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SJC-12068

COMMONWEALTH vs. CALVIN HORNE.

Suffolk. October 7, 2016. - January 10, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & 

Budd, JJ.

Controlled Substances. Evidence, Expert opinion, Relevancy and 

materiality.

Indictments found and returned in the Superior Court 

Department on October 4, 2012.

The cases were tried before Linda E. Giles, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Rebecca A. Jacobstein, Committee for Public Counsel 

Services, for the defendant.

Justin Florence for Massachusetts Association of Criminal 

Defense Lawyers & others, amici curiae.

Teresa K. Anderson, Assistant District Attorney, for the 

Commonwealth.

LENK, J. The defendant was convicted by a Superior Court

jury of possession of cocaine with intent to distribute. The 

Appeals Court affirmed the conviction, see Commonwealth v. 
2

Horne, 88 Mass. App. Ct. 1109 (2015), and we granted the 

defendant's application for further appellate review. The 

question before us is whether the admission in evidence of socalled "negative profiling" testimony, suggesting that the 

defendant did not look like a "crack" cocaine addict, gave rise 

to a substantial risk of a miscarriage of justice. We conclude 

that it did.1

1. Background. a. The defendant's arrest. We recite the 

relevant facts the jury could have found. In the early morning 

hours of September 14, 2012, the defendant was stopped by police 

on Colonial Avenue in the Dorchester section of Boston for 

traffic violations. The automobile that the defendant was 

driving was registered to a woman named Denise Barton.2 The 

officer who conducted the stop, Boston police Sergeant Thomas

Brooks, determined that the defendant's driver's license had 

 

1 We acknowledge the amicus brief submitted jointly by the 

Massachusetts Association of Criminal Defense Lawyers, the 

American Academy of Addiction Psychiatry, the American Society 

of Addiction Medicine, and the National Association of Social 

Workers.

2 The vehicle had been impounded in early August of 2012, 

when the vehicle's owner, Denise Barton, was arrested on charges 

of cocaine distribution. She had given the defendant a power of 

attorney to have the vehicle removed from the impound lot so it 

would not continue to accrue charges. Approximately two weeks 

before the events in question, the vehicle apparently was

released from the impound lot to another individual, Robert 

Williams, who had a prior conviction of unlawful possession of a 

firearm. The record does not disclose how or when the defendant 

ultimately came into possession of the vehicle.
3

been suspended. When Brooks, joined by Boston police Officer 

Pele James, attempted to arrest him, the defendant forcefully 

resisted. With the assistance of three additional officers, the 

defendant was subdued and placed under arrest.

Thereafter, the arresting officers found nearby a clear 

plastic bag containing twenty-six individually wrapped "rocks"

of crack cocaine, totaling 3.87 grams. The defendant apparently 

had kept the bag in his boot, which came off during the melee.

Later that night, Boston police Officer David Lanteigne

conducted an inventory search of the motor vehicle. He found 

two cellular telephones and eighty-three dollars in cash in the 

center console of the automobile, another cellular telephone on 

the driver's seat, and a gun in the trunk. He did not find any 

drug paraphernalia.

The defendant was charged with seven offenses as a result 

of the stop,3 including several gun-related charges and one count 

of possession of a class B substance (cocaine) with the intent 

 

3 The defendant was charged with unlawful possession of a 

firearm, G. L. c. 269, § 10 (h), as a subsequent offense, G. L. 

c. 269, § 10 (d); carrying a loaded firearm, G. L. c. 269, 

§ 10 (n); unlawful possession of ammunition, G. L. c. 269, 

§ 10 (h); two charges of assault and battery on a police 

officer, G. L. c. 265, § 13D; resisting arrest, G. L. c. 268, 

§ 32B; and possession of a class B substance (cocaine) with the 

intent to distribute, G. L. c. 94C, § 32A (c), as a subsequent 

offense, in violation of G. L. c. 94C, § 32A (d). After the 

verdicts, the defendant pleaded guilty to the subsequent offense

charge of possession of a class B substance (cocaine) with the 

intent to distribute.
4

to distribute, as a subsequent offense. The jury acquitted the 

defendant of the firearms-related charges and convicted him of

the other charges.

b. Challenged expert testimony. The Commonwealth notified 

defense counsel in advance of trial that a Boston police officer 

would testify as an expert to "several aspects of street-level 

narcotics activity including, but not limited to: common 

practices and activities of street-level drug dealers, the 

appearance, packing, and value of street narcotics, [and] the 

vernacular of illegal narcotics users and dealers." At trial,

Sergeant Detective William Feeney, a supervisor in the Boston 

police drug control unit, testified in keeping with the notice. 

In addition, Feeney testified as follows:

Q.: "And through your experience in observing and 

encountering . . . drug users, what are some of the 

characteristics that you've observed in [drug users], 

physical characteristics?"

A.: "Well, depending upon what type of drug they are 

addicted to they have different characteristics."

Q.: "Thank you, I'm going to ask a more specific question, 

if someone were addicted to crack cocaine what are 

some of the physical characteristics of a crack 

cocaine addict?"

A.: "Somebody that's a crack cocaine user that's been 

using for a time, most times their physical appearance 

will be changed from what they probably looked like at 

one point, to be very --"

At that point, the defendant's counsel requested a sidebar

conference at which she stated that "this [line of questioning] 
5

is getting a little wonky for lack of a better term, what people 

look like when they are addicted to crack." Her "understanding 

from notice from the Commonwealth" was that "[the prosecutor] 

said [that Feeney] was going to testify to drug distribution[,]

not what a drug addict looks like." The judge asked if counsel 

had received notice that Feeney was going to testify to signs of 

drug abuse and, when the defendant's counsel replied essentially 

in the affirmative, the judge remarked that "it's sort of common 

knowledge that crack addicts are going to exhibit certain 

physical signs and behavior," and allowed the line of 

questioning to continue.

The following exchange then took place:

Q.: "Sergeant Detective Feeney can you please describe for 

the members of the jury the crack addicts as you've 

observed them and in some cases arrested them, what 

are some of the physical characteristics that you've 

noted?"

A.: "Well, the majority of them you will notice them to be 

somewhat unkempt, very thin, physical appearances seem 

to be deteriorating, sometimes they'll have rotted 

teeth or worn down teeth from constantly grinding 

their teeth based on the addiction that results from 

the crack use."

The prosecutor then elicited testimony from Feeney concerning 

how much crack cocaine he typically would find when searching a

crack cocaine user, the commonly used instruments of drug 

dealers, and the manner in which drug dealers generally package 

cocaine. Feeney also testified, upon looking at a photograph of 
6

the crack cocaine in this case, that the cocaine "could be 

[packaged in] some ten dollar bags and . . . twenty dollar 

bags," suggesting an intent to distribute. At the end of his 

direct examination, Feeney testified that the packaging and 

amount of crack cocaine found near the defendant's boot, coupled 

with the eighty-three dollars, was consistent with an intent to 

distribute.

In his closing argument, the prosecutor emphasized Feeney's 

testimony concerning the physical characteristics of crack 

cocaine addicts, stating:

"How do you know he possessed [the crack cocaine] with 

the intent to distribute it, does he look like a drug 

addict? You saw the pictures of him, drug addicts, 

particularly crack cocaine addicts are skinny, they are 

thin, they have rotted teeth, they are drawn out. He's a 

big man, he's a big muscular man who gave it to Sergeant 

Brooks quite frankly and Officer [James], and they needed 

assistance to get him. He is not a drug addict; he 

possessed it with the intent to distribute it."

The jury convicted the defendant of possession of a class B 

substance (cocaine) with intent to distribute.

2. Discussion. On appeal, the defendant argues that it 

was error to allow Feeney to testify as to the typical physical 

characteristics of crack cocaine addicts, maintaining that such 

testimony was inadmissible negative profiling evidence.

a. Standard of review. The "admission of [expert 

testimony] is largely within the discretion of the trial judge 

and he [or she] will be reversed only where the admission 
7

constitutes an abuse of discretion or error of law."

Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). Where, as

here, the objection was not preserved,

4 we review the defendant's 

claim to "determine whether any error . . . created a 

substantial risk of a miscarriage of justice." Commonwealth v. 

Zimmerman, 441 Mass. 146, 150 (2004).5

b. Admissibility of negative profiling evidence. Twentyfive years ago, we determined in Commonwealth v. Day, 409 Mass. 

719, 723 (1991), that profiling testimony is inadmissible. In 

that case, we addressed whether there was error in the admission 

of an expert witness's testimony concerning the typical child 

 

4 Counsel's statement that Feeney's testimony was "getting a 

little wonky" was not the functional equivalent of an objection,

nor did her discussion at sidebar suggest that any incipient 

challenge would rest upon the impropriety of profiling evidence. 

Counsel instead seemed focused on whether proper notice of the 

testimony had been given. Moreover, counsel did not object to 

the prosecutor's closing argument recounting the profiling

evidence now at issue.

5 The Commonwealth also argues that, in any event, the 

admission of the profiling evidence could not have caused a 

substantial risk of a miscarriage of justice because the 

defendant's trial counsel presented a defense of absence of 

evidence of possession rather than lack of intent to distribute. 

The record, however, indicates that, while trial counsel 

maintained that the defendant did not possess the drugs, she 

also challenged the Commonwealth's evidence that he intended to 

distribute narcotics. She cross-examined Feeney on the type of 

activity he typically witnessed when surveilling and arresting 

drug dealers, and attempted to distinguish the defendant's 

circumstances. She also argued in her closing that because the 

cellular telephones in the vehicle the defendant was driving 

were not ringing and the officers had not seen the defendant 

making stops, "[t]here is no evidence that [the defendant] was 

distributing drugs that night."
8

abuser. Id. The expert's so-called "child battering profile" 

consisted of his view of several typical characteristics 

associated with child abusers. Id. at 722. By introducing this 

evidence, the prosecutor intended to demonstrate that the 

defendant matched the profile. We concluded that the expert's 

profiling testimony was both irrelevant and prejudicial to the 

defendant. Id. at 723.

In determining that the profiling evidence was irrelevant, 

we noted that a "criminal trial is by its very nature an 

individualized adjudication of a defendant's guilt or legal 

innocence." Id. "[T]he mere fact that a defendant fits the 

profile does not tend to prove that a particular defendant" 

committed a particular offense. Id. Additionally, the use of 

such evidence invites a jury to conclude that because an expert 

identifies an accused as fitting a particular profile, "it is 

more likely than not that [the accused] committed the crime"

(citation omitted). Id. at 723-724. In light of this, "[t]he 

use of criminal profiles as substantive evidence of guilt is 

inherently prejudicial to the defendant." Id. at 723.

The inadmissibility of profiling evidence consistently has 

been upheld in the intervening years. See, e.g., Commonwealth

v. Federico, 425 Mass. 844, 850 (1997) ("expert may not provide 

profiles or testify as to the typical attributes or 

characteristics of the perpetrators of child abuse"); 
9

Commonwealth v. Coates, 89 Mass. App. Ct. 728, 735-737 (2016) 

(sex abuser profile inadmissible); Commonwealth v. Poitras, 55 

Mass. App. Ct. 691, 694 (2002) (admission of child abuser 

profile erroneous); Commonwealth v. LaCaprucia, 41 Mass. App. 

Ct. 496, 501-502 (1996) (prosecutor's remarks suggesting 

defendant sexually abused his children because he fit mold of 

abuser improper).

6

The Commonwealth's effort to distinguish the challenged 

evidence from that held inadmissible in Day and its progeny is 

unavailing. At trial in this case, the Commonwealth attempted 

to prove that since the defendant did not match the physical

characteristics of a drug addict, he must be a drug dealer. On 

appeal, the Commonwealth maintains that this use of profiling 

evidence was permissible because it did not explicitly compare 

the defendant to the profile of a drug dealer. Contrary to the 

Commonwealth's assertion, however, such so-called negative 

profiling evidence -- where the goal is to demonstrate that a 

person does not fit a particular profile -- falls squarely

 

6 We note that the general bar against profiling evidence 

does not apply to instances where a medical expert testifies to 

the typical physical symptoms present in victims of a particular 

crime. See Commonwealth v. LeFave, 407 Mass. 927, 930-931 

(1990) (pediatric gynecologist's testimony concerning physical 

damage to genitalia common in sexually abused children 

admissible). See also Commonwealth v. Dockham, 405 Mass. 618, 

628-630 (1989) (expert testimony concerning general 

characteristics of abused child admissible).
10

within the scope of the profiling evidence we have long 

prohibited.

The rationale for this was explained recently in Coates, 89 

Mass. App. Ct. at 735, where the Appeals Court concluded that a 

defendant's proffer of expert testimony showing that he did not 

match the profile of a sex abuser had been properly excluded at 

trial.

7 The Appeals Court cogently observed that "[i]mplicit in 

the defendant's assertion that he [did] not match a criminal 

profile is the assumption that such a profile would be probative 

if introduced to prove that someone who matched the profile

would be more likely to have committed the crimes." Id. at 734. 

As the court noted, if the profile would be irrelevant to 

establish the defendant's guilt under Day, it also was

irrelevant when introduced for any other purpose. Id. at 734-

737. As the mirror image of the prototypical profiling evidence 

dealt with in Day, such negative profiling evidence serves the 

same impermissible end. It is an attempt to convince the jury 

to determine a defendant's guilt by comparing him or her to 

stereotypes rather than by individualized adjudication. Such 

evidence is inadmissible.

 

7 In an unpublished memorandum and order, see Commonwealth

v. Correa, 74 Mass. App. Ct. 1122 (2009), a panel of the Appeals 

Court concluded that the Commonwealth's use of expert testimony

"about the stereotypical cocaine addict" in order to establish 

that the defendant was a drug dealer, as here, was inadmissible 

because it constituted improper "profiling testimony."
11

Given the well-established proscription against the use of 

profiling evidence, the admission of Feeney's testimony

concerning the physical characteristics of crack cocaine addicts

was error. Moreover, as we stated in Day, 409 Mass. at 723, the 

use of such evidence was "inherently prejudicial" to the 

defendant.

c. Materiality of the error. An "error creates a 

substantial risk of a miscarriage of justice unless we are 

persuaded that it did not 'materially influence[]' the guilty 

verdict" (citation omitted). Commonwealth v. Alphas, 430 Mass. 

8, 13 (1999). In applying this standard, we analyze the 

potential impact of the error on the verdict, Commonwealth v. 

Randolph, 438 Mass. 290, 299 (2002), and review the record to 

determine the strength of the Commonwealth's case, absent the 

improper evidence, Commonwealth v. Kilburn, 438 Mass. 356, 362 

(2003). An error may be said to have materially influenced the 

verdict only if we are left with "a serious doubt [as to]

whether the result of the trial might have been different had 

the error not been made" (citation omitted). Commonwealth v. 

Azar, 435 Mass. 675, 687 (2002).

We may assume that Feeney's testimony was inherently 

prejudicial to the defendant. The impact of the testimony was 

magnified by the prosecutor's closing argument, in which the 

profiling testimony was presented as a key factor in 
12

demonstrating that the defendant intended to distribute the 

cocaine. The first thing the jury heard as to why the defendant 

did not possess the cocaine for personal use but intended to 

distribute it was that his physical appearance showed that he 

was not a drug addict. The prosecutor stated, "How do you know 

he possessed [the cocaine] with the intent to distribute it, 

does he look like a drug addict?" The prosecutor then continued 

to emphasize the profiling evidence, contrasting the defendant's 

size, strength, and physical appearance, with the "drawn out" 

appearance of a typical "skinny" crack cocaine addict with 

"rotted teeth."

The deceptively intuitive appeal of this entreaty provided 

it with a "superficial plausibility . . . [that] masked its 

profound flaws." Commonwealth v. Ferreira, 460 Mass. 781, 788 

(2011), quoting Commonwealth v. Ferreira, 77 Mass. App. Ct. 675, 

685 n.6 (2010) (Milkey, J., dissenting). While the prosecutor 

went on to argue the impact of other items of evidence, the 

simplest and most direct evidence, from the standpoint of the 

jury, sat a few feet away from them at the defense table. We 

think it unlikely that the profiling evidence was only of minor 

significance to the jury.

The Commonwealth's remaining evidence, while clearly 

sufficient to support the conviction, was not overwhelming. As 

proof that the defendant possessed the crack cocaine with the 
13

intent to distribute it, there was also evidence of (1) eightythree dollars found in the central console of the vehicle that 

the defendant was driving; (2) three cellular telephones, two 

found in the central console of the vehicle and one found on the 

driver's seat; and (3) twenty-six individual packets of crack 

cocaine packaged in what Feeney testified could be ten- and 

twenty-dollar bags that had been found near the defendant's 

boot. We consider each in turn.

While large amounts of cash can be probative of an intent 

to distribute, eighty-three dollars in cash would at best give 

rise to a weak inference. See Commonwealth v. Sepheus, 468 

Mass. 160, 166 (2014) (cash in amount of $312 not particularly 

large sum for purposes of demonstrating intent to distribute 

narcotics). As to the cellular telephones, while a defendant's 

possession of multiple cellular telephones may be probative of 

an intent to distribute, see, e.g., Commonwealth v. Dancy, 75 

Mass. App. Ct. 175, 178 (2009), it is far from clear whether all 

three cellular telephones found in the vehicle belonged to the 

defendant. The defendant contended at trial that two of the 

cellular telephones, both of which were located in the central 

console of the automobile, belonged to others. The vehicle that 

the defendant was driving, owned by Barton, had apparently 

recently been driven by Williams. See note 2, supra. The 
14

Commonwealth did not present any evidence demonstrating that the 

defendant used the cellular telephones.8

The Commonwealth's strongest evidence concerns the crack 

cocaine found on the street and inferably belonging to the 

defendant. The drugs were packaged in twenty-six individual 

bags, which Feeney testified could have had a street value of 

ten to twenty dollars each. While the drugs packaged as they 

were could be probative of an intent to distribute, see, e.g.,

Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999)

(possession of 2.04 grams of cocaine in eighteen "dime" sized 

bags probative of intent to distribute), the weight of the 

cocaine, 3.87 grams, is also consistent with personal use. See, 

e.g., Commonwealth v. Roman, 414 Mass. 642, 646-647 (1993) 

(possession of 25.6 grams of cocaine, without more, not enough 

to prove distribution).

The Commonwealth's admissible evidence, taken as a whole, 

was certainly sufficient to support the defendant's conviction. 

See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) 

(sufficiency of evidence determined based on whether evidence in 

light most favorable to Commonwealth supports conviction).

Nonetheless, the case against the defendant on the drug charge 

 

8 We also are mindful that the jury acquitted the defendant 

of the firearms-related charges despite the presence of a gun in 

the trunk of the vehicle that he was driving. This suggests 

that the jury did not accept the Commonwealth's argument that 

all of the items in the vehicle belonged to the defendant.
15

was not overwhelming. See Commonwealth v. Little, 453 

Mass. 766, 775 (2009) (where prosecution's case not 

overwhelming, error gave rise to substantial risk of miscarriage 

of justice). Given this, along with the inherently prejudicial 

impact of the error, magnified by the use of long-proscribed 

profiling evidence in the Commonwealth's closing, we are left 

with "a serious doubt [as to] whether the result of the trial 

might have been different had the error not been made" (citation

omitted). Azar, 435 Mass. at 687. Accordingly, we conclude 

that the error created a substantial risk of a miscarriage of 

justice.

3. Conclusion. The judgment is vacated and set aside. 

The matter is remanded to the Superior Court for further 

proceedings consistent with this decision.

So ordered.