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Commonwealth v. Sutherland

Appeals Court of Massachusetts, Hampden

March 19, 2018

COMMONWEALTH
v.
ADMIRAL SUTHERLAND.

          Heard January 19, 2018

         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.

          Present: Blake, Neyman, & Ditkoff, JJ.

          BLAKE, J.

         Following a jury trial in the Superior Court, the defendant, Admiral Sutherland, was convicted of possession 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 through[1] 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.

         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.

         Kenneth Gagnon[2] 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 ...


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