Com. v. Little, SJC-10256.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Cordy
• Citation: 453 Mass. 766,906 N.E.2d 286
• Parties: COMMONWEALTH v. Christopher L. LITTLE.
• Docket Number: SJC-10256.
• Decision Date: 14 May 2009

906 N.E.2d 286 453 Mass. 766 COMMONWEALTH
v.
Christopher L. LITTLE. SJC-10256. Supreme Judicial Court of Massachusetts, Plymouth. Argued January 6, 2009. Decided May 14, 2009.

[906 N.E.2d 288]

John J. Roemer, Committee for Public Counsel Services, Worcester, for the defendant.

Christine M. Kiggen, Assistant District Attorney, for the Commonwealth.

David M. Siegel, Boston, for Suffolk Lawyers for Justice, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

CORDY, J.

453 Mass. 767

The Commonwealth brought a complaint against Christopher Little, the defendant, charging him with possession of a Class D substance (marijuana) with the intent to distribute. At trial, Little contested the charge only insofar as it alleged an intent to distribute. The Commonwealth called an experienced narcotics investigator, Detective Thomas Keating, who testified that in his opinion, the facts of Little's case were consistent with an intent to distribute. Little filed a motion for a required finding of not guilty, which the trial judge denied. The jury returned a verdict of guilty, and Little was sentenced to a term of two years' imprisonment.

906 N.E.2d 289

Little appealed, and we granted his application for direct appellate review.

Little, represented by new counsel, presses two arguments on appeal. First, he challenges Keating's testimony as an expert witness, including his qualifications as an expert, the scientific basis for his opinions, and the sufficiency of his testimony to prove that Little had an intent to distribute marijuana. Second, he challenges the judge's decision to deny Little's motion in limine to exclude his prior convictions of crimes involving drug distribution.¹

We conclude that the judge did not abuse his discretion in allowing Detective Keating to testify, nor did he err in denying the motion for a required finding of not guilty. While Keating's testimony sometimes strayed beyond the bounds of his expertise, there was no objection to it, and its admission did not create a substantial risk of a miscarriage of justice. We also conclude, however, that the judge erred in denying Little's motion in limine, essentially ruling that if Little chose to testify, the Commonwealth would be allowed to introduce evidence of Little's prior convictions relating to drug distribution. Therefore, we reverse the conviction and remand for a new trial.

1. Facts. The jury could have found the following facts beyond

453 Mass. 768

a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). On the evening of October 12, 2006, Officer Robert Stokinger of the Whitman police was parked on Route 14 when he saw a green sedan automobile with an expired inspection sticker drive by. He entered the vehicle's registration plate number into his computer and learned that the car had failed an inspection in December, 2005, and that the license of the vehicle's owner had been suspended. Stokinger pulled the vehicle over; Little was driving, and was the only person inside the car. Stokinger asked Little for his driver's license and automobile registration and confirmed that the license had been suspended. He then called for backup and arrested Little.

At the Whitman police station, Little's pockets were emptied, and for the first time, Stokinger smelled a strong odor of marijuana. In the crotch of Little's pants, the officers found a plastic bag holding fifteen smaller plastic bags, each containing a green, leafy substance. They also found a cellular telephone and $254 in his pockets. The officers did not find any smoking paraphernalia in Little's possession.

2. Discussion. a. Expert testimony. "Otherwise qualified expert testimony is admissible if, `in the judge's discretion, the subject [of such testimony] is not within the common knowledge or common experience' of the trier of fact, and the testimony will assist the trier of fact in determining a fact in issue or in understanding the evidence." Commonwealth v. Miranda, 441 Mass. 783, 792-793, 809 N.E.2d 487 (2004), quoting Commonwealth v. Francis, 390 Mass. 89, 98, 453 N.E.2d 1204 (1983). That rule, however, is not rigid; and even in cases where the subject matter may be within the knowledge or common experience of the trier of fact, expert testimony will be admissible if, in the judge's discretion, it may be of assistance. See Commonwealth v. Miranda, supra at 793, 809 N.E.2d 487, citing P.J.

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Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 7.6.1 (7th ed.1999). See generally Mass. G. Evid. § 702, at 204-213 (2008-2009).

It is well established that "trial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases." Commonwealth v. Miranda, supra, citing Commonwealth v. Johnson, 413 Mass. 598, 604, 602 N.E.2d 555 (1992). The judge's decision to allow this type of evidence "will be reversed only where the

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admission constitutes an abuse of discretion or error of law." Commonwealth v. Johnson, 410 Mass. 199, 202, 571 N.E.2d 623 (1991).²

Narcotics investigators may testify as experts to describe how drug transactions occur on the street. Commonwealth v. Miranda, supra at 794, 809 N.E.2d 487, quoting Commonwealth v. Robinson, 43 Mass.App.Ct. 257, 259, 682 N.E.2d 903 (1997) ("Characteristics of two-person street-level drug transactions are beyond the common store of knowledge of the average juror"). For example, this court and the Appeals Court have upheld decisions to allow testimony on the use of "lookouts" in drug transactions, Commonwealth v. Miranda, supra at 794-795 & n. 13, 809 N.E.2d 487, and the significance of the purity of seized drugs, Commonwealth v. Bienvenu, 63 Mass.App.Ct. 632, 636, 828 N.E.2d 543 (2005).

We have also repeatedly held that there is no error in allowing "a police detective to 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." Commonwealth v. Johnson, 410 Mass. at 202, 571 N.E.2d 623. See Commonwealth v. Wilson, 441 Mass. 390, 400-401, 805 N.E.2d 968 (2004) (Wilson); Commonwealth v. Gollman, 436 Mass. 111, 116, 762 N.E.2d 847 (2002) (Gollman). "An element of the Commonwealth's case in proving a charge of drug possession with intent to distribute is whether the subject drugs, connected to a given defendant, were for personal use or for distribution. This is not a matter within the common experience of jurors." Commonwealth v. Grissett, 66 Mass.App. Ct. 454, 457, 848 N.E.2d 441 (2006), citing Wilson, supra at 401, 805 N.E.2d 968.

In this case, as in Gollman and Wilson, the judge permitted Keating to opine as an expert witness whether the facts of the case were more consistent with distribution or personal use of drugs. Keating testified that he had been employed with the Brockton police department since 1987; that he had worked in the narcotics unit since 1994; that he had attended at least 200 hours of training in narcotics investigation; that he holds a master's degree in criminal justice; that he had been involved in close to

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200 marijuana investigations; and that he had been involved in about fifty undercover purchases of marijuana. The judge did not abuse his discretion in permitting Keating to testify as an expert on the distribution issue, and Little lodged no objection to his doing so.³

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Little also challenges the content of Keating's testimony. At no point during direct or cross-examination did Little object on the ground that Keating's testimony went beyond his area of expertise, or on the ground that he gave an opinion on the ultimate question before the jury. The conviction will therefore be reversed only if the testimony created a substantial risk of a miscarriage of justice. See Commonwealth v. Daye, 411 Mass. 719, 741-742, 587 N.E.2d 194 (1992); Commonwealth v. Villanueva, 47 Mass.App.Ct. 905, 907, 711 N.E.2d 608 (1999).

In Wilson and Gollman, we upheld convictions when experts offered testimony similar to Keating's. In Wilson, supra at 400-401, 805 N.E.2d 968, a narcotics detective opined that possession of one-half ounce of marijuana packaged in twenty smaller bags, $476 in cash, a pager, and a cellular telephone, and an absence of smoking paraphernalia, were more consistent with an intent to distribute than personal use. In Gollman, supra, a narcotics officer opined that possession of "crack" cocaine with street value of $540 and a pager, and an absence of smoking paraphernalia, were more consistent with an intent to distribute than personal use.

Keating's testimony fits squarely within the Wilson and Gollman framework. He began by testifying that drug dealers usually sell marijuana in "dime bags" (one gram, ten dollars), one-eighth of an ounce (3.5 grams, twenty-five dollars), one-half ounce (fourteen grams, seventy-five dollars), and one ounce (twenty-eight grams, $125 to $150). He testified that the absence of smoking paraphernalia could be significant in determining whether drugs are for personal use or for distribution. He admitted that "everybody carries a cell phone," but noted that drug dealers use them to communicate with potential buyers. The prosecutor then

453 Mass. 771

asked, in the form of a hypothetical, for Keating to consider a case where a defendant is arrested with fifteen individually packaged bags of marijuana, $254 in loose currency, a cellular telephone, and no smoking paraphernalia. Keating testified that in his opinion, that situation was more consistent with distribution than personal use.

On cross-examination, Keating testified that he had "never dealt with a person buying marijuana in fifteen individual bags like that," but admitted that the purchaser could not control how the drugs were packaged. He acknowledged that the total weight of the marijuana alone was insufficient to infer an intent to...