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Commonwealth v. Carrillo

Supreme Judicial Court of Massachusetts, Hampshire

October 3, 2019

COMMONWEALTH
v.
JESSE CARRILLO

          Heard: February 4, 2019.

          Indictments found and returned in the Superior Court Department on September 28, 2015. The cases were tried before John A. Agostini, J.

         The cases were tried before John A. Agostini, J. The Supreme Judicial Court granted an application for direct appellate review.

          J.W. Carney, Jr. (Reyna Ramirez also present) for the defendant.

          Cynthia M. Von Flatern, Assistant District Attorney (Jeremy C. Bucci, Assistant District Attorney, also present) for the Commonwealth.

          Leo Beletsky, of New York, & Lisa Newman-Polk, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

          Maura Healey, Attorney General, & Randall E. Ravitz, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         In October 2013, Eric Sinacori, a twenty year old junior at the University of Massachusetts in Amherst, died from a heroin overdose. His death was yet another tragic loss of a promising young adult whose life was cut short by the proliferation of heroin and other opioids that have ravaged communities across the Commonwealth. The defendant, a graduate student at the university, had provided him with the heroin that caused his death. Following a jury trial, the defendant was convicted of involuntary manslaughter and distribution of heroin. We granted the defendant's application for direct appellate review.

         On appeal, the defendant raises two arguments. First, he contends that the Commonwealth presented insufficient evidence to support the involuntary manslaughter conviction. Second, he claims that he is entitled to a new trial on the indictment charging distribution of heroin because the judge erred in denying his request to instruct the jury on the lesser included offense of possession of heroin for personal use.

         To find a defendant guilty of involuntary manslaughter caused by wanton or reckless conduct, our case law requires proof beyond a reasonable doubt that the defendant engaged in conduct that creates "a high degree of likelihood that substantial harm will result to another." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944) . Selling or giving heroin to another person may be wanton or reckless conduct where, under the circumstances, there is a high degree of likelihood that the person will suffer substantial harm, such as an overdose or death, from the use of those drugs. And in many cases the circumstances surrounding the distribution of heroin will permit a rational finder of fact to find beyond a reasonable doubt that the transfer of heroin created a high degree of likelihood of substantial harm, such as an overdose or death. But not every case will present circumstances that make such conduct "wanton or reckless." This is one such case.

         We conclude that the mere possibility that the transfer of heroin will result in an overdose does not suffice to meet the standard of wanton or reckless conduct under our law. The Commonwealth must introduce evidence showing that, considering the totality of the particular circumstances, the defendant knew or should have known that his or her conduct created a high degree of likelihood of substantial harm, such as an overdose or death.

         Here, no evidence was presented during the Commonwealth's case-in-chief that would permit a reasonable jury to conclude that the inherent possibility of substantial harm arising from the use of heroin __ which is present in any distribution of heroin __ had been increased by specific circumstances to create a high degree of likelihood of substantial harm. For instance, the Commonwealth did not present evidence that the defendant knew or should have known that the heroin was unusually potent or laced with fentanyl; evidence that Sinacori was particularly vulnerable to an overdose because of his age, use of other drugs, or prior overdoses; or evidence that the defendant knew or should have known that Sinacori had overdosed but failed to seek help. In the absence of any such evidence, we conclude that the Commonwealth did not meet its burden of producing sufficient evidence for a reasonable jury to conclude that the defendant's conduct in this case created a high degree of likelihood that Sinacori would suffer substantial harm, such as an overdose or death, from his use of the heroin. The defendant's conviction of involuntary manslaughter must therefore be vacated, and a required finding of not guilty entered.

         We affirm the defendant's conviction of distribution of heroin. We conclude that, in the circumstances of this case, the judge did not err in denying the defendant's request for a lesser included jury instruction on simple possession, even though Sinacori asked the defendant to purchase heroin for him and the defendant did not profit from the sale. Where the defendant traveled alone to New York to obtain the heroin that he later sold to Sinacori, and where Sinacori played no active role in the purchase of those drugs, no reasonable jury could conclude that the defendant was anything other than a "link in the chain" of distribution of the heroin, rather than merely a joint possessor of the heroin for personal use.[1]

         Discussion.

         1. Involuntary manslaughter.

         We consider first whether the evidence was sufficient to support a finding of involuntary manslaughter beyond a reasonable doubt by a reasonable trier of fact. Because the defendant moved for a required finding of not guilty at the close of the Commonwealth's case, we review the sufficiency of only the evidence presented at the time the Commonwealth rested after its case-in-chief, viewing that evidence in the light most favorable to the Commonwealth. Commonwealth v. Berry, 431 Mass. 326, 330, 332 (2000) (sufficiency of evidence determined "by an examination of the evidence at the close of the Commonwealth's case-in-chief"). We reserve discussion of the evidence offered by the defendant after the Commonwealth rested for our analysis of his challenge to the judge's denial of his request for a jury instruction on the lesser included offense of possession of heroin for personal use.

         a. The evidence viewed in the light most favorable to the Commonwealth.

         In the fall of 2013, the defendant and Sinacori lived in the same neighborhood in Amherst. Both were heroin users. Based on the text messages presented in evidence, a reasonable fact finder could have inferred that the defendant met Sinacori shortly before September 30, 2013, and Sinacori learned that the defendant periodically traveled to purchase heroin. In a text message sent on September 30, Sinacori asked the defendant when he was making "the next run." Sinacori indicated he would be willing to purchase "another bun" of heroin[2] when the defendant made that "run." The defendant said he could provide two "buns" for $180, but if Sinacori wanted only one "bun," it would cost one hundred dollars. The defendant also sent a text message to Sinacori that he would have to pay in advance.

         They arranged to meet on October 1, when the defendant left Massachusetts to travel to the Bronx borough of New York to pick up the "buns." During the defendant's trip, the defendant told Sinacori that he was also going to a drug store to purchase a "new rig";[3] Sinacori sent a text message that he would like to split a "10 pack" with the defendant, unless the defendant needed them all. The defendant, upon his return, invited Sinacori to his apartment to "[d]o some."

         Sinacori went to the defendant's apartment that evening and used heroin with the defendant. Later that night, Sinacori asked the defendant in a text message if he "could get another bun tomorrow." The defendant replied that if he were to "let go one from [his] headstash," he would charge "mad dollar" for it. Sinacori agreed to wait for the defendant's next trip; the defendant replied by text that he would be leaving at 5 P.M. on October 3. Sinacori gave the defendant seventy dollars before the defendant left on his trip, and asked the defendant to "spot" him thirty dollars. The defendant drove to the Bronx to buy heroin. At 8:44 P..M. that evening, the defendant sent Sinacori a text message stating, "Candy acquired," and added that he was on his way back. Later, the defendant sent a text message that he was delayed because of traffic in Hartford, Connecticut. Sinacori replied that his "veins are crying" and that he was hurting. At 11:40 P.M., the defendant sent a text message that he knew that Sinacori was "hurtin but u will very soon be in the loving comforting arms of Miss H." The defendant said he would drive to Sinacori's home so that Sinacori would not "have to go far in hurt mode." As he approached, the defendant asked Sinacori whether he had the balance of thirty dollars; Sinacori sent a text message that he only had twenty dollars. They agreed that either the defendant would give him "nine," inferably referring to nine out of ten bags of heroin, or Sinacori would get the remaining ten dollars the next day. The defendant arrived at Sinacori's home just before midnight, and at 12:20 A.M sent a text message to Sinacori to ask, "Ehh???;)" and "How much tropicana did u drink?," which inferably was asking him how much heroin he had used.[4] Sinacori did not reply to either text.

         On the afternoon of October 4, Sinacori's father entered his son's apartment and found his son dead, with a used needle nearby. The police found three waxed bags with a Tropicana stamp that had been torn open, and six more bags that had not been opened. The analyst at the drug laboratory found that the bags contained heroin with a purity range of "roughly from [fifty-eight] to [sixty-nine] percent." The autopsy conducted by the medical examiner revealed that the cause of death was "acute heroin intoxication." A toxicology specialist testified that the opiate found in Sinacori's blood was heroin and that no fentanyl was present in the blood.

         From this evidence, a reasonable jury could have inferred that the defendant and Sinacori on October 1 together used the heroin the defendant had procured earlier that day from the Bronx. Two days later, the defendant traveled again to the Bronx to obtain a "bun" of heroin for Sinacori, and more heroin for himself. When the defendant was traveling through Hartford on his way back to Amherst, Sinacori was suffering from withdrawal pain. The defendant delivered nine bags of heroin to Sinacori that night, omitting one bag because Sinacori had apparently not paid the remaining ten dollars he owed to the defendant. Sinacori used three of those bags and this time overdosed, causing his death.

         The Commonwealth contends that this evidence reveals at least two circumstances showing that the defendant knew or should have known that his conduct was wanton or reckless. First, there was evidence from the text messages that Sinacori was suffering from withdrawal symptoms ("my veins are crying") before he used the heroin, and the Commonwealth argues that the defendant should have known that an addicted person in withdrawal is more likely to overdose. But there was no expert evidence __ or even lay testimony __ that a heroin user is more likely to overdose when he or she is suffering from withdrawal. We cannot reasonably take judicial notice that this is true, or that the defendant or a reasonable person would know it to be true.

         Second, the Commonwealth claims that when his text to Sinacori at 12:20 A.M. asking, "How much tropicana did u drink?" went unanswered, the defendant should have recognized that Sinacori had overdosed and immediately sought help. We decline to give so much inferential weight to the failure of a person to respond to such a text message.

         In sum, there was no evidence that the defendant knew or should have known that the transfer of heroin to Sinacori created a high degree of likelihood of substantial harm, such as an overdose or death. As discussed in greater detail infra, where courts in drug-induced homicide cases have found the evidence sufficient to support a conviction of involuntary manslaughter, there generally has been evidence of specific circumstances that a reasonable person would understand to heighten the risk of harm, such as where the drugs were unusually potent, the user was particularly vulnerable to an overdose, or the defendant failed to seek help after the user became unconscious or unresponsive. Of course, this list is not exhaustive of all the circumstances that may increase the risk of serious harm.

         In this case, however, the Commonwealth proved little more than the fact that heroin was transferred from one person to another. Here, the heroin in question was not laced or tainted with fentanyl; the defendant purchased the same brand of heroin for his own personal use; the defendant observed Sinacori use the same brand of heroin two days earlier without apparent problem; the defendant did not personally inject Sinacori with heroin or any other drugs; there is no evidence that the defendant had any knowledge of any other drug or alcohol use by Sinacori that could have increased the likelihood of an overdose; and the defendant did not observe Sinacori overdose and fail to call for help. Nor was there any expert testimony regarding the relative potency of heroin of the purity that the drug laboratory analyst found, or regarding the likelihood that heroin of that purity would result in an overdose.

         The issue we confront, then, is whether evidence of heroin distribution alone is sufficient to support a conviction of involuntary manslaughter where the heroin caused a tragic death.

         b. Wanton or reckless conduct in the context of a transfer of heroin.

         "Involuntary manslaughter is 'an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct.'" Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. 826, 832 (2010), quoting Commonwealth v. Gonzalez, 443 Mass. 799, 808 (2005). Our model homicide instructions, adopting language from Commonwealth v. Welansky, 316 Mass. at 399, provide that "[w]anton or reckless conduct is conduct that creates a high degree of likelihood that substantial harm will result to another." Model Jury Instructions on Homicide 88 (2018) (involuntary manslaughter). See Welansky, supra ("The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another"). In determining what actions are wanton or reckless, we focus on "the conduct that caused the result, . . . not the resultant harm" (emphasis added). Commonwealth v. Hardy, 482 Mass. 416, 424 (2019).

         The phrase __ "a high degree of likelihood that substantial harm will result to another" __ separates wanton or reckless conduct from the unreasonable risk of harm that constitutes negligence or gross negligence. As this court declared in Welansky, 316 Mass. at 399: "The words 'wanton' and 'reckless' are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind." The risk of harm must be more than a possible or unreasonable risk; it must reach a "high degree of likelihood." See id. See also id. at 397 ("Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another" [emphasis added]). And the harm to another person must be substantial, involving death or grave bodily injury. See Sa ...


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