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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.
