Opinion
15-P-1641
06-08-2017
COMMONWEALTH v. Lance REASON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his convictions of possessing with intent to distribute a class A substance (heroin), subsequent offense, and of doing so in a school zone, alleging a number of trial errors. His principal claim is that the jury trial was infected with prejudice in the admission of "negative profiling" testimony about supposed physical characteristics of drug users, offered by the Commonwealth to prove that the defendant was not an addict and, by implication, was a drug dealer. We conclude that the Supreme Judicial Court's recent decision in Commonwealth v. Horne, 476 Mass. 222, 224-225 (2017), requires reversal of the convictions.
We acknowledge the amicus brief of the Massachusetts Association of Criminal Defense Lawyers, the American Academy of Addiction Psychiatry, the American Society of Addiction Medicine, the Massachusetts chapter of the National Association of Social Workers, and the Legal Action Center.
Background. We recite the pertinent evidence elicited at trial, reserving further details for later discussion. In the midafternoon of November 29, 2012, Detective Peter Chu of the Boston police department was in plain clothes in an unmarked vehicle patrolling in the Downtown Crossing area. He observed a blue Honda Accord pull over and saw the defendant exit from the front passenger seat and walk away from the vehicle. Detective Chu radioed his fellow squad members with a description of the defendant and his location. Within a few minutes, Officer Patrick Byrne, who had received the radio dispatch, informed Detective Chu that the defendant had entered a silver pickup truck. Detective Chu followed the pickup truck for another block and observed it pull over to allow the defendant to exit from the passenger seat. The defendant walked a short distance and entered a convenience store. Detective Chu conducted surveillance for about ten minutes outside the store.
Detective Chu's particular suspicions about the vehicle and the defendant are discussed infra.
In the meantime, Officer Patrick Byrne and his partner followed the pickup truck. They conducted a vehicle stop and inquiry of the driver, who was identified as Mark Juster. During a brief struggle, Juster attempted to swallow what turned out to be three plastic bags of tan powder. Officer Byrne contacted Detective Chu and other members of the squad, informing them that he had recovered drugs from the driver of the pickup truck. Based on this information, Detective Chu and two other officers entered the convenience store and placed the defendant under arrest. As the officers approached, the defendant denied selling any drugs and asked, "did that dude tell you I sold him drugs[?]" After he was transported to the station in a cruiser, police recovered from the floor under the seat where the defendant had been sitting a plastic bag containing eight smaller plastic bags. The bags held a total of two and one-half grams of a tan substance, later determined to be heroin. These bags were "similar in size, shape and texture" to those found in Juster's possession. Police also recovered $280 in cash from the defendant.
At his trial on one count of possession with intent to distribute a class A substance, the defendant raised a personal use defense, arguing that he intended to consume the heroin he possessed and not to sell it. In support, he introduced medical records relating to his care and treatment at a substance abuse treatment center approximately seven weeks before the arrest; the records noted his report that he was using two grams of heroin per day at that time.
The defendant was also tried on a school zone offense in violation of G. L. c. 94C, § 32J.
1. Negative profiling evidence. Prior to trial, defense counsel moved in limine to exclude "all Commonwealth witness testimony about the characteristic appearance, thoughts, actions, or similar information about ‘typical’ drug users or sellers." The motion was denied, although at a pretrial hearing the prosecutor apparently conceded that it would be impermissible for a witness to testify that he believed that Juster was a drug user.
Nevertheless, at trial, three Commonwealth witnesses testified to Juster's physical appearance. Officer Byrne observed Juster to be "a little bit dirty, disheveled, a little gaunt looking [and] just not well put together." Officer Linehan described him as "very thin," "pale skinned," with a "thin frame" and "sunken face" to the point where "you could see his cheekbones." Officer Brian Mahoney, who booked Juster at the station following his arrest, told the jury that Juster was "frail, his cheekbones [were] out and his face was sort of sunken in. You could tell his eyes [were] sort of, like he had maybe lost weight, a lot of weight recently." Upon further inquiry by the prosecutor, he said that Juster "sort of seemed sickly, sort of pale-ish."
On direct examination, the prosecutor asked Detective Chu to describe for the jurors the appearance of the driver of the first vehicle, the blue Accord. Detective Chu responded, "He had the appearance [that] he was gaunt, he had kind of sunken-in cheeks, which based on my training and experience I believe...." Defense counsel objected and was overruled. Detective Chu went on to state his belief that the Accord's driver was a drug addict. Defense counsel requested a sidebar, at which the judge asked the prosecutor to develop the foundation for the detective's answer. Detective Chu stated that he had done thousands of drug investigations and interviewed numerous drug addicts, reiterating his opinion that "based on his appearance" he believed the Accord driver was a drug addict. Defense counsel again objected and was again overruled. Detective Chu went on to say that the operator's appearance was what sparked his interest in monitoring the defendant and alerting other squad members to do the same.
Shortly thereafter, the prosecutor asked Detective Chu whether the defendant appeared sickly, to which he responded, "Not at all." What followed was a protracted exchange between Chu and defense counsel on recross-examination, in which defense counsel attempted to challenge the notion that a heroin user is identifiable based solely on physical characteristics. In keeping with the theme that the defendant possessed the heroin for personal use, defense counsel argued during closing, "The prosecution wants to tell you that all drug dealers look like a triangle and all drug users look like a square. It's just not that simple." She argued forcefully that the defendant planned to consume the quantity of drugs in his possession because he was suffering from an addiction.
In response, the prosecutor argued to the jury in closing:
"And if you're so much of an addict, ladies and gentlemen, you're going to wait until [four] o'clock in the afternoon to get his fix? Is he going to wait [twenty-five] minutes and just hang out at the convenience store for ten? No, you heard [the Commonwealth's expert] say this is a highly addictive drug. They need that next rush, they need that next high or they get sick."
The prosecutor also referenced testimony that it was "the appearance of the operators of those vehicles" that sparked the officers' interest in pursuing the defendant.
2. Admissibility of negative profiling evidence. The Supreme Judicial Court recently held impermissible "so-called negative profiling evidence—where the goal is to demonstrate that a person does not fit a particular profile." Horne, 476 Mass. at 227. In Horne, another case involving possession with intent to distribute a controlled substance, the Commonwealth elicited detailed testimony from a police expert regarding the physical appearance of users of crack cocaine. Id. at 224-225. Drawing on that testimony, the prosecutor in closing reiterated that "crack cocaine addicts are skinny, they are thin, they have rotten teeth, they are drawn out" and asked the jury rhetorically, "does he look like a drug addict?" Although there was no objection, the court found it unlikely that this "inherently prejudicial" evidence was of minor significance to the jury. See id. at 228, quoting from Commonwealth v. Day, 409 Mass. 719, 723 (1991). The court reasoned that the Commonwealth's evidence of intent was sufficient, but not overwhelming, and the prejudicial impact of the testimony "was magnified by the prosecutor's closing argument, in which the profiling testimony was presented as a key factor in demonstrating that the defendant intended to distribute" the drugs. Horne, 476 Mass. at 228. These circumstances gave rise to a substantial risk of a miscarriage of justice that required reversal of the conviction. See id. at 229-230.
As this case was tried before Horne was decided, the trial judge did not have the benefit of that opinion. In denying the defendant's first motion to stay his sentence pending appeal, the judge relied on the discussion of negative profiling evidence in Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 538-540 (2012), which appears to be inconsistent with the subsequent decision in Horne.
Similarly, the suggestion in this case that the defendant did not look like a heroin addict played a role in the Commonwealth's case that was not insignificant. Three percipient law enforcement witnesses testified first about Juster's physical appearance. Although these comments were unobjected-to and were not explicitly linked to the purportedly typical appearance of a drug user, they were followed by Detective Chu's testimony that he based his suspicions on the Accord driver's physical appearance; Detective Chu used virtually the same language—"gaunt," "sunken" face, and "sickly"—to describe the Accord's driver as the other officers did to describe Juster. Detective Chu then went further, explicitly linking that description to his opinion that an individual with those physical characteristics is a drug addict, and stating that the defendant did not himself match that description. And although the prosecutor's closing did not rely as heavily on this testimony as did the prosecutor in Horne, supra, she still referenced the drivers' appearances and argued that the defendant did not act like an addict.
Despite evidence that might be construed as indicative of drug distribution (e.g., the short rides in two vehicles in quick succession, the packaging of the heroin, and the cash), the defendant was not charged with distributing drugs to Juster or to the Accord's driver. Thus, the question for the jury was whether he intended to distribute the two and one-half grams of heroin he possessed at the time of his arrest.
Unlike in Horne, where similar testimony was admitted without objection, in this case, defense counsel's objections to this line of questioning confer upon the defendant the benefit of the more favorable prejudicial error standard. An error is prejudicial if "one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error [and] it is impossible to conclude that substantial rights were not affected." Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983), quoting from Kotteakos v. United States, 328 U.S. 750, 764-765 (1946).
The negative profiling evidence in this case was irrelevant to "an individualized adjudication of a defendant's guilt or legal innocence." Day, 409 Mass. at 723. It was an "attempt to ... determine [his] guilt by comparing [him] to stereotypes." Horne, 476 Mass. at 228. The trial judge, in concluding that the evidence was admissible, reasoned that the testimony expressed no affirmative opinion that the defendant was guilty or that he appeared to be a drug dealer. Horne, however, rejected that rationale, making clear that this type of testimony "serves the same impermissible end" as evidence used to show that the defendant does fit a particular profile. Id. at 228. See Commonwealth v. Coates, 89 Mass. App. Ct. 728, 734 (2016) (negative profiling evidence introduced to demonstrate that defendant did not fit a profile has an "ultimately identical" effect as positive profiling evidence). The admission of this testimony was error. As the defendant's case was predicated wholly on his personal use defense and what counsel argued was his lack of intent to distribute, the erroneously admitted evidence unfairly undermined his defense. We cannot say that the error was nonprejudicial, and so the defendant's convictions must be reversed.
2. Other claims of error. We briefly address the defendant's remaining claims solely to provide guidance in the event of a retrial.
a. Redaction of medical records. The defendant argues that it was error to deny his motion in limine requesting certain redactions to the medical records he sought to admit. The judge ruled the records admissible under the hearsay exception contained in G. L. c. 233, § 79. However, in denying the request for redactions, she told defense counsel, "You can have it all or nothing. It's your choice." But such an "all-or-nothing" construction of § 79 was rejected in Commonwealth v. Francis, 450 Mass. 132, 138-140 (2007). See Mass. G. Evid. § 803(6)(B) & note (2017) (trial judge has discretion to exclude portions of otherwise admissible medical record in accordance with Mass. G. Evid. §§ 402, 403, 611 [a] [2017] ). It is difficult for us to discern the challenged portions' probative value, whereas their prejudicial impact is, at least in several instances, readily apparent. At any new trial, the judge should carefully balance these factors in ruling on requested redactions.
The defendant requested redaction of a "reference to his criminal record, the fact that he [was homeless and] lived in a group home, and that one of his children is in foster care and has had Department of Youth Services (DYS) services."
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b. Expert's opinion on ultimate issue. The defendant next takes issue with the prosecutor eliciting a police expert's opinion on the defendant's guilt by first establishing that the expert was "aware of the facts of this case," and then posing a supposedly "hypothetical" question that nevertheless named the defendant and Juster and sought the expert's opinion "based on what's before [him.]" The prosecutor asked what the eight bags of heroin found with the defendant were "consistent with," and the expert replied, "it will be possessed with the intent to distribute it." The question as framed was not, in fact, hypothetical at all, and the answer likewise exceeded proper bounds. An expert may offer an opinion "based upon a hypothetical ‘grounded in facts in evidence, as being consistent with a drug transaction.’ " Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 842 (2011), quoting from Commonwealth v. MacDonald, 459 Mass. 148, 162 (2011). But the expert's testimony in this instance impermissibly opined directly on the defendant's guilt and tended to usurp the fact-finding role of the jury. See Commonwealth v. Woods, 36 Mass. App. Ct. 950, 952 (1994), S.C., 419 Mass. 366 (1995).
c. Prosecutor's closing argument. The defendant contends it was error for the prosecutor, in reciting the chronology of events, to tell the jury that the officers arrested the defendant "based on" a conversation with Juster. No witness had so testified, and the prosecutor's statement risked implicitly presenting the jury with the substance of Juster's statement (which had been excluded pursuant to the defendant's motion in limine), inviting them to speculate that Juster made statements implicating the defendant. Although there was no objection, this risk could have been avoided had the prosecutor simply stated that the arrest occurred "after," rather than "based on," the conversation.
The defendant also argues that it was improper for the prosecutor to argue that the defendant was not a heroin addict because an addict could not wait twenty-five minutes to get "that next high," where (1) no expert testimony was presented as to the length of time that an addict could theoretically go without using; and (2) there was no evidence of when the defendant had last used drugs before his arrest. We agree that this too was based on facts not in evidence, went beyond excusable hyperbole, and improperly urged the jury to rely on speculation and stereotypes.
d. School zone testimony. Finally, the defendant claims that there was an inadequate foundation for an officer's testimony that the University High School, located 131 feet from where the defendant exited the pickup truck, was a school within the meaning of G. L. c. 94C, § 32J. Although the testimony could have been more artfully elicited to clearly establish his basis of knowledge, we think the jury would have understood the officer's statements to mean that he had visited the school and by interacting with its graduating students learned about the type of diploma awarded. A jury could have reasonably concluded that a school named a "high school" and that awards a "diploma" is a "secondary school" within the meaning of G. L. c. 94C, § 32J.
Conclusion. The inherently prejudicial impact of the profiling evidence of the physical characteristics of drug users was not harmless error. Accordingly, the judgments are reversed and the verdicts are set aside.
So ordered.
Reversed.