Heard: October 7, 2016.
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.
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.
Florence for Massachusetts Association of Criminal Defense
Lawyers & others, amici curiae.
K. Anderson, Assistant District Attorney, for the
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
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
The defendant's arrest.
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. 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.
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.
defendant was charged with seven offenses as a result of the
stop,  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.
Challenged expert testimony.
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],
A.: "Well, depending upon what type of drug they are
addicted to they have different ...