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17-P-44 Appeals Court

COMMONWEALTH vs. ADMIRAL SUTHERLAND.

No. 17-P-44.

Hampden. January 19, 2018. - March 19, 2018.

Present: Blake, Neyman, & Ditkoff, JJ.

Controlled Substances. Evidence, Profile, Expert opinion, 

Authentication, Chain of custody. Witness, Expert.

Practice, Criminal, Required finding, New trial, Assistance 

of counsel.

Indictment found and returned in the Superior Court 

Department on October 13, 2010.

The case was tried before John A Agostini, J., a motion for 

a new trial was considered by him, and a motion for 

reconsideration was considered by him.

Barbara J. Sweeney for the defendant.

David L. Sheppard-Brick, Assistant District Attorney, for 

the Commonwealth.

BLAKE, J. Following a jury trial in the Superior Court, 

the defendant, Admiral Sutherland, was convicted of possession 
2

with intent to distribute heroin. Thereafter, he pleaded guilty 

to a charge that it was a subsequent offense. His motions for a 

new trial and for reconsideration were denied without a hearing. 

On appeal, the defendant claims that the admission of improper 

so-called "negative profiling" evidence amounted to reversible 

error, that there was insufficient evidence that the substance 

was heroin, and that it was an abuse of discretion to deny his 

motion for new trial. We affirm.

Background. The jury could have found the following facts. 

On September 11, 2010, Massachusetts State police Trooper Luis 

Rodriguez was conducting a community walk through1 in 

Springfield. Rodriguez noticed a black Nissan being driven by 

the defendant, who he knew did not have a valid driver's 

license. After the defendant parked the Nissan, Rodriguez 

arrested him for driving with a suspended license. While 

searching the defendant, Rodriguez found a package of 

cigarettes, which contained three bundles. Each bundle 

contained ten bags of what Rodriguez believed to be heroin. 

Rodriguez also found a small bag of what he believed to be 

marijuana in the defendant's possession.

 

1 The community walk through is one of the activities of the 

community action team, a task force that is focused on high 

crime areas. Rodriguez was with members of the Springfield 

police department and community leaders.
3

Within earshot of the defendant, Rodriguez discussed with 

another trooper his intention to apply for a warrant to search 

the defendant's home. Upon their arrival at the State police 

barracks, the defendant asked to use the telephone to arrange 

transportation for his daughter. Rodriguez dialed the telephone 

number provided by the defendant and handed him the telephone. 

The defendant said into the receiver, "They're coming. They're 

coming." Rodriguez immediately ended the telephone call and 

asked the defendant what he meant. The defendant responded that 

he wanted them to get rid of the "contraband" in the apartment.

At trial, Rodriguez, a seven-year veteran of the State 

police, testified that when he arrested the defendant, his 

appearance was not consistent with symptoms exhibited by drug 

addicts Rodriguez had encountered in the past. Without 

objection, Rodriguez testified that people looking for drugs

looked like "zombies." He said the defendant was not sweating 

profusely, did not have bloodshot eyes, did not appear ill or 

gaunt, and was not skinny or unhealthy looking on the day of his 

arrest. Rodriguez went on to say that the defendant looked the 

same at the time of trial as he did when he was arrested. 

Rodriguez did not find any items on the defendant consistent 

with personal use of heroin. He testified that, in his 

experience, ten bags of heroin were the most he had seen someone 

have on his person for personal use.
4

Kenneth Gagnon2 of the Massachusetts State police crime 

laboratory testified that the bags Rodriguez recovered from the 

defendant were a mixture of heroin, acetaminophen, caffeine, and 

quinine or quinidine.

Detective Gregg Bigda of the Springfield police department 

testified that he had spent eight years in the narcotics bureau 

and had extensive training and experience in investigating 

narcotics offenses. He described the manner in which heroin can 

be used, including the most common way, through injection. He 

described how heroin is prepared for injection, including the 

use of a spoon, lighter, and cotton balls. He testified that 

heavy heroin users consume anywhere from one to more than twenty

bags a day, and that they spend most of their day looking for 

their next bag. Bigda testified that, in his experience, heroin 

is typically sold in individual bags for personal use at a cost 

of $10 per bag. He indicated that heroin can sometimes be 

cheaper if it is purchased in bulk, and that three bundles3 could 

cost between $180 and $250.

Bigda also testified that a heroin addict often displays 

physical symptoms such as weight loss, poor hygiene, and poor 

 

2 Gagnon testified as a substitute chemist, as Dina 

DeFranco, who tested the substances, no longer worked at the 

lab. No objection to the substitute chemist was raised at 

trial, nor was it an issue raised on appeal.

3 A bundle is ten single-use bags packaged together.
5

dental health. He indicated these symptoms are not easy to 

mask, but that some users do not exhibit these symptoms and live 

relatively productive lives. He also testified that if someone 

had thirty bags of heroin without any drug paraphernalia, the 

person was probably selling narcotics, and that people with 

bundles of heroin are usually selling, although the vast 

majority of low-level drug dealers are also users. In 

determining whether someone is selling or using heroin, Bigda 

testified that quantity is a significant, but not the only 

factor.4

Bigda testified that it is not uncommon to arrest drug 

dealers without any money on their person, as dealers tend to 

keep their money and drugs separate to avoid losing both if they 

are arrested. He also testified that dealers often carry a 

small amount of drugs on their person and keep the main quantity 

of drugs at a separate location to avoid losing their investment 

if arrested. Lastly, he testified that a drug dealer often 

carries more than one type of narcotic to sell.

At trial, defense counsel conceded that the substance found 

on the defendant was heroin, but contended that it was for 

 

4 Bigda testified that it would be highly unlikely for a 

serious addict to buy three bundles at once due to the cost of 

such a large purchase.
6

personal use, and not for distribution.5 He stressed that Bigda 

did not find any money, pagers, or cellular telephones in the 

defendant's possession.

Discussion. 1. Negative profiling evidence. The 

defendant argues that the admission of Bigda and Rodriguez's 

testimony, which, taken together, indicated that the defendant

did not match the physical description of a drug user, i.e, socalled "negative profiling" evidence, was error. He relies on 

the holding of Commonwealth v. Horne, 476 Mass. 222 (2017), in 

support of his claim. Although Horne was decided after this 

trial, the Supreme Judicial Court held that the type of evidence 

deemed inadmissible there has long been prohibited. As Horne is 

not a new rule, it is applicable to this appeal. Compare

Commonwealth v. Libran, 405 Mass. 634, 645 (1989) (retroactive 

application of new rule). The Commonwealth concedes, as it 

must, that this evidence was erroneously admitted, but argues

that there was no substantial risk of a miscarriage of justice 

despite the error.6

 

5 The jury were instructed on the lesser included offense of 

possession. There was no objection to the instructions.

6 Although the defendant argues that he should prevail on 

appeal even under the substantial risk of a miscarriage of 

justice standard, he also contends that the issue was preserved 

and that the prejudicial error standard of review applies. We 

disagree. The defendant objected to the first question asked of 

Trooper Rodriguez involving "negative profiling," but not to the 

subsequent questions and answers. Moreover, this objection was 
7

While negative profiling evidence is inadmissible and 

"inherently prejudicial," it is not the sole factor to be 

considered in determining whether justice miscarried. Horne, 

supra at 228. Rather, the error must also "materially 

influence[] the guilty verdict," Commonwealth v. Alphas, 430 

Mass. 8, 13 (1999) (quotation omitted), and our review of the 

record must leave us with "a serious doubt [as to] whether the 

result of the trial might have been different had the error not 

been made," Commonwealth v. Azar, 435 Mass. 675, 687 (2002). In

Horne, the expert witness testified that crack cocaine users are 

generally unkempt, thin, have deteriorating physical 

appearances, and poor dental hygiene. Horne, 476 Mass. at 225. 

Here, while Bigda's testimony included this type of evidence, he 

also provided detailed admissible evidence, which aided the jury 

on the question of intent to distribute. See Commonwealth v. 

Little, 453 Mass. 766, 769 (2009) ("[A] [n]arcotics 

investigator[] may testify as [an] expert[] . . . [and] 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" [quotations omitted]). 

 

sustained and the Commonwealth was instructed to rephrase the 

question. Because the defendant failed to object to the 

remaining line of questioning (including questions posed to 

Detective Bigda), we review to determine whether the error 

created a substantial risk of a miscarriage of justice.
8

Bigda highlighted the importance of the quantity of drugs 

recovered, the deliberate separation of a smaller quantity of 

drugs from both money and a larger quantity of drugs, and the 

significance of more than one type of drug being carried by a

purported dealer. He also addressed the unlikelihood that a 

user would have three bundles of heroin at one time, simply 

because of the cost. This evidence was properly admitted as it 

was outside the common knowledge and experience of lay people 

and aided the jury in reaching a verdict. See Commonwealth v. 

Miranda, 441 Mass. 783, 793 (2004).7

Unlike Horne, where there was scant evidence of intent to 

distribute, here there was substantial properly admitted 

evidence of distribution. Indeed, the defendant's own words and 

deeds established distribution. After his arrest, he created a 

ruse about needing to use the telephone to arrange 

transportation for his daughter. Once the telephone call was 

placed, the defendant instructed the person on the other end of 

the telephone to dispose of any additional narcotics and related 

materials when he said, "They're coming. They're coming." This 

 

7 Rodriguez's testimony about the defendant's appearance, 

with the exception of the reference to drug users appearing to 

be "zombie[-like]," was also properly admitted testimony. See

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

detective qualified as expert). Although the use of the word 

"zombie[]" gives us pause, we conclude, based on the 

overwhelming evidence of intent to distribute, that this wording 

did not create a substantial risk of a miscarriage of justice.
9

constitutes strong evidence of consciousness of guilt, something 

that was also not present in Horne. See Commonwealth v. 

Stuckich, 450 Mass. 449, 453 (2008). Compare Commonwealth v. 

Montanez, 410 Mass. 290, 306 (1991) (defendant's flight was 

evidence of consciousness of guilt). The jury could have also 

considered the ruse and telephone call as evidence of the 

defendant's intent to distribute. See Commonwealth v. Perez, 76 

Mass. App. Ct. 439, 442 (2010) (defendant's attempt to dispose 

of drugs contributed to evidence of intent to distribute).

And, unlike Horne, the Commonwealth did not emphasize the 

negative profiling evidence in the closing argument. The focus 

was on the properly admitted evidence.8 Contrast Horne, 476 

Mass. at 228 (substantial risk of miscarriage of justice where 

prosecutor's closing argument began by focusing on defendant's 

appearance, and continued to emphasize profiling evidence, 

contrasting it with defendant's size, strength, and appearance). 

Finally, the judge's instructions to the jury, which they are 

presumed to follow, included factors that they could use in 

assessing whether the defendant possessed the heroin with the 

intent to distribute. The judge did not include in the list of 

factors the appearance of the defendant as compared to that of 

 

8 The prosecutor's closing argument discussing the 

defendant's appearance comprised one of eleven pages of 

transcript, and came at the end of the argument.
10

drug users. See Commonwealth v. Donahue, 430 Mass. 710, 718 

(2000) (jury is presumed to follow judge's instructions).

2. Sufficiency of the evidence. The defendant claims the 

evidence was insufficient to prove the substance he possessed 

was heroin. Although this issue was not contested at trial, the 

Commonwealth was required to prove this element, beyond a 

reasonable doubt. We view the evidence in the light most 

favorable to the Commonwealth. Commonwealth v. Latimore, 378 

Mass. 671, 677 (1979).

Rodriguez testified that the packets admitted at trial were 

the ones he confiscated from the defendant. Gagnon testified 

that the bags admitted at trial were the bags that were tested, 

and that they contained heroin. However, the defendant points 

to an alleged inconsistency between Rodriguez's testimony and 

the physical evidence submitted at trial. Specifically, the 

defendant asserts that although Rodriguez testified that he took 

thirty blue packets from the defendant, only twenty-eight pink 

packets were admitted in evidence at the trial. This argument 

fails, as there was no direct testimony that the packets taken 

from the defendant were blue. Rather, on cross-examination, 

Rodriguez acknowledged that in his police report, he stated the

packets were blue. This testimony was not admissible to prove 

the truth of the matter. See Commonwealth v. Costello, 411 

Mass. 371, 377 (1991). The jury were entitled to resolve any 
11

inconsistencies in Rodriguez's testimony. See Commonwealth v. 

Daughtry, 417 Mass. 136, 140 n.1 (1994). Furthermore, when 

resolving issues of sufficiency of the evidence, we resolve all 

issues of credibility in favor of the Commonwealth. See

Commonwealth v. Walker, 68 Mass. App. Ct. 194, 198-199 (2007).

The defendant's challenge is more properly cast as an 

attack on the authenticity of the evidence and the related chain 

of custody. As there was no objection to the authenticity, we 

review to determine if there was error, and if so, whether it 

created a substantial risk of a miscarriage of justice. See 

Commonwealth v. McCoy, 456 Mass. 838, 850 (2010). There was no 

error. The Commonwealth must show that the evidence had been in 

the defendant's possession. See Commonwealth v. Drayton, 386

Mass. 39, 48 (1982). Authenticity is determined by a

preponderance of the evidence. Commonwealth v. Siny Van Tran, 

460 Mass. 535, 546 (2011). See Mass. G. Evid. § 901(a) & note

(2017). Authenticity can be established by testimony that the 

item is what its proponent represents it to be, or where 

circumstances exist that imply the item is what its proponent 

represents it to be. Commonwealth v. Nardi, 452 Mass. 379, 396 

(2008). The Commonwealth established the authenticity of the 

evidence through both methods -- the direct testimony of 

Rodriguez and Gagnon's testimony about the bundles' chain of 

custody. Any discrepancies in the number of packets and their 
12

color go to the weight of the evidence, not its admissibility. 

See Commonwealth v. Dale, 86 Mass. App. Ct. 187, 191 (2014). 

Similarly, any weaknesses in the chain of custody go to the 

weight of the evidence, not its admissibility. Commonwealth v. 

Harris, 75 Mass. App. Ct. 696, 706 (2009). 

3. Motion for new trial. The defendant contends that 

trial counsel failed to notice and exploit discrepancies in the 

drug evidence, and that this failure constituted ineffective 

assistance, entitling him to a new trial. The motion judge, who 

was also the trial judge, denied the motion, ruling that the 

bundles were properly authenticated and admitted at trial; that 

any flaw or inconsistency in Rodriguez's testimony about the 

bundles was for the jury to resolve; and that an objection to 

authenticity would have been futile.

In assessing this claim, we must first determine whether 

counsel's performance fell below that which might be expected 

from an ordinary fallible lawyer. If so, we must determine 

whether better work might have accomplished something material 

for the defense. Commonwealth v. Saferian, 366 Mass. 89, 96 

(1974). We extend special deference to the action of the motion 

judge who, as here, was also the trial judge. Commonwealth v. 

Leng, 463 Mass. 779, 787 (2012).

Contrary to the defendant's argument, trial counsel did 

cross-examine Rodriguez on discrepancies between his report and 
13

the evidence. Trial counsel ended his recross-examination as 

follows:

Q.: "So when you're looking at the drugs . . . , can you 

tell the jury what color you described the packets as?"

A.: "In my report it's blue."

Q.: "Blue. Thank you."9

Trial counsel's decision not to attack the chain of custody 

was a reasonable tactical decision, particularly in view of the 

strength of the Commonwealth's case. See Commonwealth v. Lally, 

473 Mass. 693, 706 (2016) (counsel's strategic decision on focus 

of cross-examination was not "manifestly unreasonable"). Trial

counsel focused on the weakness of the Commonwealth's case --

intent to distribute -- particularly where the evidence of 

thirty bags of heroin could be for personal use. Trial counsel 

was not ineffective for choosing to forgo an argument of 

insufficient merit. See Breese v. Commonwealth, 415 Mass. 249, 

256 (1993).

Judgment affirmed.

Orders denying motion for

 new trial and for

 reconsideration affirmed.

 

9 The packets admitted at trial were pink.