66 N.E.3d 633
Mass.2017Background
- In September 2012 police stopped Horne for traffic violations; during a struggle he was arrested and a bag containing 26 individually wrapped rocks of crack (3.87 g) was found nearby; a gun was found in the trunk and cash and three cell phones were in the vehicle.
- Horne was indicted on multiple counts including possession of cocaine with intent to distribute; he was acquitted of firearms charges and convicted on the drug-related charges; conviction was later appealed to the SJC.
- The Commonwealth disclosed an expert witness (Det. Sgt. Feeney) to testify on street-level narcotics practices; at trial Feeney described typical physical characteristics of long‑term crack users (e.g., thin, unkempt, rotted teeth).
- Feeney also testified about packaging and street value of the drugs and opined that the packaging/amount plus cash were consistent with intent to distribute; prosecutor emphasized Feeney’s description of a typical crack addict in closing to argue Horne was not a user but a dealer.
- Horne objected on notice grounds at sidebar but did not preserve a profiling objection; on appeal he argued the testimony constituted improper profiling (negative profiling) that prejudiced the jury.
Issues
| Issue | Commonwealth's Argument | Horne's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony describing typical physical characteristics of crack users | Testimony was proper background on street‑level narcotics and signs of abuse; notice given for expert testimony | Such testimony is profiling (here "negative profiling") and inadmissible because it invites guilt-by-stereotype | Testimony describing physical traits of crack addicts was profiling and inadmissible |
| Whether so-called negative profiling (showing defendant did not fit user profile) is distinct from prohibited profiling | Argued negative profiling is different because it did not directly compare Horne to a dealer profile | Negative profiling is the mirror of profiling and equally impermissible | Negative profiling falls within the long-standing bar against profiling evidence |
| Prejudice/materiality of the error | Evidence of packaging, cash, phones, and drugs was sufficient; any error was harmless | Profiling testimony, amplified in closing, materially influenced the jury and created substantial risk of miscarriage of justice | Error was not harmless; given the non‑overwhelming other evidence, the admission created a substantial risk of miscarriage of justice |
| Remedy | No specific claim for remedy by Commonwealth in opinion | Requested relief: reversal/remand due to prejudicial error | Conviction vacated and case remanded for further proceedings consistent with decision |
Key Cases Cited
- Commonwealth v. Day, 409 Mass. 719 (1991) (profiling testimony inadmissible and inherently prejudicial)
- Commonwealth v. Federico, 425 Mass. 844 (1997) (expert may not testify to typical attributes of child‑abuse perpetrators)
- Commonwealth v. Coates, 89 Mass. App. Ct. 728 (2016) (negative proof of not matching a criminal profile is properly excluded)
- Commonwealth v. Azar, 435 Mass. 675 (2001) (error requires reversal if it creates substantial risk of miscarriage of justice)
- Commonwealth v. Latimore, 378 Mass. 671 (1979) (standard for sufficiency of evidence review)