COMMONWEALTH v. CRAPPS (2013)

At the conclusion of a jury-waived trial, a Superior Court judge convicted the defendant of trafficking in twenty-eight to one hundred grams of “crack” cocaine, G.L. c. 94C, § 32E(b )(2).¹ On appeal, the defendant presents two challenges to the sufficiency of the evidence. He contends that the Commonwealth failed to prove (1) that he constructively possessed the drugs found in the center console of the automobile which he was driving; and (2) that the weight of the crack cocaine exceeded twenty-eight grams because the Commonwealth's chemist improperly extrapolated the net aggregate weight of the crack cocaine from a sampling of the packets found in the console. For the following reasons, we affirm.

Background. The evidence permitted the judge to find the following facts. In July, 2009, Springfield police were conducting surveillance of the defendant. On one occasion, they observed him driving a white Lexus sport utility vehicle (SUV). The registration of the SUV identified the owner as Matrisa Collins, the defendant's girlfriend, with whom he shared an address. On July 23, 2009, the police observed the defendant driving the SUV with no passengers. He drove to a store parking lot, where a female entered the passenger's side of the SUV. The SUV traveled a very short distance and then stopped. The woman got out and walked away.

These observations prompted the police to stop and to search the SUV and, later, the defendant.² The officers recovered (1) a white tube sock in the center console containing (a) a plastic bag of thirty-six individual packets of apparent crack cocaine; and (b) a plastic bag containing a larger chunk of apparent crack cocaine; (2) sixty-six dollars in cash; (3) on the front passenger's side seat, the defendant's personal papers; (4) from the driver's side door pocket, a cellular telephone; and (5) from the defendant's pants pocket, $585 in cash.

At trial, a chemist from the University of Massachusetts drug laboratory testified that the substances were crack cocaine. She testified also to the net weight of the drugs, and to the process of extrapolated measurement of that weight. She randomly had chosen four packets from the thirty-six, or approximately ten percent of the total, and entered their weights into a computer program (Excel). The program then computed an average weight of the four packets and a standard deviation to produce an aggregate net weight of the thirty-six packets of 14.29 grams. Because the larger chunk weighed 17.58 grams, the total net weight of the substances reached 31.87 grams.

Analysis. 1. Constructive possession. A challenge to sufficiency requires review of the evidence in the light most favorable to the Commonwealth. Under the settled standard, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To establish constructive possession, the Commonwealth must prove a defendant's (a) knowledge of the contraband; (b) ability to control it; and (c) intention to exercise control over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325 (1989). Commonwealth v. Boria, 440 Mass. 416, 418, 798 N.E.2d 1017 (2003). Commonwealth v. Gonzalez, 452 Mass. 142, 146, 892 N.E.2d 255 (2008). Mere presence is insufficient proof. Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977). Commonwealth v. Romero, 464 Mass. 648, 653, 654, 984 N.E.2d 853 (2013). Rather, “additional inculpatory evidence” beyond a defendant's presence in, and operation of, a vehicle is necessary. Id. at 654, 984 N.E.2d 853. Additional incriminating evidence can “tip the scale in favor of sufficiency.” Id. at 653, 984 N.E.2d 853, quoting from Commonwealth v. Albano, supra. Here the evidence passes the tipping point.

The defendant was the driver and the sole occupant of the SUV. He lived with the registered owner of the vehicle; the previous day, she had permitted him to use the SUV. Exclusive and continuous operation of the SUV both supported the inference of the defendant's knowledge of its contents and reduced the number of possible alternate possessors. Contrast Commonwealth v. Almeida, 381 Mass. 420, 422–423, 409 N.E.2d 776 (1980) (no constructive possession of weapon in center console of vehicle which defendant had borrowed that evening); Commonwealth v. Romero, supra at 650, 656–657, 984 N.E.2d 853 (no constructive possession where defendant driver had multiple passengers in vehicle, and had no specific connection to weapon).

In addition, the police had observed suspected drug dealing behavior: the brief visit of the female passenger, the short drive to nowhere, and the passenger's quick exit. During the search, the police found the defendant's personal papers on the passenger's side seat adjacent to the console. These circumstances strengthen the link between the defendant and the location of the drugs. See Commonwealth v. Clark, 446 Mass. 620, 624, 846 N.E.2d 765 (2006) (constructive possession where [a] cocaine found in center console; and [b] defendant had control of vehicle; even though [c] the Commonwealth did not establish ownership of vehicle); Commonwealth v. Lee, 2 Mass.App.Ct. 700, 704–705, 319 N.E.2d 732 (1974) (constructive possession supported by evidence of personal papers in apartment where police found heroin). Additional indicia of intent to control the drugs included the defendant's possession of $585 in cash as inferable sales revenue, and the cellular telephone in the driver's side door pocket as an inferable instrument of deals and delivery.³

In sum, the aggregate evidence exceeds the defendant's mere presence in, or operation of, the vehicle. It “tip[ped] the scale in favor of sufficiency,” Commonwealth v. Romero, supra at 653, 984 N.E.2d 853 (citation omitted), and permitted the judge to find both knowledge of the presence of the drugs and the ability and intent to exercise control over them. The evidence placed this case in the category of automobile decisions in which a defendant's proximity, access, and collateral conduct (here, his sole occupancy of the vehicle, and the brief visit by a suspected buyer) permitted the inference of an intention to exercise control over contraband or forbidden weaponry in the vehicle. See, e.g., Commonwealth v. Sadberry, 44 Mass.App.Ct. 934, 936, 692 N.E.2d 103 (1998) (weapon under driver's seat; motion of concealment as police approached); Commonwealth v. Bienvenu, 63 Mass.App.Ct. 632, 638, 828 N.E.2d 543 (2005) (defendant, who owned vehicle, in back seat in close proximity to drug dealing instrumentalities); Commonwealth v. Cotto, 69 Mass.App.Ct. 589, 592–593, 870 N.E.2d 109 (2007) (defendant's proximity to weapon beneath his automobile seat and his foot movement pushing it out of sight raise circumstantial evidence above level of mere presence).

2. Weight by extrapolation. The defendant challenges the extrapolated calculation of the weight of the thirty-six packets of crack cocaine found in the console. An essential element of the crime of trafficking in a class B substance (such as crack cocaine) under G.L. c. 94C, § 32E(b ) (2), as in effect at the time of the defendant's conviction, was that the weight of the substance amount to twenty-eight grams, or more, but less than one hundred grams. See Commonwealth v. Johnson, 410 Mass. 199, 201, 571 N.E.2d 623 (1991). Conviction of trafficking in an amount within that range brought a mandatory minimum term of imprisonment of not less than five years. G.L. c. 94C, § 32E(b )(2).⁴ Conviction of trafficking in an amount of fourteen or more grams, but less than twenty-eight grams, carried a mandatory minimum term of not less than three years. G.L. c. 94C, § 32E(b ) (1).⁵

Massachusetts precedent permits extrapolation processes. See Commonwealth v. Johnson, supra at 201 & n. 1, 571 N.E.2d 623 (identifying Federal and State jurisdictions allowing similar method of computation); Commonwealth v. Shea, 28 Mass.App.Ct. 28, 33, 545 N.E.2d 1185 (1989) (permitting “representative tests” where “numerous suspected bags ․ are received for official analysis, all with substances evidently alike—as to color, consistency, packaging, smell, etc.”); Commonwealth v. Coplin, 34 Mass.App.Ct. 478, 485, 612 N.E.2d 1188 (1993) (accepting chemist's “random sampling” of twenty out of 174 packets of cocaine to calculate average weight per package and to impute weight to other 154 packets).

Here, in closing argument, defense counsel questioned the validity of extrapolated measurement on the ground of the allegedly disparate sizes of the packaged crack cocaine units. That contention framed the issue for the judge as the trier of fact. Defense counsel had cross-examined the chemist aggressively about her conduct of the extrapolation. The question is whether the thirty-six packets presented an array of sufficiently proximate sizes to permit the use of an average weight from a representative sampling. The packets came in evidence as an exhibit. The judge was able to inspect the exhibit and to assess the relative sizes of the individual packets in light of the defendant's claim of a disparity rendering extrapolation unreliable. We are in no position to usurp his fact finding. We trust lay jurors with similar judgments. See Commonwealth v. Connolly, 454 Mass. 808, 831–832, 913 N.E.2d 356 (2009) (by extrapolation, jury may determine that “large, hard ball” weighed more than four ounces). Under the Latimore standard, we should respect the comparable determination of an experienced trial judge. In the light most favorable to the Commonwealth, the evidence permitted a rational trier of fact to find the aggregate weight of the packets and the larger chunk (an exhibit of undisputed weight) to amount to twenty-eight grams or more. See Commonwealth v. Latimore, 378 Mass. at 677, 393 N.E.2d 370.

This case offers a useful observation. The extrapolated weighing of multiple units of drugs is likely to present a recurrent issue. In cases in which an extrapolated figure places the charged weight marginally at or above a statutory gradient triggering a greater offense and a longer imprisonment,⁶ defense counsel should develop and present any challenge to the extrapolation by pretrial discovery, and pretrial conference and memorandum.⁷ By analogy, to preserve objections to deoxyribonucleic acid (DNA) analysis, a “defendant must file an appropriate pretrial motion stating the grounds for the objections, and must request a hearing in accordance with the principles set forth in Canavan's Case, 432 Mass. 304, 309–312, 733 N.E.2d 1042 (2000), and Commonwealth v. Lanigan, [419 Mass. 15, 24–27 (1994) ],” to test the reliability of a scientific or technical premise for proffered evidence. Commonwealth v. Murphy, 59 Mass.App.Ct. 571, 575, 797 N.E.2d 394 (2003), citing Commonwealth v. Sparks, 433 Mass. 654, 659, 746 N.E.2d 133 (2001). The presentation of the issue well in advance of trial will enable a judge to inspect a challenged exhibit and, if necessary, to order a hearing upon the validity of the extrapolation process.

In a case of weight only marginally above a statutory boundary, the pretrial conference may prove especially valuable to expose and to solve (by related papers or preliminary hearing, as necessary) such issues as the reliability of the randomness of the elements of the selected sampling by protocols or standards, the use of standard deviation factors, and the employment of computer algorithms, if any. We cite these questions as potential matters, and not as either a mandatory or an exhaustive agenda. This cautionary approach does not require the Commonwealth routinely to employ sophisticated statistical methods for the presentation of every representative sampling.⁸ Nor does it compel the prosecution to prove the precise weight of the drugs. It need only establish that the weight exceeds the relevant threshold.

Extrapolation serves valid purposes, including performance of the Commonwealth's duty to prepare cases in accordance with the defendant's constitutional right to a speedy trial and its duty to employ finite public resources efficiently,⁹ and accomplishment of the prosecution's entitlement to scientifically valid methods of proof. If the Commonwealth does submit statistical proof in lieu of precise total measurement, it should be prepared to demonstrate the reliability of its extrapolation, particularly in cases of results falling close to the line.

We do not pass beyond these general observations. The concurrence pushes forward to a discussion of “elementary precepts of statistics.” Post at. However nothing in the parties' briefs or the record appendix undertakes that effort. We do not have the benefit of specific evidence and an adversary dialogue, or reference to technical sources, concerning detailed statistical methods. While the effort of the concurrence is commendable, appellate discussion should not outdistance the supply lines provided by the work of the parties' attorneys and the trial judge. We should not travel too far out in front of the record and the briefs, and into territory of little or no precedent.

In this case, the decisive question is whether “any rational trier of fact could have found” that the aggregate weight of the seized drugs amounted to twenty-eight grams or more. See Commonwealth v. Latimore, 378 Mass. at 677, 393 N.E.2d 370, quoting from Jackson v. Virginia, 443 U.S. at 318–319. An experienced judge as fact finder received the testimony of the chemist, the physical collection of the challenged packets, and the arguments of counsel upon the disputed point. The Latimore standard entitles his finding to respect. We cannot vacate it upon the basis of statistical arguments never submitted to him or to us.

Judgment affirmed.

I agree with the majority that “[w]e cannot vacate [the judgment] upon the basis of statistical arguments never submitted to [the trial judge] or to us.” Nevertheless, as explained infra, I have concerns about whether the Commonwealth's use of statistical methods here was proper. I join in affirming the judgment only because the defendant failed to preserve the issue.¹

The Commonwealth offered testimony that the weight of the “crack” cocaine exceeded the relevant statutory threshold for the crime charged, and that testimony was admitted without objection. Accordingly, there is no merit to the defendant's claim that the evidence of weight was insufficient as a matter of law. See Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 98–99, 920 N.E.2d 45 (2010). What the defendant really appears to be suggesting is that this evidence never should have been admitted because the Commonwealth had not established the reliability of the underlying extrapolation methods on which such evidence relied. Given that existing case law establishes that there is nothing inherently problematic about the use of such methods,² it was incumbent on the defendant to bring a timely challenge to the particular manner in which the Commonwealth used them here. The defendant did not raise such concerns prior to trial, nor did he even object to the introduction of the weight testimony at trial. The issue therefore has been waived. Compare Commonwealth v. Fernandez, 458 Mass. 137, 149–150, 934 N.E.2d 810 (2010) (no error in judge declining to hold full hearing, pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 25–26, 641 N.E.2d 1342 (1994), regarding drug field test where defendant did not raise issue until day trial commenced).

To the extent that the defendant now argues that the introduction of the evidence was an error that caused a substantial risk of a miscarriage of justice, the defendant carries the burden of proof. See Commonwealth v. Robinson, 83 Mass.App.Ct. 419, 427, 984 N.E.2d 872 (2013). In my view, the defendant has not made—and cannot make—such a showing based on the current limited record.

Nevertheless, this case well illustrates some of the potential problems with the use of statistical methods.³ I offer the following observations in order to ensure that my supporting affirmance of the judgment is not misunderstood, and to lend some clarity to how the underlying issues properly should be analyzed.⁴

According to the Commonwealth's drug certificate, the total weight of the thirty-six individual chunks of crack cocaine amounted to 14.29 grams (which, when added to the undisputed weight of the larger chunk, yielded a total weight of 31.87 grams). The Commonwealth effectively treats the 14.29 figure as the actual weight of the crack cocaine as measured using statistical methods.⁵ This is inaccurate. Weighing all of the crack cocaine is the only means of actually measuring its total weight. The extrapolation method employed here does not measure the total weight; instead, it serves only to estimate that weight based on the assumption that the few samples the chemist chose are representative. Under elementary precepts of statistics, that estimate would be more or less reliable depending on such factors as the sample size employed, whether the selection of the samples was actually random (or instead infected by selection bias), and the extent of variation among the weight of the sampled population. See generally Witte & Witte, Statistics §§ 12.4–12.5 (9th ed.2010). Statisticians typically express the degree of comfort that such estimates provide through concepts such as “confidence levels.” Id. at § 12.4.

The 14.29–gram figure came in evidence unadorned by any explanation of its statistical reliability in the particular circumstances. The algorithms and underlying assumptions upon which the figure is based were not revealed, and the computer program that the analyst used to generate the estimate was treated as a so-called “black box.”⁶ The absence of any explanation of the validity and the meaning of the Commonwealth's estimate renders it difficult for a lay fact finder to evaluate the import of this evidence. In such circumstances, there is a danger that the fact finder simply will accept the estimated weight without appropriate scrutiny. Cf. Commonwealth v. Ferreira, 460 Mass. 781, 785, 955 N.E.2d 898 (2011) (substantial risk of miscarriage of justice where “[t]he apparent simplicity of the mathematics belies the complexity of the conclusion regarding the probability of an accurate identification, and conceals the assumptions implicit in the conclusion”).

In addition, there are at least two factors here that raise some particular concern about the appropriateness of relying on extrapolation methods. One involves lingering questions about whether the four samples were in fact randomly chosen.⁷ The other involves the degree of variability among the samples.⁸ Because of such concerns, I do not believe that we can say that the Commonwealth's invocation of its statistical methods was proper.⁹

SIKORA, J.