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SJC-12617

COMMONWEALTH vs. JESSE CARRILLO.

Hampshire. February 4, 2019. - October 3, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & 

Kafker, JJ.

Homicide. Controlled Substances. Wanton or Reckless Conduct.

Practice, Criminal, Request for jury instructions.

Indictments found and returned in the Superior Court 

Department on September 28, 2015.

The cases were tried before John A. Agostini, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

J.W. Carney, Jr. (Reyna Ramirez also present) for the 

defendant.

Cynthia M. Von Flatern, Assistant District Attorney (Jeremy 

C. Bucci, Assistant District Attorney, also present) for the 

Commonwealth.

Leo Beletsky, of New York, & Lisa Newman-Polk, for 

Committee for Public Counsel Services & others, amici curiae, 

submitted a brief.

Maura Healey, Attorney General, & Randall E. Ravitz, 

Assistant Attorney General, for the Attorney General, amicus 

curiae, submitted a brief.
2

GANTS, C.J. In October 2013, Eric Sinacori, a twenty year 

old junior at the University of Massachusetts in Amherst, died 

from a heroin overdose. His death was yet another tragic loss

of a promising young adult whose life was cut short by the 

proliferation of heroin and other opioids that have ravaged

communities across the Commonwealth. The defendant, a graduate 

student at the university, had provided him with the heroin that 

caused his death. Following a jury trial, the defendant was 

convicted of involuntary manslaughter and distribution of 

heroin. We granted the defendant's application for direct 

appellate review.

On appeal, the defendant raises two arguments. First, he 

contends that the Commonwealth presented insufficient evidence 

to support the involuntary manslaughter conviction. Second, he 

claims that he is entitled to a new trial on the indictment 

charging distribution of heroin because the judge erred in 

denying his request to instruct the jury on the lesser included 

offense of possession of heroin for personal use.

To find a defendant guilty of involuntary manslaughter

caused by wanton or reckless conduct, our case law requires 

proof beyond a reasonable doubt that the defendant engaged in 

conduct that creates "a high degree of likelihood that 

substantial harm will result to another." Commonwealth v. 

Welansky, 316 Mass. 383, 399 (1944). Selling or giving heroin 
3

to another person may be wanton or reckless conduct where, under 

the circumstances, there is a high degree of likelihood that the 

person will suffer substantial harm, such as an overdose or 

death, from the use of those drugs. And in many cases the

circumstances surrounding the distribution of heroin will permit 

a rational finder of fact to find beyond a reasonable doubt that 

the transfer of heroin created a high degree of likelihood of 

substantial harm, such as an overdose or death. But not every 

case will present circumstances that make such conduct "wanton 

or reckless." This is one such case.

We conclude that the mere possibility that the transfer of 

heroin will result in an overdose does not suffice to meet the 

standard of wanton or reckless conduct under our law. The 

Commonwealth must introduce evidence showing that, considering 

the totality of the particular circumstances, the defendant knew 

or should have known that his or her conduct created a high 

degree of likelihood of substantial harm, such as an overdose or 

death.

Here, no evidence was presented during the Commonwealth's 

case-in-chief that would permit a reasonable jury to conclude 

that the inherent possibility of substantial harm arising from 

the use of heroin -- which is present in any distribution of 

heroin -- had been increased by specific circumstances to create 

a high degree of likelihood of substantial harm. For instance, 
4

the Commonwealth did not present evidence that the defendant 

knew or should have known that the heroin was unusually potent

or laced with fentanyl; evidence that Sinacori was particularly

vulnerable to an overdose because of his age, use of other 

drugs, or prior overdoses; or evidence that the defendant knew

or should have known that Sinacori had overdosed but failed to 

seek help. In the absence of any such evidence, we conclude 

that the Commonwealth did not meet its burden of producing 

sufficient evidence for a reasonable jury to conclude that the 

defendant's conduct in this case created a high degree of 

likelihood that Sinacori would suffer substantial harm, such as 

an overdose or death, from his use of the heroin. The 

defendant's conviction of involuntary manslaughter must 

therefore be vacated, and a required finding of not guilty 

entered.

We affirm the defendant's conviction of distribution of 

heroin. We conclude that, in the circumstances of this case, 

the judge did not err in denying the defendant's request for a 

lesser included jury instruction on simple possession, even 

though Sinacori asked the defendant to purchase heroin for him 

and the defendant did not profit from the sale. Where the 

defendant traveled alone to New York to obtain the heroin that 

he later sold to Sinacori, and where Sinacori played no active 

role in the purchase of those drugs, no reasonable jury could 
5

conclude that the defendant was anything other than a "link in 

the chain" of distribution of the heroin, rather than merely a 

joint possessor of the heroin for personal use.1

Discussion. 1. Involuntary manslaughter. We consider 

first whether the evidence was sufficient to support a finding 

of involuntary manslaughter beyond a reasonable doubt by a 

reasonable trier of fact. Because the defendant moved for a 

required finding of not guilty at the close of the 

Commonwealth's case, we review the sufficiency of only the 

evidence presented at the time the Commonwealth rested after its 

case-in-chief, viewing that evidence in the light most favorable 

to the Commonwealth. Commonwealth v. Berry, 431 Mass. 326, 330, 

332 (2000) (sufficiency of evidence determined "by an 

examination of the evidence at the close of the Commonwealth's 

case-in-chief"). We reserve discussion of the evidence offered 

by the defendant after the Commonwealth rested for our analysis

of his challenge to the judge's denial of his request for a jury 

instruction on the lesser included offense of possession of 

heroin for personal use.

 

1 We acknowledge the amicus briefs submitted by the Attorney 

General and by the Committee for Public Counsel Services, The 

Health in Justice Action Lab at Northeastern University School 

of Law, and Massachusetts Association of Criminal Defense 

Lawyers.
6

a. The evidence viewed in the light most favorable to the 

Commonwealth. In the fall of 2013, the defendant and Sinacori 

lived in the same neighborhood in Amherst. Both were heroin 

users. Based on the text messages presented in evidence, a 

reasonable fact finder could have inferred that the defendant 

met Sinacori shortly before September 30, 2013, and Sinacori 

learned that the defendant periodically traveled to purchase 

heroin. In a text message sent on September 30, Sinacori asked 

the defendant when he was making "the next run." Sinacori

indicated he would be willing to purchase "another bun" of 

heroin2 when the defendant made that "run." The defendant said 

he could provide two "buns" for $180, but if Sinacori wanted 

only one "bun," it would cost one hundred dollars. The 

defendant also sent a text message to Sinacori that he would 

have to pay in advance.

They arranged to meet on October 1, when the defendant left 

Massachusetts to travel to the Bronx borough of New York to pick 

up the "buns." During the defendant's trip, the defendant told 

Sinacori that he was also going to a drug store to purchase a 

 

2 The jury could infer through the totality of the evidence 

presented by the Commonwealth in its case-in-chief that a "bun" 

referred to a ten-bag "bundle" of heroin that cost one hundred 

dollars. This was later confirmed by the defendant in his 

testimony.
7

"new rig";3 Sinacori sent a text message that he would like to 

split a "10 pack" with the defendant, unless the defendant 

needed them all. The defendant, upon his return, invited 

Sinacori to his apartment to "[d]o some."

Sinacori went to the defendant's apartment that evening and

used heroin with the defendant. Later that night, Sinacori 

asked the defendant in a text message if he "could get another 

bun tomorrow." The defendant replied that if he were to "let go 

one from [his] headstash," he would charge "mad dollar" for it. 

Sinacori agreed to wait for the defendant's next trip; the 

defendant replied by text that he would be leaving at 5 P.M. on 

October 3. Sinacori gave the defendant seventy dollars before 

the defendant left on his trip, and asked the defendant to 

"spot" him thirty dollars. The defendant drove to the Bronx to 

buy heroin. At 8:44 P.M. that evening, the defendant sent 

Sinacori a text message stating, "Candy acquired," and added 

that he was on his way back. Later, the defendant sent a text

message that he was delayed because of traffic in Hartford, 

Connecticut. Sinacori replied that his "veins are crying" and 

that he was hurting. At 11:40 P.M., the defendant sent a text

message that he knew that Sinacori was "hurtin but u will very 

 

3 Although the Commonwealth did not explain or introduce 

evidence as to what a "rig" is in this context, it refers to 

"slang for a hypodermic needle and syringe used to inject 

heroin." State v. Ferrell, 2017-Ohio-9341 ¶16 (Ohio Ct. App.).
8

soon be in the loving comforting arms of Miss H." The defendant 

said he would drive to Sinacori's home so that Sinacori would 

not "have to go far in hurt mode." As he approached, the 

defendant asked Sinacori whether he had the balance of thirty 

dollars; Sinacori sent a text message that he only had twenty 

dollars. They agreed that either the defendant would give him 

"nine," inferably referring to nine out of ten bags of heroin, 

or Sinacori would get the remaining ten dollars the next day. 

The defendant arrived at Sinacori's home just before midnight, 

and at 12:20 A.M sent a text message to Sinacori to ask, "Ehh??? 

;)" and "How much tropicana did u drink?," which inferably was 

asking him how much heroin he had used.4 Sinacori did not reply 

to either text.

On the afternoon of October 4, Sinacori's father entered 

his son's apartment and found his son dead, with a used needle 

nearby. The police found three waxed bags with a Tropicana 

stamp that had been torn open, and six more bags that had not 

been opened. The analyst at the drug laboratory found that the 

bags contained heroin with a purity range of "roughly from 

[fifty-eight] to [sixty-nine] percent." The autopsy conducted 

by the medical examiner revealed that the cause of death was

"acute heroin intoxication." A toxicology specialist testified 

 

4 The brand of heroin purchased by the defendant bore the 

mark "Tropicana" on its packaging.
9

that the opiate found in Sinacori's blood was heroin and that no 

fentanyl was present in the blood.

From this evidence, a reasonable jury could have inferred 

that the defendant and Sinacori on October 1 together used the 

heroin the defendant had procured earlier that day from the 

Bronx. Two days later, the defendant traveled again to the 

Bronx to obtain a "bun" of heroin for Sinacori, and more heroin 

for himself. When the defendant was traveling through Hartford 

on his way back to Amherst, Sinacori was suffering from 

withdrawal pain. The defendant delivered nine bags of heroin to 

Sinacori that night, omitting one bag because Sinacori had 

apparently not paid the remaining ten dollars he owed to the 

defendant. Sinacori used three of those bags and this time 

overdosed, causing his death.

The Commonwealth contends that this evidence reveals at 

least two circumstances showing that the defendant knew or 

should have known that his conduct was wanton or reckless. 

First, there was evidence from the text messages that Sinacori 

was suffering from withdrawal symptoms ("my veins are crying") 

before he used the heroin, and the Commonwealth argues that the 

defendant should have known that an addicted person in 

withdrawal is more likely to overdose. But there was no expert 

evidence -- or even lay testimony -- that a heroin user is more 

likely to overdose when he or she is suffering from withdrawal. 
10

We cannot reasonably take judicial notice that this is true, or 

that the defendant or a reasonable person would know it to be 

true.

Second, the Commonwealth claims that when his text to 

Sinacori at 12:20 A.M. asking, "How much tropicana did u drink?" 

went unanswered, the defendant should have recognized that 

Sinacori had overdosed and immediately sought help. We decline 

to give so much inferential weight to the failure of a person to 

respond to such a text message.

In sum, there was no evidence that the defendant knew or 

should have known that the transfer of heroin to Sinacori 

created a high degree of likelihood of substantial harm, such as 

an overdose or death. As discussed in greater detail infra, 

where courts in drug-induced homicide cases have found the 

evidence sufficient to support a conviction of involuntary 

manslaughter, there generally has been evidence of specific 

circumstances that a reasonable person would understand to 

heighten the risk of harm, such as where the drugs were 

unusually potent, the user was particularly vulnerable to an 

overdose, or the defendant failed to seek help after the user 

became unconscious or unresponsive. Of course, this list is not 

exhaustive of all the circumstances that may increase the risk 

of serious harm.
11

In this case, however, the Commonwealth proved little more 

than the fact that heroin was transferred from one person to 

another. Here, the heroin in question was not laced or tainted 

with fentanyl; the defendant purchased the same brand of heroin 

for his own personal use; the defendant observed Sinacori use 

the same brand of heroin two days earlier without apparent

problem; the defendant did not personally inject Sinacori with 

heroin or any other drugs; there is no evidence that the 

defendant had any knowledge of any other drug or alcohol use by 

Sinacori that could have increased the likelihood of an 

overdose; and the defendant did not observe Sinacori overdose 

and fail to call for help. Nor was there any expert testimony 

regarding the relative potency of heroin of the purity that the 

drug laboratory analyst found, or regarding the likelihood that 

heroin of that purity would result in an overdose.

The issue we confront, then, is whether evidence of heroin 

distribution alone is sufficient to support a conviction of

involuntary manslaughter where the heroin caused a tragic death.

b. Wanton or reckless conduct in the context of a transfer 

of heroin. "Involuntary manslaughter is 'an unlawful homicide 

unintentionally caused by an act which constitutes such a 

disregard of probable harmful consequences to another as to 

amount to wanton or reckless conduct.'" Commonwealth v. Life 

Care Ctrs. of Am., Inc., 456 Mass. 826, 832 (2010), quoting 
12

Commonwealth v. Gonzalez, 443 Mass. 799, 808 (2005). Our model 

homicide instructions, adopting language from Commonwealth v. 

Welansky, 316 Mass. at 399, provide that "[w]anton or reckless 

conduct is conduct that creates a high degree of likelihood that 

substantial harm will result to another." Model Jury 

Instructions on Homicide 88 (2018) (involuntary manslaughter). 

See Welansky, supra ("The essence of wanton or reckless conduct 

is intentional conduct, by way either of commission or of 

omission where there is a duty to act, which conduct involves a 

high degree of likelihood that substantial harm will result to 

another"). In determining what actions are wanton or reckless, 

we focus on "the conduct that caused the result, . . . not the 

resultant harm" (emphasis added). Commonwealth v. Hardy, 482 

Mass. 416, 424 (2019).

The phrase -- "a high degree of likelihood that substantial 

harm will result to another" -- separates wanton or reckless 

conduct from the unreasonable risk of harm that constitutes 

negligence or gross negligence. As this court declared in 

Welansky, 316 Mass. at 399: "The words 'wanton' and 'reckless' 

are thus not merely rhetorical or vituperative expressions used 

instead of negligent or grossly negligent. They express a 

difference in the degree of risk and in the voluntary taking of 

risk so marked, as compared with negligence, as to amount 

substantially and in the eyes of the law to a difference in 
13

kind." The risk of harm must be more than a possible or 

unreasonable risk; it must reach a "high degree of likelihood." 

See id. See also id. at 397 ("Usually wanton or reckless 

conduct consists of an affirmative act, like driving an 

automobile or discharging a firearm, in disregard of probable

harmful consequences to another" [emphasis added]). And the 

harm to another person must be substantial, involving death or 

grave bodily injury. See Sandler v. Commonwealth, 419 Mass. 

334, 336 (1995) ("The risk of death or grave bodily injury must 

be known or reasonably apparent, and the harm must be a probable 

consequence of the defendant's election to run that risk").

Where the Commonwealth alleges that a defendant committed 

involuntary manslaughter by selling or giving heroin to another 

person, who died from its use, the distribution of that heroin 

must be proven to be wanton or reckless conduct, which means 

that the distribution must have created a high degree of 

likelihood of death or grave bodily injury. The most common 

risk of death or grave bodily injury from the distribution of 

heroin arises from the risk of an overdose. See National 

Institutes of Health: National Institute on Drug Abuse, Drug 

Facts: Heroin (revised June, 2019), https://www.drugabuse

.gov/publications/drugfacts/heroin [https://perma.cc/G43Q-6R6W]

(noting that heroin overdose results in "breathing [that] slows 

or stops, . . . decreas[ing] the amount of oxygen that reaches 
14

the brain, a condition called hypoxia[,] [which] can have shortand long-term effects and effects on the nervous system, 

including coma and permanent brain damage"). We recognize that 

every use of heroin presents the possibility of an overdose

causing death or grave bodily injury, but "a high degree of 

likelihood" of death or grave bodily injury requires more than 

the mere possibility of an overdose; it requires proof of a high 

degree of likelihood of an overdose. See Lofthouse v. 

Commonwealth, 13 S.W.3d 236, 241 (Ky. 2000) (conviction of 

reckless homicide based on transfer of illegal drugs "required 

proof beyond a reasonable doubt that there was a substantial and 

unjustifiable risk that [the victim] would die if he ingested 

the cocaine and heroin furnished to him by [the defendant]"); 

State v. Shell, 501 S.W.3d 22, 32-33 (Mo. Ct. App. 2016) (to 

prove involuntary manslaughter based on transfer of heroin, "it 

was incumbent upon the State to prove, beyond a reasonable 

doubt, that [d]efendant was aware of the risk that [d]ecedent's 

death was probable as a result of injecting heroin").5

 

5 We recognize that, in some circumstances, such as where 

the health of the user is already fragile, or the user employs 

contaminated needles, the use of heroin might pose a risk of 

death or grave bodily injury even without an overdose. We need 

not address that possibility here, where there was no evidence 

that Eric Sinacori's health was impaired or that any equipment 

he used to inject heroin was contaminated.

Similarly, we also recognize that there may be 

circumstances where a defendant provides heroin to a user who 
15

Our model jury instructions also provide:

"If the defendant realized the grave risk created by his 

conduct, his subsequent act amounts to wanton or reckless 

conduct whether or not a reasonable person would have 

realized the risk of grave danger. Even if the defendant 

himself did not realize the grave risk of harm to another, 

the act would constitute wanton or reckless conduct if a 

reasonable person, knowing what the defendant knew, would 

have realized the act posed a risk of grave danger to 

another."

Model Jury Instructions on Homicide, supra at 89-90. Therefore, 

to prove a defendant guilty of involuntary manslaughter in these 

circumstances, the Commonwealth must prove not only that the 

defendant's conduct created a high degree of likelihood that the 

user would overdose from the heroin, but also that the defendant 

knew of this high degree of likelihood or should have known of 

it, given his own personal knowledge and experience.

c. Massachusetts case law. "Perhaps it is a testament to 

prosecutorial discretion, trial judges properly dismissing cases 

based on insufficient evidence, and juries conscientiously 

performing their function that we have had few occasions to 

 

overdoses in the presence of the defendant, and the defendant 

fails to seek medical attention or other help to the overdose 

victim, who dies. In these circumstances, even if there was not 

a high degree of likelihood of an overdose, the failure of the 

person who provided the heroin that caused the overdose to 

exercise reasonable care to prevent the overdose victim from 

dying may be sufficient to support a conviction of voluntary 

manslaughter. See Commonwealth v. Levesque, 436 Mass. 443, 450 

(2002) ("Where a defendant's failure to exercise reasonable care 

to prevent the risk he created is reckless and results in death, 

the defendant can be convicted of involuntary manslaughter").
16

review convictions on the basis that the evidence was 

insufficient to prove 'wanton or reckless' conduct." Hardy, 482 

Mass. at 423. We have decided three cases where a defendant was 

prosecuted for involuntary manslaughter after providing heroin 

to a person who died from an overdose. Two were full opinions: 

Commonwealth v. Catalina, 407 Mass. 779 (1990), and Commonwealth

v. Auditore, 407 Mass. 793 (1990). The other, Commonwealth v. 

Perry, 416 Mass. 1003 (1993), was a short rescript opinion in 

which we adopted the analysis of the Appeals Court from the same 

case.

In each of these cases, the issue before the court was 

whether the evidence before the grand jury was sufficient to 

support the probable cause needed for an indictment, not whether

the evidence was sufficient to support a conviction of 

involuntary manslaughter. See Auditore, 407 Mass. at 796 

("Emphasizing that we are dealing only with the standard of 

probable cause"); Catalina, 407 Mass. at 789-790 ("The defendant 

has not yet been tried on this charge, so we are not concerned 

with whether sufficient evidence exists to warrant a finding of 

his guilt beyond a reasonable doubt. Rather, we consider only 

whether the information before the grand jury was adequate to 

establish his identity and probable cause to arrest him for the 

crime charged"). See also Perry, 416 Mass. at 1003-1004. This 

is the first case of involuntary manslaughter based on the 
17

transfer of drugs where we address the sufficiency of the 

evidence to support a finding of proof beyond a reasonable 

doubt, rather than probable cause.

The standard for probable cause "is a relatively low 

threshold, requiring only sufficiently trustworthy information 

to instill in a reasonable person the requisite belief of 

criminality" (quotations and citation omitted). Paquette v. 

Commonwealth, 440 Mass. 121, 132 (2003), cert. denied, 540 U.S. 

1150 (2004). Yet in finding probable cause in Catalina, 407 

Mass. at 790 n.12, we noted that "there was evidence that the 

defendant knew he was distributing a highly potent brand of 

heroin, that [the deceased] had a low tolerance for the drug and 

had overdosed in the past, that she could not handle a whole bag 

of this type of heroin, and that she needed to be warned not to 

'do a whole one.'" In finding probable cause in Auditore, 407 

Mass. at 796, we noted that the brand of heroin sold by the 

defendant "was twice as strong as the average dose," that he had 

a supply of this brand of heroin in his apartment in Gloucester, 

and that this brand of heroin "had caused at least two deaths by 

overdose in the Gloucester area." And in finding probable cause 

in the rescript opinion in Perry, 416 Mass. at 1004, we simply 

adopted the reasons advanced by the Appeals Court. In the 

Appeals Court opinion, it was noted that there was evidence that 

the defendant knew that the heroin she had obtained for the 
18

deceased was unusually dangerous; the defendant, after she 

learned that the deceased had collapsed after injecting himself, 

commented, "That's what happens when you get good stuff." 

Commonwealth v. Perry, 34 Mass. App. Ct. 127, 130 (1993). 

Consequently, even though the court in these cases was 

determining only whether there was probable cause to support an 

indictment for involuntary manslaughter, the court noted

circumstances in each of those cases that are not present here -

- facts that a reasonable person would understand to increase

the risk of substantial harm.

Two reported decisions by the Appeals Court have upheld 

convictions of involuntary manslaughter where the defendant 

provided illegal drugs to another person who overdosed and died. 

In both cases, there was specific evidence that the defendant 

knew or should have known that his or her conduct created a high 

degree of likelihood of substantial harm to another.

In Commonwealth v. Osachuk, 43 Mass. App. Ct. 71, 72 

(1997), the Appeals Court affirmed an involuntary manslaughter 

conviction where the defendant, having earlier provided the 

victim with methadone and having loaned her money to purchase 

cocaine, provided the victim with heroin, knowing that she 

intended to mix it with cocaine to produce a "speed ball," and 

then after she became unconscious, personally injected her with 

more cocaine to try to wake her up. "[E]xperts for both the 
19

Commonwealth and the defense agreed that the results of blood 

tests were consistent with death caused by cocaine, heroin and 

methadone intoxication." Id. at 73. Perhaps because of the 

weight of the evidence, the defendant on appeal challenged only 

the sufficiency of the evidence as to causation, and did not 

challenge whether the defendant's conduct was wanton or 

reckless.6 Id. at 71.

In Commonwealth v. Vaughn, 43 Mass. App. Ct. 818, 819-820 

(1997), the defendant injected the victim with heroin and, after 

she passed out and became unresponsive, left her alone "for some 

time," returned and slapped her in an effort to rouse her, and 

when that failed, he "went back downstairs and watched 

television." See id. at 825-826 (jury could infer defendant's 

subjective awareness of risks of injecting heroin from his 

conduct after victim passed out).

Another case, Commonwealth v. Walker, 442 Mass. 185 (2004), 

merits attention, although it did not concern the transfer of 

heroin. In Walker, the defendant repeatedly mixed a high dose 

of sleeping medication -- which contained a benzodiazepine 

called temazepam -- into drinks that he prepared for various 

women. Id. at 187-189 & n.3. Eventually, one woman died from a 

combination of temazepam and alcohol. Id. at 189. We affirmed 

 

6 The defendant here does not challenge the causal link 

between his conduct and Sinacori's death. 
20

the jury's conviction of involuntary manslaughter. Id. at 204. 

In so doing, we identified the specific evidence that proved 

that the defendant knew or should have known that his conduct 

created a high degree of likelihood that substantial harm would 

result. We noted first that the defendant used a particularly 

high dose, and that the Commonwealth introduced testimony from 

an expert who testified as to the toxicity of the dose the 

defendant administered. Id. at 189, 192. Importantly, we also 

noted that the defendant had engaged in such conduct on previous 

occasions and "watched [the] injurious effects take hold," and 

that he thus should have understood that his actions would 

likely "be toxic, if not lethal." Id. at 193.

The case now before us is unique, not only because it is 

the first time we have addressed the sufficiency of the evidence 

for an involuntary manslaughter conviction based on the 

distribution of heroin, but also because it is the first time we 

have confronted such a case where there was no evidence, for 

example, of the unusual potency of the heroin, of the 

vulnerability of the user to an overdose, or of the defendant's 

failure to seek help when the user appeared to overdose.

The Commonwealth contends that we have already decided that 

the distribution of heroin of unknown strength alone, without 

more, is sufficient to support a conviction of involuntary 
21

manslaughter. In making this argument, the Commonwealth relies 

upon our statement in Perry:

"In Commonwealth v. Catalina, 407 Mass. 779, 790-791 

(1990), . . . we held that the distributing of a 

particularly potent form of heroin to one who injected it 

and died as a result constituted evidence sufficient for an 

indictment by a grand jury of manslaughter. See [id.] at 

790 n.12. However, we did not limit the effect of this 

rule to that specific form of heroin because all heroin of 

unknown strength is inherently dangerous and carries a 

'high probability that death will occur.' Id. at 791, 

quoting with approval People v. Cruciani, 70 Misc. 2d 528, 

536 (N.Y. [Suffolk Co. Ct.] 1972)."

Perry, 416 Mass. at 1004.

The last sentence of this statement is dictum; in Catalina, 

as earlier noted, we identified considerable evidence that the 

defendant should have recognized would result in substantial 

harm, and therefore did not need to address whether the 

indictment could survive without any such evidence. But it is 

admittedly powerful dictum because, if it is true that the use 

of "all heroin of unknown strength . . . carries 'a high 

probability that death will occur,'" then the distribution of 

heroin alone would suffice to support a finding of wanton or 

reckless conduct because it would always create "a high degree 

of likelihood that substantial harm will result to another." 

And we note that at least one other State court has relied on 

this language from our Catalina and Perry opinions for the 

proposition that, in Massachusetts, the distribution of heroin 

alone is sufficient to support a guilty finding of involuntary 
22

manslaughter where the heroin causes the user's death. See

State v. Miller, 874 N.W.2d 659, 664 (Iowa App. 2015). We now 

reject that proposition.

The Commonwealth put forth no evidence at trial that the 

use of heroin generally carries a "high probability" of death or 

even overdose. In the absence of such evidence, if the 

assertion that "all heroin of unknown strength . . . carries 'a 

high probability that death will occur'" is to be used to 

support the sufficiency of evidence at trial, a reasonable 

person must know this to be true. But we cannot infer that a 

reasonable person would know this to be true unless it indeed is 

true. Neither this court in Perry or Catalina, nor the New York 

trial court in Cruciani, where the statement originated, 

provided any empirical factual support for that statement.7

 

7 In the New York case cited by the court, People v. 

Cruciani, 70 Misc. 2d 528, 529, 537 (N.Y. Suffolk Co. Ct. 1972), 

the trial judge denied the defendant's motion to dismiss the 

counts in the indictment charging reckless manslaughter in the 

second degree and criminally negligent homicide. It is 

noteworthy that, after the defendant was convicted of reckless 

manslaughter, the Court of Appeals of New York, in affirming the 

conviction, rejected the defendant's claim that the evidence of 

recklessness was insufficient by noting that "the proof 

show[ed], among other things, that defendant Cruciani injected 

[the victim] with heroin (1) when, in his own words, she was 

already 'completely bombed out on downs' (depressants like 

morphine into which heroin is rapidly converted by the body's 

metabolic processes), (2) at a time when she had lost the 

capacity to 'walk or talk straight', and (3) despite his 

admission of awareness that there was a substantial possibility 

that a further injection in her then drug-saturated state would 

cause her to 'fall out' (in modern vernacular of drug users, 
23

Heroin is undoubtedly an inherently dangerous drug, and 

heroin overdoses have undoubtedly caused a tragic number of 

deaths. See Massachusetts Department of Public Health, Data 

Brief: Opioid-Related Overdose Deaths among Massachusetts 

Residents, at 2 (Feb. 2019), https://www.mass.gov/files

/documents/2019/02/12/Opioid-related-Overdose-Deaths-among-MAResidents-February-2019.pdf [https://perma.cc/2Z2Z-RN2W] (over 

1,000 Massachusetts residents died from opioid-related overdoses

each year between 2014 and 2018). But we can find no evidence -

- nor has the Commonwealth pointed us to any -- proving that any 

use of heroin of unknown strength carries a "high probability" 

of substantial harm, such as an overdose or death. According to 

recent data gathered by the Substance Abuse and Mental Health

Services Administration, in 2017 approximately 652,000 Americans 

suffered from "heroin use disorder," which is defined as 

"clinically significant impairment caused by the recurrent use 

of heroin." Substance Abuse and Mental Health Services 

Administration, Key Substance Use and Mental Health Indicators 

in the United States: Results from the 2017 National Survey on 

Drug Use and Health 33 (2017), https://www.samhsa.gov

/data/sites/default/files/cbhsq-reports/NSDUHFFR2017

/NSDUHFFR2017.pdf [https://perma.cc/V92Q-2DJ8]. And 886,000 

 

that she would die)." People v. Cruciani, 36 N.Y.2d 304, 305

(1975).
24

Americans used heroin that year. Id. at 19. Among those 

individuals, the Centers for Disease Control and Prevention 

reported 15,482 drug overdose deaths involving heroin. National 

Institutes of Health: National Institute on Drug Abuse, 

Overdose Death Rates (revised Jan. 2019), https://www.drugabuse

.gov/related-topics/trends-statistics/overdose-death-rates

[https://perma.cc/2ZC8-X7NN]. This is, of course, a national 

tragedy. But as devastating as the heroin epidemic has been, we 

cannot rationally conclude from this data that every single 

instance of heroin distribution carries a "high probability" 

that the user will die.

The rate of overdose, of course, is higher than the rate of 

death. Reliable data regarding the incidence of overdoses (or 

the ratio of overdoses to deaths) is more difficult to obtain 

than data regarding the incidence of death, because so many 

overdoses are unreported. The Centers for Disease Control and 

Prevention has estimated that in 2015, 81,326 emergency 

department visits occurred for "heroin-related poisonings" in 

the United States, a year in which 12,989 individuals were 

reported to have died from drug overdoses involving heroin. See 

Centers for Disease Control and Prevention, 2018 Annual 

Surveillance Report of Drug-Related Risks and Outcomes 19,

https://www.cdc.gov/drugoverdose/pdf/pubs/2018-cdc-drugsurveillance-report.pdf [https://perma.cc/23PU-QN3B]; Rudd, 
25

Seth, David, & Scholl, Increases in Drug and Opioid-Involved 

Deaths -- United States, 2010-2015, 65 MMRW 1445, 1450 (Dec. 30, 

2016). But even if we recognize that the rate of overdose 

substantially exceeds the rate of death, we still could not 

reasonably assume that all heroin of unknown strength carries a 

high probability that overdose will occur, or that a reasonable 

person would know that to be true. It is fair to assume that a 

reasonable person would know that the use of heroin of unknown 

strength is inherently dangerous and carries a significant 

possibility of overdose or death. But to suggest that a 

reasonable person would know that any use of heroin carries a 

high probability or a substantial likelihood of overdose or 

death is a bridge too far.8

 

8 It is worthy of note that the dramatic increase in the 

overdose death rate over the past decade is mainly attributable 

to the widespread introduction of synthetic fentanyl. See 

National Institutes of Health: National Institute on Drug 

Abuse, Overdose Death Rates (revised Jan. 2019), https:

//www.drugabuse.gov/related-topics/trends-statistics/overdosedeath-rates [https://perma.cc/2ZC8-X7NN]. According to the 

Massachusetts Department of Public Health, "[a]mong the 1,902 

[Massachusetts] opioid-related overdose deaths in 2018 where a 

toxicology screen was also available, 1,695 of them (89%) had a 

positive screen result for fentanyl. In the fourth quarter of 

2018, heroin or likely heroin was present in approximately 32% 

of opioid-related overdose deaths that had a toxicology screen."

Massachusetts Department of Public Health, Data Brief: OpioidRelated Overdose Deaths among Massachusetts Residents 2(May 

2019), https://www.mass.gov/files/documents/2019/05/15/Opioidrelated-Overdose-Deaths-among-MA-Residents-May-2019.pdf

[https://perma.cc/2BSH-YY8T]. As discussed supra, the 

toxicology results of Sinacori's blood revealed heroin, not 

fentanyl.
26

The creation of a per se rule -- that the transfer of 

heroin to a person addicted to heroin, without more, is 

sufficient to support a finding of the required element of 

wanton or reckless conduct -- is inconsistent, both 

jurisprudentially and empirically, with the requirement that 

conduct, to be found wanton or reckless, must create a high 

degree of likelihood that substantial harm will result to 

another. For all practical purposes, an indictment for 

involuntary manslaughter premised on the transfer of heroin 

revises the definition of wanton or reckless. We decline to 

carve out a heroin exception to our law of involuntary 

manslaughter. Nor need we do so where the distribution of 

heroin alone carries severe penalties and where, when specific 

evidence of circumstances increasing the risk of harm is proven, 

a distribution of heroin resulting in death may be punished as 

involuntary manslaughter.

d. Approach of other State courts. Although the 

definition of "wanton or reckless" as applied to involuntary 

manslaughter is not uniform among the fifty States, we think it 

worthy of note that numerous State appellate courts that have

recently considered the issue have declined to adopt a per se 

rule that the distribution of heroin alone, without more, 

suffices to support a verdict of involuntary manslaughter.
27

The Supreme Court of Kentucky in Lofthouse, 13 S.W.3d at

241, in vacating a conviction of reckless homicide, rejected 

both the defendant's "proposition that furnishing controlled 

substances to one who subsequently dies from their ingestion can 

never support a conviction of criminal homicide and the 

Commonwealth's proposition that such will always support a 

conviction" (emphasis in original). Id. The court highlighted 

the importance of additional evidence:

"[G]uilt of criminal homicide, like any other offense, 

depends upon proof. . . . For example, in the Tennessee 

case of State v. Randolph, [676 S.W.2d 943 (Tenn. 1984)],

there was evidence that another of one defendant's 

customers had died the same way two weeks earlier, and that 

another defendant knew that the heroin sold to the victim 

was 'uncut' and dangerous because it had not been diluted. 

And in the New York case of People v. Cruciani, [36 N.Y.2d 

304 (1975)], there was evidence that the defendant injected 

the victim with heroin after she was already 'bombed out' 

on depressants and that the defendant was aware of the 

substantial possibility that the injection would cause the 

victim's death." 

Lofthouse, supra.

The Missouri Court of Appeals in Shell, 501 S.W.3d at 32, 

vacated a defendant's conviction of involuntary manslaughter 

where the "[d]efendant's [only] affirmative act was delivering 

heroin to" the victim. The court concluded that, despite State 

testimony by a forensic pathologist of the inherent risk of 

heroin overdose, the State did not prove beyond a reasonable 

doubt that the defendant acted recklessly, because it did not 

prove beyond a reasonable doubt that the victim's death was 
28

probable under the circumstances. Id. at 33. It further noted 

that "[w]hile we recognize the concern of the heroin epidemic 

and the rise in deaths as a result of heroin use . . . [t]o rule 

as the State suggests and hold that [the d]efendant acted 

recklessly simply by providing [the victim] with heroin would 

create a per se involuntary manslaughter rule, which we are 

unwilling [to] impose upon criminal defendants absent clear 

legislative intent." Id.

The Court of Appeals of Iowa came to a similar conclusion, 

also vacating a conviction of involuntary manslaughter arising 

out of an overdose death. See Miller, 874 N.W.2d at 667. The 

court determined that, without circumstances increasing the risk 

of harm, there was insufficient evidence to establish that the 

defendant acted recklessly. Id. at 666 (there must be "evidence 

establishing an increased risk of death and the defendant's 

awareness of an elevated risk of overdose and death beyond mere 

delivery of the controlled substance"). As to the State's 

suggestion "that the delivery of heroin, without more, is always 

substantial evidence of recklessness," the court rejected "this 

per se or categorical approach," id. at 664, for three reasons:

"First, such an approach is inconsistent with our case law 

regarding criminal recklessness. The mere delivery of 

heroin, without more, does not necessarily establish a 

sufficiently material increase in the probability of the 

proscribed harm. More important, the per se approach is 

inconsistent with the culpability aspect of recklessness, 

in which the jury must determine whether the defendant had 
29

or should have had a 'subjective awareness of the risk' 

such that his disregard of the increased risk warrants 

criminal sanction. . . . Second, the per se approach is 

inconsistent with our general approach to criminal 

proceedings, which requires the State to prove beyond a 

reasonable doubt each and every element of the 

offense. . . . Third, adopting a rule of strict liability 

for death resulting from delivery of a controlled substance 

is a policy decision best addressed by the legislature 

rather than the judiciary."9

 

9 As to this third point, at least eighteen States have 

enacted laws providing for strict liability homicide where a 

person transfers heroin to another who later overdoses and dies. 

See Alaska Stat. § 11.41.120(a)(3) (manslaughter); Colo. Rev. 

Stat. § 18-3-102(1)(e) (murder in first degree only as to 

distribution to minor on school grounds); Fla. Stat. 

§ 782.04(1)(a)(3) (murder in first degree); 720 Ill. Comp. Stat.

5/9-3.3 ("drug-induced homicide" with minimum sentence of 

fifteen years); La. Rev. Stat. Ann. § 14:30.1(A)(3) (second 

degree murder); Mich. Comp. Laws § 750.317a (drug-induced 

homicide with sentence up to life); Minn. Stat. § 609.195(b) 

(murder in third degree); N.H. Rev. Stat. § 318-B:26(IX) (strict 

liability homicide with sentence up to life); N.J. Stat. Ann. 

§ 2C:35-9 (strict liability homicide); N.C. Gen. Stat. § 14-

17(b)(2) (second degree murder); Okla. Stat. tit. 21, § 701.7(B)

(murder in first degree); 18 Pa. Cons. Stat. § 2506 ("drug

dealing resulting in death" as homicide offense); R.I. Gen. Laws

§ 11-23-6 (drug-induced homicide only as to distribution to 

minor, carrying life sentence); Tenn. Code Ann. § 39-13-

210(a)(2) (second degree murder); Wash. Rev. Code § 69.50.415

("controlled substances homicide"); W. Va. Code § 61-2-1 (murder 

in first degree); Wis. Stat. § 940.02(2)(a), (b) (first degree 

reckless homicide); Wyo. Stat. Ann. § 6-2-108 (drug induced 

homicide).

Three other States ratchet up the permissible sentencing 

range for drug distribution where it results in death from an 

overdose. See Del. Code Ann. tit 16, § 4752B; Kan. Stat. Ann. § 

21-5430; Vt. Stat. Ann. tit. 18, § 4250.

The Massachusetts Legislature has considered strict 

liability homicide legislation but did not enact it. See 2017 

Senate Doc. No. 2158 at 7 ("Any person who . . . distributes[ ] 

or dispenses heroin . . . is strictly liable for a death which 

results from the injection, inhalation or ingestion of that 

substance, and shall be punished by imprisonment for life or for 
30

Id. at 664-665.

Most recently, in State v. Thomas, 464 Md. 133, 140 (2019), 

the Court of Appeals of Maryland -- Maryland's highest court --

affirmed the defendant's conviction of involuntary manslaughter

on the theory of gross negligence but declared that "a per se 

rule providing that all heroin distribution resulting in death 

constitutes gross negligence involuntary manslaughter is unwise 

and not in keeping with our precedent." Id. at 167. "Instead," 

the court stated, "we must consider the inherent dangerousness 

of distributing heroin with the attendant environmental risk 

factors presented by each case." Id.10 That conclusion is 

consistent with our holding here.

 

any term of years as the court may order, and by a fine or not 

more than $25,000; provided, however, that the sentence of 

imprisonment . . . shall not be reduced to less than 5 years, 

nor suspended, nor shall any such person be eligible for 

probation, parole or furlough or receive a deduction from his or 

her sentence for good conduct until such person shall have 

served 5 years of such sentence").

A bill with the same text as the 2017 bill was reintroduced 

in 2019. See 2019 House Doc. No. 1411.

10 We recognize that the court in State v. Thomas, 464 Md.

133, 145, 147-150, 180 (2019), found the evidence sufficient to 

establish gross negligence involuntary manslaughter based on 

facts comparable to those in the instant case: the victim was 

known to be drug addicted, the defendant had sold four bags of 

heroin to the nineteen year old victim on the night he died from 

an overdose, the defendant himself had regularly used four bags 

of the same heroin product and had not overdosed, there was no 

evidence of the unusual potency of the heroin, and, when 

confronted with the victim's death, the defendant told the 
31

Today we simply reaffirm that "guilt of criminal homicide, 

like any other offense, depends upon proof." Lofthouse, 13 

S.W.3d at 241. Where there is specific evidence that the 

defendant knew or should have known that his or her conduct 

created "a high degree of likelihood that substantial harm will 

result," Welansky, 316 Mass. at 399, the Commonwealth may indeed 

convict the person who sold or gave the heroin to the decedent 

of involuntary manslaughter. But here, the Commonwealth in its 

 

police lieutenant, "He couldn't have overdosed off what I sold 

him; I only sold him four bags."

But we also recognize that the legal standard in Maryland 

for gross negligence involuntary manslaughter differs from our 

legal standard for involuntary manslaughter, even though 

Maryland law equates "'gross negligence' with a 'wanton or 

reckless disregard for human life'" (citation omitted). Id. at 

153. Although the common law of Massachusetts defines wanton or 

reckless conduct as conduct that creates a high degree of 

likelihood that substantial harm will result to another, under 

the common law of Maryland, "'gross negligence' mens rea is 

established by asking whether the accused's conduct, under the 

circumstances, amounted to a disregard of the consequences which 

might ensue and indifference to the rights of others"

(quotations omitted). Id., quoting State v. Albrecht, 336 Md. 

475, 500 (1994). The Thomas court added that, for criminal 

gross negligence, "the inherent dangerousness of the act engaged 

in, as judged by a reasonable person, . . . is combined with 

environmental risk factors which, together, make the particular 

activity more or less 'likely at any moment to bring harm to 

another'" (emphasis added). Thomas, supra at 159, quoting 

Johnson v. State, 213 Md. 527, 533 (1957). Indeed, the court 

noted that the holdings of the Kentucky court in Lofthouse, 13 

S.W.3d at 241, and the Iowa court in Miller, 874 N.W.2d at 663,

were "inapt" because the standard for criminal gross negligence 

in those States "requires the State to demonstrate a higher 

'probability of harm' than the one borne out by our cases." 

Thomas, supra at 166.
32

case-in-chief proved little more than that Sinacori overdosed 

and died after using heroin given to him by the defendant; it 

proved no additional facts that transformed the inherent 

possibility of an overdose arising from any use of heroin into a 

high degree of likelihood of an overdose. As a result, the 

evidence was insufficient to support a finding beyond a 

reasonable doubt that the defendant knew, or that a reasonable 

person would have known, that there was a high degree of 

likelihood that Sinacori would overdose from the use of that 

heroin. Consequently, the conviction cannot stand. We remand 

the case to the Superior Court for entry of a required finding 

of not guilty on the involuntary manslaughter indictment.

2. Failure to give instruction on the lesser included 

offense of simple possession of heroin. As another consequence 

of his transfer of heroin to Sinacori, the defendant was 

convicted of distribution of heroin in violation of G. L. 

c. 94C, § 32.11 The second issue on appeal is whether the judge 

erred by declining to instruct the jury on the lesser included 

offense of simple possession of heroin. The defendant argues 

that the jury should have been given the opportunity to convict 

 

11 The defendant was sentenced on the heroin distribution 

conviction to two years and six months in a house of correction, 

with one year to serve and the balance suspended and five years'

probation. He was sentenced to a concurrent probation term of 

five years on the involuntary manslaughter conviction.
33

him only of possession, not distribution, because he and 

Sinacori were engaged in a "joint venture" to possess heroin 

when the defendant purchased it in New York. The defendant 

twice requested this instruction -- before trial and after the 

close of all the evidence -- and objected to the judge's refusal 

to give it. Accordingly, we review the judge's decision for 

prejudicial error. Commonwealth v. Henderson, 434 Mass. 155, 

158 (2001).

In contrast with our evaluation of the sufficiency of the 

evidence of involuntary manslaughter, where we considered only 

the evidence that was presented before the defendant moved for a 

required finding of not guilty after the Commonwealth rested its 

case-in-chief, here we review all the evidence presented at 

trial to determine whether it would permit the jury to find the 

defendant guilty only of simple possession. See id. "In 

determining whether any view of the evidence would support a 

conviction on a lesser included offense, 'all reasonable 

inferences must be resolved in favor of the defendant,' 

Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975)."

Commonwealth v. Gilmore, 399 Mass. 741, 746 (1987), quoting 

Commonwealth v. Egerton, 396 Mass. 499, 503 (1986). If the 

evidence would so permit, "a judge must, upon request, instruct 

the jury on the possibility of conviction of the lesser crime" 
34

(citation and emphasis omitted). Commonwealth v. Roberts, 407 

Mass. 731, 737 (1990).

a. The defendant's testimony. The defendant testified in 

his own defense and admitted that he possessed heroin on the 

evening in question and gave some of that heroin to Sinacori. 

The defendant testified that he frequently drove from Amherst to 

the Bronx -- up to four times per week -- to purchase heroin for 

his own personal use. After Sinacori asked the defendant to 

purchase some heroin for him, the defendant on October 1, 2013, 

collected one hundred dollars from Sinacori and drove to New 

York to purchase heroin both for himself and for Sinacori. Upon 

his return, he and Sinacori each used some of their own heroin

in the defendant's apartment. Sinacori sent him a text message 

on October 3 to ask if he was "making another run," which the 

defendant understood to mean that Sinacori wanted more heroin. 

Sinacori provided the defendant with seventy dollars to purchase 

seven bags of heroin, and promised to give the defendant another 

thirty dollars later that evening in exchange for a total of ten 

bags. As he had done when he previously went to New York to buy 

heroin for himself and Sinacori, the defendant put Sinacori's

money -- and then the heroin once it was purchased -- in a 

different pocket to keep their respective shares separated. 

Sinacori was ultimately only able to produce another twenty 

dollars, so the defendant gave Sinacori nine bags and kept the 
35

remaining one out of the ten-pack for himself, in addition to 

the other heroin that he had bought for himself.

Sinacori did not accompany the defendant to New York in 

either instance. There was no evidence that Sinacori himself 

had any interaction with the defendant's supplier in New York or 

had any role in negotiating prices. In contrast, the defendant 

frequently purchased his own heroin from the same supplier, 

sometimes negotiating for discounts. On September 30, for 

example, before the October 1 "run" to buy heroin for himself 

and Sinacori, the defendant sent Sinacori a text message 

indicating that he would try to get a "deal" on twenty bags.

b. Discussion. The statutory scheme governing 

distribution of controlled substances defines "[d]istribute" as 

"to deliver other than by administering or dispensing a 

controlled substance." G. L. c. 94C, § 1. "Deliver" is defined 

as "to transfer, whether by actual or constructive transfer, a 

controlled substance from one person to another, whether or not 

there is an agency relationship." Id. The defendant contends 

that, although he literally delivered heroin to Sinacori, he did 

not deliver the heroin within the meaning of G. L. c. 94C, § 1, 

because Sinacori jointly and constructively possessed his share 

of the heroin at the same time that the defendant purchased it 

in New York, and the defendant thus could not "deliver" or 

"distribute" heroin that Sinacori already possessed. See State
36

v. Morrison, 188 N.J. 2, 14 (2006) ("It hardly requires stating 

that the 'transfer' of a controlled dangerous substance cannot 

occur . . . if the intended recipient already [legally] 

possesses that substance"). In view of the relevant case law 

and the factual circumstances in this case, however, we are not 

persuaded that a reasonable jury could have found that Sinacori 

jointly possessed his share of the heroin when the defendant 

purchased it for him in New York.

In Commonwealth v. Johnson, 413 Mass. 598, 605 (1992), we 

held that "to purchase [narcotics], even with friends' money, 

intending to transfer it to them, constitutes distribution," in 

violation of G. L. c. 94C, § 32. While we recognized an 

exception "[w]here two or more persons simultaneously and 

jointly acquire possession of a drug for their own use intending 

only to share it together," which would constitute joint 

possession, this is "limited to the situation when the persons 

. . . are there at the acquisition together and simultaneously 

acquire." Id. at 604. Of course, "[n]o cases require literal 

simultaneous possession" or acquisition, Weldon v. United 

States, 840 F.3d 865, 867 (7th Cir. 2016), but Johnson suggests 

that all parties engaged in joint possession must at least be 

physically present at the time the drugs are acquired. We 

further held in Commonwealth v. Fluellen, 456 Mass. 517, 525 

(2010), that a joint possession theory is "inapplicable to 
37

circumstances where a defendant facilitates a transfer of drugs 

from a seller to a buyer." See Commonwealth v. Jackson, 464 

Mass. 758, 763 (2013) (facilitating transfer of drugs "can 

constitute the crime of distribution even if the defendant 

intends to share some of the drug with the buyer"); Commonwealth

v. Rodriguez, 456 Mass. 578, 584 n.8 (2010) (distinguishing 

"defendant's transfer of cocaine he had just purchased, which 

would constitute distribution, [and] his division of the cocaine 

that [he and another] had simultaneously and jointly acquired, 

which would constitute joint possession"). In short, the crime 

of distribution occurs "whenever the defendant serves as 'a link 

in the chain' between supplier and consumer." Jackson, supra at 

764, quoting Fluellen, supra.

Here, the defendant argues that we should revisit our rule 

that drugs are jointly possessed only where both persons were 

present when the drugs were acquired. First, he contends, in 

essence, that Johnson and its progeny are no longer good law in 

light of our holding in Commonwealth v. Zanetti, 454 Mass. 449, 

462 (2009), where we held that a defendant need not be 

physically present at the crime scene to be found guilty as a 

joint venturer. Second, he argues that, in spite of Johnson, 

physical presence at the time of acquisition is not required 

where "the absent [party] was then entitled to exercise joint 

physical possession" of the illicit drugs (emphasis in 
38

original). State v. Carithers, 490 N.W.2d 620, 622 (Minn. 

1992). We address these arguments in turn.

In Zanetti, 454 Mass. at 463, we amended the formulation 

for joint venture liability that was articulated in Commonwealth

v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983), which 

provided that "[t]he test [for joint venture] is whether each 

defendant was (1) present at the scene of the crime, (2) with 

knowledge that another intends to commit the crime or with 

intent to commit a crime, and (3) by agreement is willing and 

available to help the other if necessary." Concluding that this 

framework was confusing and failed to respect "the spirit behind 

the common law as now reflected in the aiding and abetting 

statute, G. L. c. 274, § 2," we instead adopted the formulation 

of aiding and abetting in cases where there was evidence "that 

more than one person may have participated in the commission of 

the crime." Zanetti, supra at 467. In so doing, we clarified 

that an accomplice who knowingly participated in the offense 

with the intent required for that offense may be convicted of 

the offense as a joint venturer even if not physically present 

at the scene of the crime. Id. at 462, 467. See Commonwealth

v. Brown, 477 Mass. 805, 813 (2017), cert. denied, 139 S. Ct. 54 

(2018), quoting Commonwealth v. Silanskas, 433 Mass. 678, 690 

n.13 (2001) ("A defendant may be convicted as a coventurer when 

he or she is not present at the scene of the crime 'so long as 
39

the jury [find] [that the defendant] had actually associated 

[himself or herself] with the criminal venture and assisted in 

making it a success'").

The flaw in the defendant's argument is that, since the 

time we decided the Zanetti case, we have repeatedly reaffirmed 

the requirement that both persons be physically present at the 

time of acquisition in order to show joint possession of 

narcotics under G. L. c. 94C. See Jackson, 464 Mass. at 763; 

Fluellen, 456 Mass. at 524-525. And, as we made clear in 

Zanetti, our "shift from the language of joint venture to the 

language of aiding and abetting does not enlarge or diminish the 

scope of existing joint venture liability." Zanetti, 454 Mass. 

at 468. Nor does it change our definition of joint possession.

Second, the defendant suggests, essentially, that our 

holding in Johnson requiring physical presence at the time of 

acquisition should be reexamined in light of our legal 

principles of constructive possession. Certainly, the 

possession of heroin "need not be exclusive," but "may be joint 

and constructive." Commonwealth v. Beverly, 389 Mass. 866, 870 

(1983). See Instruction 3.220 of the Criminal Model Jury 

Instructions for Use in the District Court (2009) (possession) 

("A person can also 'possess' something even if he is not its 

sole owner or holder. For example, a person is considered to 
40

'possess' something which he owns or holds jointly with another 

person, who is keeping it for both of them").

And, to be sure, various courts have concluded that "[a] 

buyer could have 'constructive possession' before actual

delivery," United States v. Palacios-Quinonez, 431 F.3d 471, 475 

(5th Cir. 2005), cert. denied, 547 U.S. 1035 (2006), such as 

where a defendant so directly orders the "disposition or 

movement of the drug as to warrant the inference he possesses 

it." Id., quoting Armstrong v. Superior Court, 217 Cal. App. 3d 

535, 539 (1990). See United States v. Pelusio, 725 F.2d 161, 

167 (2d Cir. 1983), quoting United States v. Craven, 478 F.2d 

1329, 1333 (6th Cir. 1973), cert. denied, 414 U.S. 866 (1973)

("Constructive possession exists when a person . . . knowingly 

has the power and the intention at a given time to exercise 

dominion and control over an object, either directly or through 

others"). Consequently, a defendant who directs a courier to 

pick up a substantial quantity of heroin on his or her behalf 

may be found to have possessed the drugs once the courier 

obtained the drugs, even where the defendant is not present at 

the pick-up, and therefore may be found guilty of possession 

with intent to distribute if the drugs are seized when they are 

still in the courier's possession. See, e.g., United States v. 

Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986) ("doctrine of 

constructive possession . . . creates a legal fiction to take 
41

care of such cases as that of a drug dealer who operates through 

hirelings who have physical possession of the drugs. It would 

be odd if a dealer could not be guilty of possession, merely 

because he had the resources to hire a flunky to have custody of 

the drugs"); United States v. Felts, 497 F.2d 80, 82 (5th Cir. 

1974), cert. denied, 419 U.S. 1051 (1974) ("a party who 

instigated the sale, negotiated the price, and caused the drug 

to be produced for the customer had constructive possession of 

it," which is sufficient to support conviction of possession 

with intent to distribute).

But here, the issue is whether a reasonable jury could 

conclude that the delivery the defendant made to Sinacori was 

not a "distribution" of drugs, but was instead a joint 

possession of drugs for personal use. In Commonwealth v. 

Blevins, 56 Mass. App. Ct. 206, 209 (2002), the Appeals Court 

identified circumstances where a defendant charged with 

distribution was entitled to a requested instruction on simple 

possession:

"The evidence -- that the defendant and his two companions 

were friends who on occasion shared drugs; that the three 

had pooled their money to purchase drugs they intended to 

share; that they each participated in the negotiation for 

the purchase of drugs; and that all were present when the 

drugs were paid for and received -- was, if believed, 

sufficient to support a finding that the drugs were 

simultaneously and jointly acquired and intended to be 

shared only by the three purchasers."
42

Similarly, the United States Court of Appeals for the 

Seventh Circuit in Weldon, 840 F.3d at 867, concluded that a 

defendant may be guilty only of drug possession rather than of 

drug distribution where three friends "agreed to get high 

together, they shared the expense, they all went together to the 

drug dealer, and they shared the drug they bought from him." 

The fact that the defendant was the one who got out of the 

vehicle, paid the pooled money to the drug dealer, and carried 

the drugs back to the vehicle for the three of them to share did 

not necessarily mean that he was guilty of drug distribution. 

Id. at 866.12

If we were faced with facts comparable to those in Weldon, 

where equal partners participated in a drug purchase but only 

one partner walked to the supplier's vehicle to receive the 

drugs, we might need to revisit the rule in Johnson that drugs 

can be jointly possessed for personal use only where all persons 

were present when the drugs were acquired. But we need not 

 

12 The court reasoned:

"Suppose you have lunch with a friend, order two 

hamburgers, and when your hamburgers are ready you pick 

them up at the food counter and bring them back to the 

table and he eats one and you eat the other. It would be 

very odd to describe what you had done as 'distributing'

the food to him. It is similarly odd to describe what [the 

defendant] did as distribution."

Weldon v. United States, 840 F.3d 865, 866 (7th Cir. 2016).
43

revisit that rule here, because we do not have facts comparable 

to those in Weldon. In this case, the defendant traveled 

several hours across State lines to purchase the heroin while 

Sinacori remained in Amherst. There was no evidence that 

Sinacori had any involvement in negotiating the transaction. In 

contrast, the defendant explained to Sinacori the prices that 

were available, and the defendant alone had a role in trying to 

bargain for discounts. Moreover, the record reveals no evidence 

that Sinacori knew who the defendant's supplier was, or that he 

even knew precisely where the defendant was going. And when 

Sinacori was unable to pay the defendant for all the heroin that 

he purchased, the defendant kept a bag for himself, exercising a 

certain level of control over the drugs that he obtained from 

his supplier.

Here, unlike in Weldon, the defendant giving the drugs to 

Sinacori -- rather than vice-versa -- was not the result of a 

mere fortuity or convenience. The defendant was the "middle

man," the link in the chain between supplier and buyer, who 

facilitated the sale of drugs to the buyer -- Sinacori. The 

fact that the defendant made no profit from the transaction is 

not dispositive as to whether he distributed the drugs rather 

than jointly possessed them for personal use. See Johnson, 413 

Mass. at 605. What is dispositive is that the defendant's 

active role in this transaction differed substantially from 
44

Sinacori's passive role -- the defendant knew the supplier, 

negotiated prices, traveled alone to obtain the heroin, and 

determined whether he would share the heroin with Sinacori. See 

People v. Edwards, 39 Cal.3d 107, 114 (1985) (distinguishing 

scenario with "equal partners" in consummation of drug purchase, 

which would be joint possession, from scenario where one person 

"instigated the purchase and was actively involved in arranging 

and consummating the deal, while [the other] was wholly passive 

and merely accepted the heroin," which would be distribution). 

On the facts of this case, viewed in the light most favorable to 

the defendant, we conclude that no reasonable jury could have 

concluded that the defendant was guilty only of the simple 

possession of heroin. The judge therefore did not err in 

denying the defendant's request for the lesser included 

instruction.

Conclusion. The order denying the defendant's request to 

instruct the jury on the lesser included offense of simple 

possession of heroin is affirmed, as is the judgment of 

conviction of distribution of heroin. As to the defendant's 

conviction of involuntary manslaughter, the judgment is vacated, 

the verdict is set aside, and the case is remanded to the 

Superior Court for entry of a required finding of not guilty.

So ordered.