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17-P-44 Appeals Court
COMMONWEALTH vs. ADMIRAL SUTHERLAND.
No. 17-P-44.
Hampden. January 19, 2018. - March 19, 2018.
Present: Blake, Neyman, & Ditkoff, JJ.
Controlled Substances. Evidence, Profile, Expert opinion,
Authentication, Chain of custody. Witness, Expert.
Practice, Criminal, Required finding, New trial, Assistance
of counsel.
Indictment found and returned in the Superior Court
Department on October 13, 2010.
The case was tried before John A Agostini, J., a motion for
a new trial was considered by him, and a motion for
reconsideration was considered by him.
Barbara J. Sweeney for the defendant.
David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
BLAKE, J. Following a jury trial in the Superior Court,
the defendant, Admiral Sutherland, was convicted of possession
2
with intent to distribute heroin. Thereafter, he pleaded guilty
to a charge that it was a subsequent offense. His motions for a
new trial and for reconsideration were denied without a hearing.
On appeal, the defendant claims that the admission of improper
so-called "negative profiling" evidence amounted to reversible
error, that there was insufficient evidence that the substance
was heroin, and that it was an abuse of discretion to deny his
motion for new trial. We affirm.
Background. The jury could have found the following facts.
On September 11, 2010, Massachusetts State police Trooper Luis
Rodriguez was conducting a community walk through1 in
Springfield. Rodriguez noticed a black Nissan being driven by
the defendant, who he knew did not have a valid driver's
license. After the defendant parked the Nissan, Rodriguez
arrested him for driving with a suspended license. While
searching the defendant, Rodriguez found a package of
cigarettes, which contained three bundles. Each bundle
contained ten bags of what Rodriguez believed to be heroin.
Rodriguez also found a small bag of what he believed to be
marijuana in the defendant's possession.
1 The community walk through is one of the activities of the
community action team, a task force that is focused on high
crime areas. Rodriguez was with members of the Springfield
police department and community leaders.
3
Within earshot of the defendant, Rodriguez discussed with
another trooper his intention to apply for a warrant to search
the defendant's home. Upon their arrival at the State police
barracks, the defendant asked to use the telephone to arrange
transportation for his daughter. Rodriguez dialed the telephone
number provided by the defendant and handed him the telephone.
The defendant said into the receiver, "They're coming. They're
coming." Rodriguez immediately ended the telephone call and
asked the defendant what he meant. The defendant responded that
he wanted them to get rid of the "contraband" in the apartment.
At trial, Rodriguez, a seven-year veteran of the State
police, testified that when he arrested the defendant, his
appearance was not consistent with symptoms exhibited by drug
addicts Rodriguez had encountered in the past. Without
objection, Rodriguez testified that people looking for drugs
looked like "zombies." He said the defendant was not sweating
profusely, did not have bloodshot eyes, did not appear ill or
gaunt, and was not skinny or unhealthy looking on the day of his
arrest. Rodriguez went on to say that the defendant looked the
same at the time of trial as he did when he was arrested.
Rodriguez did not find any items on the defendant consistent
with personal use of heroin. He testified that, in his
experience, ten bags of heroin were the most he had seen someone
have on his person for personal use.
4
Kenneth Gagnon2 of the Massachusetts State police crime
laboratory testified that the bags Rodriguez recovered from the
defendant were a mixture of heroin, acetaminophen, caffeine, and
quinine or quinidine.
Detective Gregg Bigda of the Springfield police department
testified that he had spent eight years in the narcotics bureau
and had extensive training and experience in investigating
narcotics offenses. He described the manner in which heroin can
be used, including the most common way, through injection. He
described how heroin is prepared for injection, including the
use of a spoon, lighter, and cotton balls. He testified that
heavy heroin users consume anywhere from one to more than twenty
bags a day, and that they spend most of their day looking for
their next bag. Bigda testified that, in his experience, heroin
is typically sold in individual bags for personal use at a cost
of $10 per bag. He indicated that heroin can sometimes be
cheaper if it is purchased in bulk, and that three bundles3 could
cost between $180 and $250.
Bigda also testified that a heroin addict often displays
physical symptoms such as weight loss, poor hygiene, and poor
2 Gagnon testified as a substitute chemist, as Dina
DeFranco, who tested the substances, no longer worked at the
lab. No objection to the substitute chemist was raised at
trial, nor was it an issue raised on appeal.
3 A bundle is ten single-use bags packaged together.
5
dental health. He indicated these symptoms are not easy to
mask, but that some users do not exhibit these symptoms and live
relatively productive lives. He also testified that if someone
had thirty bags of heroin without any drug paraphernalia, the
person was probably selling narcotics, and that people with
bundles of heroin are usually selling, although the vast
majority of low-level drug dealers are also users. In
determining whether someone is selling or using heroin, Bigda
testified that quantity is a significant, but not the only
factor.4
Bigda testified that it is not uncommon to arrest drug
dealers without any money on their person, as dealers tend to
keep their money and drugs separate to avoid losing both if they
are arrested. He also testified that dealers often carry a
small amount of drugs on their person and keep the main quantity
of drugs at a separate location to avoid losing their investment
if arrested. Lastly, he testified that a drug dealer often
carries more than one type of narcotic to sell.
At trial, defense counsel conceded that the substance found
on the defendant was heroin, but contended that it was for
4 Bigda testified that it would be highly unlikely for a
serious addict to buy three bundles at once due to the cost of
such a large purchase.
6
personal use, and not for distribution.5 He stressed that Bigda
did not find any money, pagers, or cellular telephones in the
defendant's possession.
Discussion. 1. Negative profiling evidence. The
defendant argues that the admission of Bigda and Rodriguez's
testimony, which, taken together, indicated that the defendant
did not match the physical description of a drug user, i.e, so-
called "negative profiling" evidence, was error. He relies on
the holding of Commonwealth v. Horne, 476 Mass. 222 (2017), in
support of his claim. Although Horne was decided after this
trial, the Supreme Judicial Court held that the type of evidence
deemed inadmissible there has long been prohibited. As Horne is
not a new rule, it is applicable to this appeal. Compare
Commonwealth v. Libran, 405 Mass. 634, 645 (1989) (retroactive
application of new rule). The Commonwealth concedes, as it
must, that this evidence was erroneously admitted, but argues
that there was no substantial risk of a miscarriage of justice
despite the error.6
5 The jury were instructed on the lesser included offense of
possession. There was no objection to the instructions.
6 Although the defendant argues that he should prevail on
appeal even under the substantial risk of a miscarriage of
justice standard, he also contends that the issue was preserved
and that the prejudicial error standard of review applies. We
disagree. The defendant objected to the first question asked of
Trooper Rodriguez involving "negative profiling," but not to the
subsequent questions and answers. Moreover, this objection was
7
While negative profiling evidence is inadmissible and
"inherently prejudicial," it is not the sole factor to be
considered in determining whether justice miscarried. Horne,
supra at 228. Rather, the error must also "materially
influence[] the guilty verdict," Commonwealth v. Alphas, 430
Mass. 8, 13 (1999) (quotation omitted), and our review of the
record must leave us with "a serious doubt [as to] whether the
result of the trial might have been different had the error not
been made," Commonwealth v. Azar, 435 Mass. 675, 687 (2002). In
Horne, the expert witness testified that crack cocaine users are
generally unkempt, thin, have deteriorating physical
appearances, and poor dental hygiene. Horne, 476 Mass. at 225.
Here, while Bigda's testimony included this type of evidence, he
also provided detailed admissible evidence, which aided the jury
on the question of intent to distribute. See Commonwealth v.
Little, 453 Mass. 766, 769 (2009) ("[A] [n]arcotics
investigator[] may testify as [an] expert[] . . . [and] testify
that in his opinion the amount of [drugs] possessed by the
defendant was not consistent with personal use but was
consistent with an intent to distribute" [quotations omitted]).
sustained and the Commonwealth was instructed to rephrase the
question. Because the defendant failed to object to the
remaining line of questioning (including questions posed to
Detective Bigda), we review to determine whether the error
created a substantial risk of a miscarriage of justice.
8
Bigda highlighted the importance of the quantity of drugs
recovered, the deliberate separation of a smaller quantity of
drugs from both money and a larger quantity of drugs, and the
significance of more than one type of drug being carried by a
purported dealer. He also addressed the unlikelihood that a
user would have three bundles of heroin at one time, simply
because of the cost. This evidence was properly admitted as it
was outside the common knowledge and experience of lay people
and aided the jury in reaching a verdict. See Commonwealth v.
Miranda, 441 Mass. 783, 793 (2004).7
Unlike Horne, where there was scant evidence of intent to
distribute, here there was substantial properly admitted
evidence of distribution. Indeed, the defendant's own words and
deeds established distribution. After his arrest, he created a
ruse about needing to use the telephone to arrange
transportation for his daughter. Once the telephone call was
placed, the defendant instructed the person on the other end of
the telephone to dispose of any additional narcotics and related
materials when he said, "They're coming. They're coming." This
7 Rodriguez's testimony about the defendant's appearance,
with the exception of the reference to drug users appearing to
be "zombie[-like]," was also properly admitted testimony. See
Commonwealth v. Johnson, 410 Mass. 199, 202 (1991) (experienced
detective qualified as expert). Although the use of the word
"zombie[]" gives us pause, we conclude, based on the
overwhelming evidence of intent to distribute, that this wording
did not create a substantial risk of a miscarriage of justice.
9
constitutes strong evidence of consciousness of guilt, something
that was also not present in Horne. See Commonwealth v.
Stuckich, 450 Mass. 449, 453 (2008). Compare Commonwealth v.
Montanez, 410 Mass. 290, 306 (1991) (defendant's flight was
evidence of consciousness of guilt). The jury could have also
considered the ruse and telephone call as evidence of the
defendant's intent to distribute. See Commonwealth v. Perez, 76
Mass. App. Ct. 439, 442 (2010) (defendant's attempt to dispose
of drugs contributed to evidence of intent to distribute).
And, unlike Horne, the Commonwealth did not emphasize the
negative profiling evidence in the closing argument. The focus
was on the properly admitted evidence.8 Contrast Horne, 476
Mass. at 228 (substantial risk of miscarriage of justice where
prosecutor's closing argument began by focusing on defendant's
appearance, and continued to emphasize profiling evidence,
contrasting it with defendant's size, strength, and appearance).
Finally, the judge's instructions to the jury, which they are
presumed to follow, included factors that they could use in
assessing whether the defendant possessed the heroin with the
intent to distribute. The judge did not include in the list of
factors the appearance of the defendant as compared to that of
8 The prosecutor's closing argument discussing the
defendant's appearance comprised one of eleven pages of
transcript, and came at the end of the argument.
10
drug users. See Commonwealth v. Donahue, 430 Mass. 710, 718
(2000) (jury is presumed to follow judge's instructions).
2. Sufficiency of the evidence. The defendant claims the
evidence was insufficient to prove the substance he possessed
was heroin. Although this issue was not contested at trial, the
Commonwealth was required to prove this element, beyond a
reasonable doubt. We view the evidence in the light most
favorable to the Commonwealth. Commonwealth v. Latimore, 378
Mass. 671, 677 (1979).
Rodriguez testified that the packets admitted at trial were
the ones he confiscated from the defendant. Gagnon testified
that the bags admitted at trial were the bags that were tested,
and that they contained heroin. However, the defendant points
to an alleged inconsistency between Rodriguez's testimony and
the physical evidence submitted at trial. Specifically, the
defendant asserts that although Rodriguez testified that he took
thirty blue packets from the defendant, only twenty-eight pink
packets were admitted in evidence at the trial. This argument
fails, as there was no direct testimony that the packets taken
from the defendant were blue. Rather, on cross-examination,
Rodriguez acknowledged that in his police report, he stated the
packets were blue. This testimony was not admissible to prove
the truth of the matter. See Commonwealth v. Costello, 411
Mass. 371, 377 (1991). The jury were entitled to resolve any
11
inconsistencies in Rodriguez's testimony. See Commonwealth v.
Daughtry, 417 Mass. 136, 140 n.1 (1994). Furthermore, when
resolving issues of sufficiency of the evidence, we resolve all
issues of credibility in favor of the Commonwealth. See
Commonwealth v. Walker, 68 Mass. App. Ct. 194, 198-199 (2007).
The defendant's challenge is more properly cast as an
attack on the authenticity of the evidence and the related chain
of custody. As there was no objection to the authenticity, we
review to determine if there was error, and if so, whether it
created a substantial risk of a miscarriage of justice. See
Commonwealth v. McCoy, 456 Mass. 838, 850 (2010). There was no
error. The Commonwealth must show that the evidence had been in
the defendant's possession. See Commonwealth v. Drayton, 386
Mass. 39, 48 (1982). Authenticity is determined by a
preponderance of the evidence. Commonwealth v. Siny Van Tran,
460 Mass. 535, 546 (2011). See Mass. G. Evid. § 901(a) & note
(2017). Authenticity can be established by testimony that the
item is what its proponent represents it to be, or where
circumstances exist that imply the item is what its proponent
represents it to be. Commonwealth v. Nardi, 452 Mass. 379, 396
(2008). The Commonwealth established the authenticity of the
evidence through both methods -- the direct testimony of
Rodriguez and Gagnon's testimony about the bundles' chain of
custody. Any discrepancies in the number of packets and their
12
color go to the weight of the evidence, not its admissibility.
See Commonwealth v. Dale, 86 Mass. App. Ct. 187, 191 (2014).
Similarly, any weaknesses in the chain of custody go to the
weight of the evidence, not its admissibility. Commonwealth v.
Harris, 75 Mass. App. Ct. 696, 706 (2009).
3. Motion for new trial. The defendant contends that
trial counsel failed to notice and exploit discrepancies in the
drug evidence, and that this failure constituted ineffective
assistance, entitling him to a new trial. The motion judge, who
was also the trial judge, denied the motion, ruling that the
bundles were properly authenticated and admitted at trial; that
any flaw or inconsistency in Rodriguez's testimony about the
bundles was for the jury to resolve; and that an objection to
authenticity would have been futile.
In assessing this claim, we must first determine whether
counsel's performance fell below that which might be expected
from an ordinary fallible lawyer. If so, we must determine
whether better work might have accomplished something material
for the defense. Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). We extend special deference to the action of the motion
judge who, as here, was also the trial judge. Commonwealth v.
Leng, 463 Mass. 779, 787 (2012).
Contrary to the defendant's argument, trial counsel did
cross-examine Rodriguez on discrepancies between his report and
13
the evidence. Trial counsel ended his recross-examination as
follows:
Q.: "So when you're looking at the drugs . . . , can you
tell the jury what color you described the packets as?"
A.: "In my report it's blue."
Q.: "Blue. Thank you."9
Trial counsel's decision not to attack the chain of custody
was a reasonable tactical decision, particularly in view of the
strength of the Commonwealth's case. See Commonwealth v. Lally,
473 Mass. 693, 706 (2016) (counsel's strategic decision on focus
of cross-examination was not "manifestly unreasonable"). Trial
counsel focused on the weakness of the Commonwealth's case --
intent to distribute -- particularly where the evidence of
thirty bags of heroin could be for personal use. Trial counsel
was not ineffective for choosing to forgo an argument of
insufficient merit. See Breese v. Commonwealth, 415 Mass. 249,
256 (1993).
Judgment affirmed.
Orders denying motion for
new trial and for
reconsideration affirmed.
9 The packets admitted at trial were pink.