A jury convicted the defendant of possession of cocaine with intent to distribute and an accompanying school zone offense.
Facts. Based upon the Commonwealth’s evidenсe, reviewed in the light most favorable to it, the jury would have been warranted to find the following. Commonwealth v. Latimore,
Trooper Noonan left his cruiser and approached the Honda on its front passenger side. He directed the driver (the defendant) to roll down the window. With the window down, Trooper Noonan was able to detect a strong odor of alcohol from the defendant. On the floor of the rear passenger compartment, the trooper observed a bottle of Chivas Regal whiskey, approximately three-fourths empty, and a case of beer.
Trooper Noonan ordered the defendant out of the vehicle. The defеndant had difficulty complying. Outside the vehicle, the defendant was quite unsteady on his feet, and conspicuously kept his left hand inside the left front pocket of his coat; he continued to do so even after being directed to place both hands on the hood of the Honda. The defendant continued to be unsteady on his feet and had to be restrained by Noonan from walking into oncoming traffic. Noonan grabbed the defendant, placed him under arrest, and removed his hand from the pocket. In the defendant’s hand was a clear plastic bag, which held five smaller clear plastic bags with a white powdery substance inside. Testing disclosed that the five small bags, combined, held 3.16 grams of cocaine.
The vital question for the jury was whether the defendant had possessed the cocaine with the intent to distribute, as charged in thе complaint. In its case, the Commonwealth called Troopers Noonan and Silva, as percipient witnesses; Trooper Brian Robert, who testified that, when the defendant was stopped, he was within 1,000 feet of a school zone; and Trooper James Bruce, who was assigned to the Essex County drug task force, as a nonpercipient narcotics expert whоse qualifications are not contested.
The sole defense witness was the defendant. He was then forty-nine years of age. He flatly denied having an intent to distribute cocaine to anyone.
Trooper Noonan testified that, after the stop, he had removed from the defendant’s hand the five “baggies” containing a white powdery substance, which he believed to be сocaine due to the manner of its packaging. Each bag, he recounted, had consisted of a corner torn from a plastic sandwich bag, which was “twisted” and “knotted” shut, containing cocaine with a street value of about forty dollars.
The narcotics expert, Trooper Bruce, testified as to the street trade for cocaine. He explained that сocaine is commonly packaged, sold, and bought in the form of “small twist bags” that
Evidence as to the school zone was also introduced and admitted in the Commonwealth’s case. The defendant moved for а required finding of not guilty when the Commonwealth rested, and again at the close of all the evidence. The judge denied both motions.
Discussion. A motion for a required finding of not guilty is allowed if the evidence of the Commonwealth is insufficient as a matter of law to sustain a conviction for the offense at issue. Commonwealth v. Salemme,
The defendant does not contest the adequacy of the evidence as to the element of possession; rather, on appeal, he challenges the sufficiency of the evidence as to the element of intent to distribute.
We consider “only the evidence introduced up to the time that the Commonwealth rested its case, and the defendant first filed his motion[] for [a required finding of not guilty].” Commonwealth v. Kelley,
Consistent with the foregoing principles and based on the evidence in the Commonwealth’s case-in-chief, we are persuaded that no rational jury could have found beyond a reasonable doubt that the defendant was guilty of possession of cocaine with an intent to distribute without employing speculation or guesswork.
The defendant possessed 3.16 grams of cocaine in five twist bags. As for the remaining trace amount of cocaine in two open bags, the Commonwealth concedes that it was for personal use. The police had stopрed him for a motor vehicle infraction on Route 1 in the vicinity of Lynnfield.
“[Tjhere are a number of indicia that have been considered in the assessment of the intent to distribute,” Commonwealth v. Montalvo,
The Commonwealth’s evidence was not only “ambiguous,” but it also lacked specificity as to intent. Commonwealth v. Andrews,
The Commonwealth relies on the opinion testimony of its narcotics expert to meet its burden of proof. A qualified narcotics exрert is permitted to offer an opinion based upon a hypothetical “grounded in facts in evidence, as being ‘consistent with’ a drug transaction.” Commonwealth v. MacDonald,
“Trooper, based on your training and experience, if, for example, there was cocaine that was approximately four grams, packaged in seven different packages, with a street value of approximately $300, where the items were kept separately and where the items wеre kept in a pocket, do you have an opinion of if this is more consistent with distribution or personal use?”
“Hit’s a component of each,” the expert opined, “it’s personal use and also the distribution.” A close reading of the expert’s testimony reveals his opinion hinged on critical assumptions: namely, a user would not consume 3.16 grams of cocaine “all at оnce” or over the course of a day, and thus, a user buying
The expert testimony also had a not-so-subtle pernicious aspect. The expert flatly described “anyone” (including the defendant) using 3.16 grams of cocaine as an “addict.” The end served by identifying the defendant as an addict before the jury was to bring a more general and insidious charge that this was a man of dangerous criminal propensities, who, beсause of those propensities, was more likely than not to sell cocaine. The law forbids the Commonwealth to endeavor to fasten guilt upon a defendant by intimations of his character predisposing him to a
Conclusion.
On the count of the complaint charging a school zone violation, the judgment is reversed, the vеrdict is set aside, and judgment shall enter for the defendant.
So ordered.
Notes
The defendant was also charged with operating a motor vehicle under the influence of alcohol (OUI), G. L. c. 90, § 24; resisting arrest, G. L. c. 268, § 32B; and three (civil) motor vehicle infractions. He pleaded guilty to the OUI and resisting arrest charges. The Commonwealth then tried him on the drug charges. “In the usual case (as § 32J seems to contemplаte), the school zone charge will be tried together with the predicate charge.” Commonwealth v. Taylor,
Among his assignments of error, the defendant argues the jury verdicts were the product of inadmissible opinion testimony from the Commonwealth’s expert witness and prejudicial testimony from the arresting officer.
This location proved to be within 1,000 feet of a private school in the town. The school was shielded from the road by a stand of trees.
Trooper Noonan also testified to the defendant’s behavior following his arrest, stating that the defendant, while in the back seat of the cruiser, had become “aggressive,” “spitting” on the floor and on the rear cage, “hocking up large amounts of phlegm,” and “smashing” his knees against a plexiglass divider between the cruiser’s front and rear compartments. The defendant lodged an objection to this testimonial account of postarrest misconduct. The judge overruled the objection and admitted the evidence.
The Commonwealth introduced evidence about the search of the impounded Honda automobile, which led to the discovery of two open plastic bags inside the billfold of the defendant’s wallet.
Opposing the motion in a conference with the judge, the Commonwealth argued the following as to intent: “He’s got stuff ready and able to pass on to people at the party. He’s got this thirty-pack of beer. He’s not going to consume all that stuff in his car.” The judge pointed out there was no evidence the defendant was traveling to a party bеfore being stopped.
No premium is given to direct evidence as opposed to mere circumstantial evidence, for both may support a conviction.
While it is not relevant to the sufficiency of the Commonwealth’s evidence, the defendant testified at trial that he purchased five baggies of cocaine for his personal use from a seller on а street in Chelsea for $170. He also testified that he received two smaller bags from that dealer to “test” the drugs, and he put those particular bags inside his wallet.
Trooper Noonan testified that Route 1, from Boston to Lynnfield, was a high crime area for drugs. No evidence (apart from the trooper’s anecdotal account) was introduced to support this bare аssertion.
Qualified opinion testimony, properly admitted, informs jurors generally of the significance of evidence related to a fact-based issue, which ultimately must be decided by them alone. Opinion testimony may “touch” on an ultimate issue in the case, Commonwealth v. Cruz,
The expert conceded early in his testimony that he could not give an opinion of an average user’s consumption of cocaine on a given day. He explained that “cocaine use is so prevalent that there are people that have been using it for decades and people that have been using it for weeks. I can’t really say what the average is because I don’t think that such a thing exists.”
In answer to the inquiry whether it was conceivable that the defendant “had the foresight to buy his cocaine ahead of time [and] that he bought seven bags of cocaine to use them,” the expert answered, “I don’t think it’s likely.” He added, “I mean the very nature of аn addiction, in my experience talking to hundreds of addicts, if you put one bag of cocaine in front of them over the course of the day they’re going to do that.” Trooper Bruce suggested that, in his experience (which he admitted did not include any degrees in behavioral psychology or related fields), “[p]eople . . . don’t buy this quantity to ration it out over the course оf a day”; he remarked that “[a]nyone who’s possessing this quantity,” referring to the amount of cocaine found on the defendant, “there’s a level of addiction involved or they’re selling it.”
The expert conceded that, in preparing for his appearance at trial, he had not read the official police report in this case or the laboratory notes for the certificates of drug analysis prepared by the police. Nor did Bruce interview the defendant, review the defendant’s records, or speak to his family or friends.
It is unnecessary to address the defendant’s remaining claims, including those related to the school zone charge. The subsidiary school zone conviction cannot stand in light of the reversal of the conviction of possession with intent to distribute.