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Commonwealth v. Horne

Supreme Judicial Court of Massachusetts, Suffolk

January 10, 2017

COMMONWEALTH
v.
CALVIN HORNE.

          Heard: October 7, 2016.

         Controlled Substances. Evidence, Expert opinion, Relevancy and materiality. Indictments found and returned in the Superior Court Department on October 4, 2012. The cases were tried before Linda E. Giles, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

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

          Justin Florence 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. Home, 88 Mass.App.Ct. 1109 (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 ...

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