Commonwealth v. Horne

• Decision Date: 10 January 2017
• Docket Number: SJC–12068
• Citation: 66 N.E.3d 633,476 Mass. 222
• Parties: Commonwealth v. Calvin Horne.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 222

66 N.E.3d 633

Commonwealth

v.Calvin Horne.

SJC–12068

Supreme Judicial Court of Massachusetts, Suffolk..

Argued October 7, 2016

Decided January 10, 2017

Rebecca A. Jacobstein , Committee for Public Counsel Services, for the defendant.

Justin Florence , Boston, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae.

Teresa K. Anderson , Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

LENK, J.

The defendant was convicted by a Superior Court jury of possession of cocaine with intent to distribute. The Appeals Court affirmed the conviction, see Commonwealth v. Horne, 88 Mass.App.Ct. 1109, 39 N.E.3d 471 (2015), and we granted the defendant's application for further appellate review. The question before us is whether the admission in evidence of so-called "negative profiling" testimony, suggesting that the defendant did not look like a "crack" cocaine addict, gave rise to a substantial risk of a miscarriage of justice. We conclude that it did.¹

1. Background. a. The defendant's arrest. We recite the relevant facts the jury could have found. In the early morning hours of September 14, 2012, the defendant was stopped by police on Colonial Avenue in the Dorchester section of Boston for traffic violations. The automobile that the defendant was driving was registered to a woman named Denise Barton.² The officer who conducted the stop, Boston police Sergeant Thomas Brooks, determined that the defendant's driver's license had been suspended. When Brooks, joined by Boston police Officer Pele James, attempted to arrest him, the defendant forcefully resisted. With the assistance of three additional officers, the defendant was subdued and placed under arrest.

Thereafter, the arresting officers found nearby a clear plastic bag containing twenty-six individually wrapped "rocks" of crack cocaine, totaling 3.87 grams. The defendant apparently had kept the bag in his boot, which came off during the melee. Later that night, Boston police Officer David Lanteigne conducted an inventory search of the motor vehicle. He found two cellular telephones and eighty-three dollars in cash in the center console of the automobile, another cellular telephone on the driver's seat, and a gun in the trunk. He did not find any drug paraphernalia.

The defendant was charged with seven offenses as a result of the stop,³ including several gun-related charges and one count of possession of a class B substance (cocaine) with the intent to distribute, as a subsequent offense. The jury acquitted the defendant of the firearms-related charges and convicted him of the other charges.

b. Challenged expert testimony. The Commonwealth notified defense counsel in advance of trial that a Boston police officer would testify as an expert to "several aspects of street-level narcotics activity including, but not limited to: common practices and activities of street-level drug dealers, the appearance, packing, and value of street narcotics, [and] the vernacular of illegal narcotics users and dealers." At trial, Sergeant Detective William Feeney, a supervisor in the Boston police drug control unit, testified in keeping with the notice. In addition, Feeney testified as follows:

Q.: "And through your experience in observing and encountering ... drug users, what are some of the characteristics that you've observed in [drug users], physical characteristics?"

A.: "Well, depending upon what type of drug they are addicted to they have different characteristics."

Q.: "Thank you, I'm going to ask a more specific question, if someone were addicted to crack cocaine what are some of the physical characteristics of a crack cocaine addict?"

A.: "Somebody that's a crack cocaine user that's been using for a time, most times their physical appearance will be changed from what they probably looked like at one point, to be very—"

At that point, the defendant's counsel requested a sidebar conference at which she stated that "this [line of questioning] is getting a little wonky for lack of a better term, what people look like when they are addicted to crack." Her "understanding from notice from the Commonwealth" was that "[the prosecutor] said [that Feeney] was going to testify to drug distribution[,] not what a drug addict looks like." The judge asked if counsel had received notice that Feeney was going to testify to signs of drug abuse and, when the defendant's counsel replied essentially in the affirmative, the judge remarked that "it's sort of common knowledge that crack addicts are going to exhibit certain physical signs and behavior," and allowed the line of questioning to continue.

The following exchange then took place:

Q.: "Sergeant Detective Feeney can you please describe for the members of the jury the crack addicts as you've observed them and in some cases arrested them, what are some of the physical characteristics that you've noted?"

A.: "Well, the majority of them you will notice them to be somewhat unkempt, very thin, physical appearances seem to be deteriorating, sometimes they'll have rotted teeth or worn down teeth from constantly grinding their teeth

based on the addiction that results from the crack use."

The prosecutor then elicited testimony from Feeney concerning how much crack cocaine he typically would find when searching a crack cocaine user, the commonly used instruments of drug dealers, and the manner in which drug dealers generally package cocaine. Feeney also testified, upon looking at a photograph of the crack cocaine in this case, that the cocaine "could be [packaged in] some ten dollar bags and ... twenty dollar bags," suggesting an intent to distribute. At the end of his direct examination, Feeney testified that the packaging and amount of crack cocaine found near the defendant's boot, coupled with the eighty-three dollars, was consistent with an intent to distribute.

In his closing argument, the prosecutor emphasized Feeney's testimony concerning the physical characteristics of crack cocaine addicts, stating:

"How do you know he possessed [the crack cocaine] with the intent to distribute it, does he look like a drug addict? You saw the pictures of him, drug addicts, particularly crack cocaine addicts are skinny, they are thin, they have rotted teeth, they are drawn out. He's a big man, he's a big muscular man who gave it to Sergeant Brooks quite frankly and Officer [James], and they needed assistance to get him. He is not a drug addict; he possessed it with the intent to distribute it."

The jury convicted the defendant of possession of a class B substance (cocaine) with intent to distribute.

2. Discussion. On appeal, the defendant argues that it was error to allow Feeney to testify as to the typical physical characteristics of crack cocaine addicts, maintaining that such testimony was inadmissible negative profiling evidence.

a. Standard of review. The "admission of [expert testimony] is largely within the discretion of the trial judge and he [or she] will be reversed only where the admission constitutes an abuse of discretion or error of law." Commonwealth v. Johnson, 410 Mass. 199, 202, 571 N.E.2d 623 (1991). Where, as here, the objection was not preserved, ⁴ we review the defendant's claim to "determine whether any error ... created a substantial risk of a miscarriage of justice." Commonwealth v. Zimmerman, 441 Mass. 146, 150, 804 N.E.2d 336 (2004).⁵

b. Admissibility of negative profiling evidence. Twenty-five years ago, we determined in Commonwealth v. Day, 409 Mass. 719, 723, 569 N.E.2d 397 (1991), that profiling testimony is inadmissible. In that case, we addressed whether there was error in the admission of an expert witness's testimony concerning the typical child abuser. Id. The expert's so-called "child battering profile" consisted of his view of several typical characteristics associated with child abusers. Id. at 722, 569 N.E.2d 397. By introducing this evidence, the prosecutor intended to demonstrate that the defendant matched the profile. We concluded that the expert's profiling testimony was both irrelevant and prejudicial to the defendant. Id. at 723, 569 N.E.2d 397.

In determining that the profiling evidence was irrelevant, we noted that a "criminal trial is by its very nature an individualized adjudication of a defendant's guilt or legal innocence." Id."[T]he mere fact that a defendant fits the profile does not tend to prove that a particular defendant" committed a particular offense. Id. Additionally, the use of such evidence invites a jury to conclude that because an expert identifies an accused as fitting a particular profile, "it is more likely than not that [the accused] committed the crime" (citation omitted). Id. at 723–724, 569 N.E.2d 397. In light of this, "[t]he use of criminal profiles as substantive evidence of guilt is inherently prejudicial to the defendant." Id. at 723, 569 N.E.2d 397.

The inadmissibility of profiling evidence consistently has been upheld in the intervening years. See, e.g., Commonwealth v. Federico, 425 Mass. 844, 850, 683 N.E.2d 1035 (1997) ("expert may not provide profiles or testify as to the typical attributes or characteristics of the perpetrators of child abuse"); Commonwealth v. Coates, 89 Mass.App.Ct. 728, 735–737, 54 N.E.3d 578 (2016) (sex abuser profile inadmissible); Commonwealth v. Poitras, 55 Mass.App.Ct. 691, 694, 774 N.E.2d 647 (2002) (admission of child abuser profile erroneous); Commonwealth v. LaCaprucia, 41 Mass.App.Ct. 496, 501–502, 671 N.E.2d 984 (1996) (prosecutor's remarks suggesting defendant sexually abused his children because he fit mold of abuser improper).⁶

The Commonwealth's effort to distinguish the challenged evidence from that held inadmissible in Day and its progeny is unavailing. At trial in this case, the Commonwealth attempted to prove that since the defendant did not match the physical characteristics of a drug addict, he must be a drug dealer. On appeal, the Commonwealth...