J. Agnes
HISTORY: The defendant was convicted of one count of
possession of a class A substance (heroin) with intent to distribute, under
G.L. c. 94C, § 32(b), and on an indictment charging trafficking in a controlled
substance (opium or a derivative), under G. L. c. 94C, § 32E(c)(1), where the
defendant was convicted of the lesser included offense of possession of a class
B substance, pills collectively known as Suboxone (combination of buprenorphine
and naloxone). On appeal, the defendant
challenged the admission of expert witness testimony and the sufficiency of the
evidence.
FACTS: During an ongoing investigation of narcotics distribution
in Springfield, a detective observed the defendant arrived at a building where
it appeared that the only occupied apartment was on the second floor and the
focus of the investigation on June 7, 2009.
Police watched the defendant and a group of people have a short
conversation on the front steps of the building and then all followed the
defendant into the building. The same
people left two to three minutes later.
The
detective testified that the people “appeared to be drug-dependent individuals”
based on his ten years’ experience as a narcotics investigator. His experience includes surveillances of drug
sellers and buyers as well as direct participation in drug transactions as an
undercover officer. His described his
preparation for such undercover work by stating that “you…become disheveled
looking…wear old ratty clothes…and try to blend into the environment that you
may be working.” The detective also
said, “you look sick…try to make yourself have the appearance…to be drug
dependent.” According to him, it was
also very important to learn the “street terminology,” and the locations of
drug sales.
In
describing the people waiting outside the building, the detective testified,
“They looked ill, very sickly. People
specifically that are drug dependent to heroin have a very sick appearance to
them. They cough a lot. They are very disheveled, unkempt, and that’s
what led me to believe that they perhaps were customers looking to purchase
illegal narcotics.” He said the
defendant did not have the same appearance as those waiting outside the
building.
With a
search warrant for the apartment, the officers first knocked and announced
their presence before using a battering ram to enter the apartment. The defendant was handcuffed, and two others
in the apartment were also arrested. The
defendant admitted to having five bags of heroin on his person, but also stated
there was no other heroin in the apartment.
In fact, there were eighty-six bags of heroin and a solid chunk of
heroin weighing six grams in a purse on top of the refrigerator. There was also evidence, that the packaging
of the five bags found on the defendant and the eighty-six bags in the purse
were similar in appearance.
There was
correspondence addressed to the defendant at that building on a dresser in a
bedroom along with items used to package and mix heroin, including a box of
baggies similar in appearance to those found on the defendant and in the
purse. A “drug ledger,” a digital scale,
a sifter, and rubber bands were also on top of this dresser. Additionally, there was an unmarked bottle of
pills (Suboxone, a class B substance) found in the top drawer of the
dresser. By using a key in the woman’s
purse, the officers opened a safe in this bedroom that contained $4,296 in
cash.
ISSUE (1): Was the detective’s description of the
individuals’ appearance outside the building impermissible profiling testimony
because it described the characteristics of perpetrators of a crime and
expressed an opinion about the defendant’s guilt?
No. This issue was waived at trial, and was
reviewed solely for a substantial risk of a failure of justice. Admission of expert testimony is mainly at the
trial judge’s discretion and “will be reversed only where the admission
constitutes an abuse of discretion or error of law.” Commonwealth v. Johnson, 410 Mass.
199, 202 (1991). Criminal profile
testimony is an expert’s opinion about certain characteristics common to a
group of people who commit certain crimes.
If a defendant meets the profile of the crime with which he is charged,
it does not prove guilt. A police
officer is allowed to rely on his training and experience to give explanatory
and nonconclusory testimony about common characteristics of street-level
narcotics transactions when it assists a jury.
See Id. Here, the
detective’s testimony concerned the characteristics of drug-dependent heroin
users and not those characteristics of a heroin dealer. The detective did not express an opinion that
the defendant was a drug dealer or about the defendant’s guilt.
The detective’s testimony that the
defendant did not exhibit the characteristics of drug-dependent people provided
support for a conclusion that he was a drug dealer and not a user demonstrates
its helpfulness to the jury. It can be
inferred from this testimony combined with the fact that the defendant used a
key in his possession to let the people into the building, and the same people
left soon thereafter while the defendant stayed in the building that the
defendant was selling drugs. The
detective’s testimony did not interfere with the jury’s fact-finding role and
therefore there was no error in characterizing the people waiting outside the
building where drugs were being sold, as appearing to be drug-dependent.
Issue (2): Was there sufficient evidence to convict the
defendant with constructive possession with intent to distribute the heroin
found in the purse and the pills found in the drawer of the dresser?
Yes. Claims of insufficiency of evidence are
reviewed in the light most favorable to the Commonwealth whether a rational
trier of fact could find all the required elements beyond a reasonable
doubt. Commonwealth v. Latimore,
378 Mass. 671, 676-678 (1979).
Constructive possession requires showing “knowledge coupled with the
ability and intention to exercise dominion and control.” Commonwealth v. Gonzalez, 452 Mass.
142, 146 (2008) quoting from Commonwealth v. Boria, 440 Mass. 416, 418
(2003).
Combining
all of the evidence, a rational fact finder or jury could infer the defendant
participated in the drug trade in that apartment (correspondence with his name
and that building’s address, paraphernalia to mix and package drugs, and the
drug ledger). This includes permitting
the jury to conclude the defendant had knowledge of, as well as the intent and
ability to control the drugs in the apartment including those found in the
purse. When considered along with the
rest of the evidence, the five bags of heroin found on his person were
sufficient to find the defendant guilty of possession with intent to distribute
heroin separately from the heroin found in the purse. Based on the fact that the pills were in the
same dresser that the letters addressed to the defendant were found, a rational
fact finder could infer that he knew of the pills and had the intent and
ability to control them.
JUDGMENT: Affirmed.
(MB)
