different times. Moreover, no affidavit from his actual trial counsel was obtained or filed with the motion. Ineffective assistance claims about interactions with trial counsel are particularly weak when not supported by an affidavit from trial counsel or an explanation for its absence. See Commonwealth v. Gonzalez, 443 Mass. 799, 809 n .10 (2005); Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 640–641 (2007).
Order entered November 21, 2011, denying motion for new trial affirmed.
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