Lead Opinion
The Commonwealth brought a complaint against Christopher Little, the defendant, charging him with possession of a Class D substance (marijuana) with the intent to distribute. At trial, Little contested the charge only insofar as it alleged an intent to distribute. The Commonwealth called an experienced narcotics investigator, Detective Thomas Keating, who testified that in his opinion, the facts of Little’s case were consistent with an intent to distribute. Little filed a motion for a required finding of not guilty, which the trial judge denied. The jury returned a verdict of guilty, and Little was sentenced to a term of two years’ imprisonment. Little appealed, and we granted his application for direct appellate review.
Little, represented by new counsel, presses two arguments on appeal. First, he challenges Keating’s testimony as an expert witness, including his qualifications as an expert, the scientific basis for his opinions, and the sufficiency of his testimony to prove that Little had an intent to distribute marijuana. Second, he challenges the judge’s decision to deny Little’s motion in limine to exclude his prior convictions of crimes involving drug distribution.
We conclude that the judge did not abuse his discretion in allowing Detective Keating to testify, nor did he err in denying the motion for a required finding of not guilty. While Keating’s testimony sometimes strayed beyond the bounds of his expertise, there was no objection to it, and its admission did not create a substantial risk of a miscarriage of justice. We also conclude, however, that the judge erred in denying Little’s motion in li-mine, essentially ruling that if Little chose to testify, the Commonwealth would be allowed to introduce evidence of Little’s prior convictions relating to drug distribution. Therefore, we reverse the conviction and remand for a new trial.
1. Facts. The jury could have found the following facts beyond
At the Whitman police station, Little’s pockets were emptied, and for the first time, Stokinger smelled a strong odor of marijuana. In the crotch of Little’s pants, the officers found a plastic bag holding fifteen smaller plastic bags, each containing a green, leafy substance. They also found a cellular telephone and $254 in his pockets. The officers did not find any smoking paraphernalia in Little’s possession.
2. Discussion, a. Expert testimony. “Otherwise qualified expert testimony is admissible if, ‘in the judge’s discretion, the subject [of such testimony] is not within the common knowledge or common experience’ of the trier of fact, and the testimony will assist the trier of fact in determining a fact in issue or in understanding the evidence.” Commonwealth v. Miranda,
It is well established that “trial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases.” Commonwealth v. Miranda, supra, citing Commonwealth v. Johnson,
Narcotics investigators may testify as experts to describe how drug transactions occur on the street. Commonwealth v. Miranda, supra at 794, quoting Commonwealth v. Robinson,
We have also repeatedly held that there is no error in allowing “a police detective to testify that in his opinion the amount of [drugs] possessed by the defendant was not consistent with personal use but was consistent with an intent to distribute.” Commonwealth v. Johnson, 410 Mass, at 202. See Commonwealth v. Wilson,
In this case, as in Gollman and Wilson, the judge permitted Keating to opine as an expert witness whether the facts of the case were more consistent with distribution or personal use of drugs. Keating testified that he had been employed with the Brockton police department since 1987; that he had worked in the narcotics unit since 1994; that he had attended at least 200 hours of training in narcotics investigation; that he holds a master’s degree in criminal justice; that he had been involved in close to
Little also challenges the content of Keating’s testimony. At no point during direct or cross-examination did Little object on the ground that Keating’s testimony went beyond his area of expertise, or on the ground that he gave an opinion on the ultimate question before the jury. The conviction will therefore be reversed only if the testimony created a substantial risk of a miscarriage of justice. See Commonwealth v. Daye,
In Wilson and Gollman, we upheld convictions when experts offered testimony similar to Keating’s. In Wilson, supra at 400-401, a narcotics detective opined that possession of one-half ounce of marijuana packaged in twenty smaller bags, $476 in cash, a pager, and a cellular telephone, and an absence of smoking paraphernalia, were more consistent with an intent to distribute than personal use. In Gollman, supra, a narcotics officer opined that possession of “crack” cocaine with street value of $540 and a pager, and an absence of smoking paraphernalia, were more consistent with an intent to distribute than personal use.
Keating’s testimony fits squarely within the Wilson and Gollman framework. He began by testifying that drug dealers usually sell marijuana in “dime bags” (one gram, ten dollars), one-eighth of an ounce (3.5 grams, twenty-five dollars), one-half ounce (fourteen grams, seventy-five dollars), and one ounce (twenty-eight grams, $125 to $150). He testified that the absence of smoking paraphernalia could be significant in determining whether drugs are for personal use or for distribution. He admitted that “everybody carries a cell phone,” but noted that drug dealers use them to communicate with potential buyers. The prosecutor then
On cross-examination, Keating testified that he had “never dealt with a person buying marijuana in fifteen individual bags like that,” but admitted that the purchaser could not control how the drugs were packaged. He acknowledged that the total weight of the marijuana alone was insufficient to infer an intent to distribute. He also offered an imprecise economic argument to explain why a drug buyer would never purchase fifteen individual packages instead of a larger bulk package. Finally, he testified that marijuana users usually (though not always) carry smoking paraphernalia with them.
As we have noted, expert witnesses must limit their opinions to “matters within the witness’s field of expertise.” Commonwealth v. Pikul,
Finally, Little essentially argues that reversal is required because the evidence “was equally consistent with possession for personal use as with possession with the intent to distribute.” Wilson, supra at 401. “We review the evidence in the light most favorable to the Commonwealth to determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id., quoting Commonwealth v. Latimore,
The Commonwealth’s evidence was sufficient to prove the
“A reasonable jury could have found that the Commonwealth met its burden by relying on the amount of marijuana the defendant possessed in the absence of any smoking paraphernalia, the manner in which the marijuana was packaged, the defendant’s possession of $476 in cash, a pager, and a cellular telephone, and Detective Smith’s testimony that the aforementioned facts are consistent with an intent to distribute.”
The facts of this case are remarkably similar. Here, as in Wilson, a rational jury could have found the elements of the crime beyond a reasonable doubt. Therefore, the judge did not err in denying Little’s motion for a required finding of not guilty.
b. Prior convictions. Little contends that the judge erred in ruling that if Little testified, the Commonwealth would be permitted to introduce in evidence Little’s prior convictions of drug distribution to impeach his credibility. We agree.
“A judge has discretion to exclude evidence of a prior conviction, otherwise admissible to be used for impeachment under G. L. c. 233, § 21, if the danger of unfair prejudice resulting from such evidence outweighs its probative value.” Commonwealth v. Crouse,
We consider seasonably raised challenges to the admission of evidence of prior convictions under the abuse of discretion standard. Commonwealth v. Fono, supra, citing Commonwealth v.
In conducting a review for an abuse of discretion, we have analyzed several factors, including whether the prior conviction is substantially similar to the crime charged, Commonwealth v. Drumgold,
We have repeatedly held that “no defendant should be convicted of a crime by proof of his reputation or propensity to commit similar crimes.” Commonwealth v. Fano,
In this case, the Commonwealth does not dispute that the crimes involved in the prior convictions are substantially similar to the ones at issue in the current charges. Little was charged with possession with the intent to distribute a Class D drug; if Little had testified, the Commonwealth intended to introduce evidence that he had been convicted of both distribution and possession with the intent to distribute controlled substances.
Additionally, “admission of evidence of prior convictions solely because of the similarity of the conviction to the crime being tried is reversible error” (emphasis in original). Commonwealth v. Fono, supra at 302 n.11, citing Commonwealth v. Guilfoyle,
Finally, the judge gave short shrift to the required balancing of the convictions’ probative value against their potential
The judge’s error created a substantial risk of a miscarriage of justice. In this case, although the evidence is sufficient under the “rational trier of fact” test, Commonwealth v. Latimore,
So ordered.
Notes
Those prior convictions included possession with the intent to distribute a Class B substance (cocaine) in violation of G. L. c. 94C, § 32A (c); possession with the intent to distribute a Class D substance in violation of G. L. c. 94C, § 32C; distribution of a Class B substance in violation of G. L. c. 94C, § 32A (a); and conspiracy to violate the Controlled Substance Act in violation of G. L. c. 94C, § 40.
At trial, Little did not challenge Detective Keating’s qualifications as an expert. Little also failed to request a hearing pursuant to Commonwealth v. Lanigan,
The judge did not make a specific finding that Keating was qualified to act as an expert witness. In the absence of a request by the defendant, however, a judge is not required to explicitly find that the officer is qualified to testify as an expert. See Commonwealth v. Salcedo,
We have also evaluated whether the judge provided limiting instructions to the jury and whether the prosecutor referred to the prior convictions in the closing argument. Commonwealth v. Brown,
The defendant’s prior conviction of conspiracy to violate the Controlled Substance Act was placed “on file.” We express no view whether that conviction, which did not charge distribution, or possession with intent to distribute a controlled substance, might properly be used to impeach the defendant’s credibility at a retrial, after the required balancing by the judge.
“If the issue is did he have the intent to distribute, then these prior convictions become much more relevant. . . . And the fact that someone has two prior convictions for dealing in drugs, I think, is a substantial factor that goes to a person’s credibility. Should a fact finder believe someone who has two prior drug convictions? ... I think here [the convictions have] a substantial impact on the defendant’s credibility with two prior drug convictions.”
The final two factors also inure to Little’s benefit. The Commonwealth has not argued that these were Little’s only prior convictions, and that the Commonwealth was therefore limited in its ability to impeach the defendant. Additionally, the prior convictions do not reflect “previous untruthfulness.” Commonwealth v. Maguire,
The dissent correctly points out that the defendant failed to make an offer of proof to show how his testimony would have aided his defense. Post at 778. While such a failure is not fatal in this case, it is a close question. Where the defendant chooses not to testify in the face of a ruling on the admissibility of his prior convictions, the failure to make such an offer properly may be construed against him on the questions of prejudice and substantial risk.
Dissenting Opinion
(dissenting). I agree that the judge below stated an impermissible reason in his ruling to admit the defendant’s prior convictions, namely, that they were particularly probative of his credibility precisely because they were similar to the crimes charged in the complaint. Ante at 774. However, the judge’s erroneous reasoning should not necessarily mean that his ruling was incorrect. An incorrectly reasoned ruling nevertheless may be correct for a different reason, and thus may be affirmed. See Commonwealth v. Jones,
I agree that the court must go through a balancing of factors, and I agree that the prior convictions here are substantially similar to the crime charged, a factor which weighs heavily in the prejudice column. However, use of such convictions is not per se error, as the court acknowledges. Ante at 773, citing Commonwealth v. Whitman,
I also agree that the defendant’s prior convictions are not strong indicators of truthfulness, ante at 775 n.6, but every qualifying prior conviction, as here, has some probative value on the question of credibility, and the Legislature has so determined. See Commonwealth v. Reed,
The court implies that the Commonwealth’s failure in the
The court also concludes that because the prior convictions never were introduced at trial, factors concerning the effect of limiting instructions and whether the prosecutor referred to the convictions in his closing argument are not applicable in this case. I disagree. As the court acknowledges, these are factors to be considered in the balancing process before a judge decides to admit prior convictions for impeachment purposes. They are factors that we also must consider when deciding if the judge’s ruling was correct. “[W]e accept the basic premise that jurors can understand and will apply instructions that certain evidence is to be used by them for one purpose and not for another. Instructions concerning the jury’s use of evidence of prior convictions are not more difficult to understand and apply than many other instructions.” Commonwealth v. Leno,
We have noted that a prosecutor’s decision to omit any reference to a defendant’s prior convictions during closing argument
Two additional factors were not considered here, namely, that a judge may consider “the importance of the defendant’s taking the stand, [and] the weight of the factor of the defendant’s credibility in the decision of the issues of fact.” Commonwealth v. Diaz,
I believe the only factor that weighs in favor of the defendant in the balancing process is the similarity of his prior convictions to the crime charged. All others weigh in favor of the Commonwealth. The court acknowledges that the similarity between the prior convictions and the crime charged is but one factor in a balancing process, and although it is a significant factor, it alone is not enough to tip the balance. Ante at 773-774. See Commonwealth v. Bly,
The court concludes that the judge’s ruling was error because his reasoning for admitting the prior convictions was erroneous. Ante at 774. This analysis proceeds from reasoning used in other cases, see Commonwealth v. Fano, supra at 302 n.11, and cases cited, which I believe is faulty. The appeal is from the ruling, not the reasoning. The judge’s reasoning in these circumstances is not determinative; it is the correctness of the ruling to which we should look. For example, if a judge’s reasons for admitting a document or a photograph are faulty, we look to see whether there was some valid reason that would have supported the ruling. If such a reason exists, the ruling will be affirmed. See Commonwealth v. Jones,
At the end of the discussion of the balancing process the court states that “ ‘admission of evidence of prior convictions solely because of the similarity of the conviction to the crime being tried is reversible error’ (emphasis in original).” Ante at 774, quoting Commonwealth v. Fono, supra at 302 n.11. This sounds like per se error. If indeed our jurisprudence were so clear, there would have been no need to go through the balancing process undertaken by the court. The cases cited in Commonwealth v. Fono, supra, follow the same pattern. If the use of similar convictions constitutes reversible error, as the court concludes, then there was no need to discuss the judge’s erroneous reasoning in Commonwealth v. Guilfoyle,
Even if the judge’s ruling were erroneous, the defendant has failed to show that it has caused a substantial risk of a miscarriage of justice. In Commonwealth v. Crouse, supra at 564, 565, we held that a defendant who does not testify may challenge, on appeal, a decision by a trial judge to allow impeachment by use of prior convictions. We never suggested, however, that the rule we adopted in the Crouse case would reheve a defendant of his burden to create an adequate record for appellate review, such as making an offer of proof as to the substance of his proffered testimony. The record on appeal is silent regarding the defendant’s proffered testimony, including his explanation for keeping fifteen small baggies of marijuana in the crotch of his pants, or how he happened to have $254 in his pockets, predictably obvious questions that would have arisen on cross-examination. A defendant cannot improve his position by not testifying, as compared to a defendant who testifies and thereby creates a record by which an appellate court may consider the significance of his testimony as a factor in the balancing process. See Commonwealth v. Chase,
The decision not to testify in response to a ruling that admits similar prior convictions for impeachment does not implicate any constitutional right. See id. at 751 (this approach “has not commended itself as raising a valid due process challenge”). See also Commonwealth v. Crouse, supra at 566 n.7, and cases cited. The defendant’s failure to make an adequate record from which we properly may decide whether there has been a substantial risk of a miscarriage of justice leads to the inescapable conclusion that he has failed to satisfy his burden.
The court suggests that the “decision [to] admit the prior convictions effectively prevented [the defendant] from testifying.” Ante at 775. This is a finding of fact for which there is no record support. It also ignores the result in cases where a defendant did
Although the Commonwealth’s case is not overwhelming, I do not believe this case is as close as the court suggests. Ante at 775. The defendant had fifteen packets of marijuana secreted in the crotch of his pants, and he had $254 in his pockets. Unlike the defendant in Commonwealth v. Roucoulet, supra at 609, who had but a single marijuana cigarette, the defendant’s prior convictions here do not create the unfair prejudice by overkill that was presented in that case.
I do not believe there was error, and I do not believe the defendant has shown a substantial risk of a miscarriage of justice. I respectfully dissent.