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Commonwealth v. Smith

Appeals Court of Massachusetts, Plymouth

October 27, 2017

COMMONWEALTH
v.
ANTONIO A. SMITH

          Heard: April 5, 2017.

         Indictment found and returned in the Superior Court Department on July 11, 2014.

         The case was tried before Robert C. Cosgrove, J.

          Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant.

          Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth.

          Present: Meade, Hanlon, & Maldonado, JJ.

          HANLON, J.

         After a jury trial, the defendant was convicted of possession of a class B substance, crack cocaine, with intent to distribute.[1] He now argues that the improper admission of an expert witness's "profiling" testimony impinged on the jury's fact-finding role and created a substantial risk of a miscarriage of justice. For the following reasons, we affirm.

         Background.

         We summarize the facts as the jury could have found them, based upon the evidence admitted. On April 22, 2014, officers of the Brockton Police narcotics unit were watching an area near the intersection of North Cary Street and East Ashland Street. At 9:30 A.M., Detective Mercurio observed a green Volvo driving slowly; the driver was talking on a cellular telephone while leaning her head out of the window and looking around at nearby parking lots. After driving back and forth through the intersection, the Volvo came to a stop in the parking lot of a nearby liquor store that was closed. Neither the driver, nor the other occupants, a male and a child in the backseat, got out of the car. A few minutes later, the officers saw the defendant walking down North Cary Street; he went directly to the Volvo and got into the front passenger seat.

         About one minute later, the Volvo drove out of the parking lot and south on North Cary Street, turning onto Ashfield Drive, then stopping at an intersection on Anawan Street, a short distance from the original pick up location; the defendant got out of the car there. Shortly afterwards, Mercurio drove his unmarked police car past the Volvo, which was stopped at the next intersection. The defendant, having left the Volvo, was walking in the travel lane of the street in Mercurio's direction; the detective then stopped his car and said "hey, " and the defendant walked toward the driver's side of Mercurio's car. Mercurio showed his badge and identified himself as a police officer; the defendant then stepped back and started running down the driveway of a house at 19 Anawan Street.[2]Mercurio did not see any other individuals in the area of that house.

         Mercurio chased the defendant down the driveway, and observed the defendant's hands go to the front of his pants as he was running; there were approximately ten to twenty feet between them. As soon as the defendant turned the corner of the house, Mercurio lost sight of him. At the same time, another officer, Donahue, joined the chase, passing Mercurio and running around the house in the direction the defendant had run. Donahue caught up with the defendant in front of 19 Anawan Street.[3]

         Mercurio then went back to the area behind 19 Anawan Street where he had lost sight of the defendant during the chase; he found a clear plastic bag containing two rocklike substances that were individually wrapped "inside the corner of a bag and it was tied in a knot at the top." Approximately three feet away, another officer found "a second plastic bag and inside that plastic bag [were] thirteen more individually wrapped off-white colored rocklike substances." The rocks in the two individual bags first found were larger than the contents of the thirteen individual bags. The bags were tested and the substance was determined to be cocaine.

         At trial, an officer who had not participated in the investigation, Detective Keating, testified as an expert, based on his training and experience, regarding illegal drug distribution and drug use.[4] Keating provided for the jury an overview of the consistency and street cost of crack cocaine generally in the Brockton market in 2014.[5] He explained that the most common packaging of crack cocaine for street sales is for the "rock [to] be placed in the corner of a baggy, twisted, tied off and that's how it's individually wrapped"; the individual packets are ...


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