COMMONWEALTH v. Luis DEJESUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted Luis DeJesus of possession of fentanyl and cocaine with intent to distribute.2 See G. L. c. 94C, § 32A (a), (d). In this appeal, the defendant raises two issues. First, he contends that the evidence was insufficient to support a finding of distribution. Second, he argues that the Commonwealth was allowed to introduce improper “profile” testimony, creating a substantial risk of a miscarriage of justice. We affirm.
Background. We summarize the evidence using the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), reserving additional facts for our later discussion.
While on narcotics surveillance, two Tewksbury police detectives saw the defendant engage in what appeared to be a hand-to-hand drug transaction with another person. After a brief delay, the two men drove away, committing several traffic violations. The detectives stopped the car.
As they approached the car, the detectives saw the defendant bend down and make fast movements. He then put his hands in the waistband of his pants; he did not yield to the detectives’ verbal requests and physical efforts to make him show his hands. Ultimately, after a struggle, the detectives got the defendant on the ground and handcuffed him. In that process, one of the detectives felt an object inside the defendant's pants near the area where the defendant's hands had been. The detective squeezed the object through the defendant's pants and believed it to be a bag of drugs.
After the defendant stood up, the detective shook the defendant's pantleg and the object fell out. It was a clear plastic, tightly packaged sandwich bag containing nine, knotted, small bags of a brown or light tan powder and three knotted bags of a white substance. Later chemical analysis showed that the bags contained fentanyl, “crack” cocaine, and powder cocaine,3 most of which was mixed with levamisole tetramisole, a common cutting agent. The detective also seized $36 in cash held by the defendant.
After being advised of his Miranda rights, the defendant told the detectives that he estimated that the bag from his pantleg contained about twenty to thirty grams of heroin, forty grams of “crack” cocaine, and twenty grams of powder cocaine. He also admitted that, earlier, he had sold heroin to the other occupant of the car. The defendant then offered to “work for” the detectives and “get [them] kilos.”
On the back seat of the car, the detectives found a bag containing a large amount of a white powdery substance that appeared to be a cutting agent, a digital scale, and an empty sandwich bag. At booking, the defendant identified the white powder as “cut.” The detectives found none of the paraphernalia associated with drug use, such as straws, pipes, lighters, syringes, spoons, or cotton balls. There were two cell phones in the front seat, and the other occupant of the car carried a cell phone.
Discussion. 1. Sufficiency of the evidence. The defendant challenges the sufficiency of the evidence to prove beyond a reasonable doubt that he intended to distribute the drugs, rather than possessing them for personal use. On appeal, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Latimore, 378 Mass. at 677. “A defendant's intent to distribute a controlled substance is a matter of fact, which may not be susceptible of proof by direct evidence” (quotation and citation omitted). Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014). In reviewing the sufficiency of the evidence, we bear in mind that guilt may be established by circumstantial evidence “and that the inferences a jury may draw from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable.’ ” Commonwealth v. Linton, 456 Mass. 534, 544 (2010), S.C., 483 Mass. 227 (2019), quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
The jury could find beyond a reasonable doubt that the defendant possessed the drugs with intent to distribute. His pantleg hid a large bag containing twelve individual bags of cocaine, “crack” cocaine, and fentanyl. The Commonwealth's expert testified that, based on his training and experience, the quantities of fentanyl (twenty-nine grams) and cocaine (eighteen grams), packaged in this way, were consistent with an intent to distribute. The defendant admitted having just sold a bag of heroin to the other occupant of the car. The defendant also offered to procure large amounts of drugs for the detectives, suggesting that he had business relationships with people who sold large amounts of drugs and therefore was a distributor.
The Commonwealth's expert also testified that the other objects found in the car -- cutting agent, scale, and multiple cell phones -- are consistent with an intent to distribute. See Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 842 (2012), quoting Commonwealth v. MacDonald, 459 Mass. 148, 162 (2011) (“A qualified narcotics expert is permitted to offer an opinion based upon a hypothetical ‘grounded in facts in evidence’ ”). He testified that a single user would be unlikely to use both fentanyl and cocaine because they have opposite effects on the user. By contrast, he explained, it is common for distributors to carry more than one product for sale. The expert also testified that fentanyl users do not typically binge on the drug or buy in bulk, testimony that the jury were entitled to credit. See Commonwealth v. Miranda, 458 Mass. 100, 113 (2010), cert. denied, 565 U.S. 1013 (2011) (to the extent that conflicting inferences may be drawn from the evidence, jury to decide which version to credit). Taken as a whole, there was sufficient evidence to support the finding that the defendant possessed the drugs with the intent to distribute.
2. Expert testimony. The defendant contends that certain portions of the expert's testimony constituted impermissible profile evidence.4 “Profile evidence focuses on the characteristics of criminals, while proper expert testimony focuses on the characteristics of crimes.” Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 444 (2020). Profile evidence is inadmissible because it “is an attempt to convince the jury to determine a defendant's guilt by comparing him or her to stereotypes rather than by individualized adjudication.” Id., quoting Commonwealth v. Horne, 476 Mass. 222, 228 (2017). “Similarly, it is inadmissible for an expert to provide so-called negative profile evidence by testifying that the defendant does not match a particular profile.” Mass. G. Evid. § 702 note (2021), and cited case.
The challenged testimony described how, and in what quantities, individuals buy and dealers sell fentanyl. Specifically, the expert (who had not been involved in the investigation) testified that, in his experience, a bulk purchase of fentanyl “may be a gram” as people use “very small amounts,” such as, “at the most, 10 milligrams” at a time because the drug is so potent. The expert opined that fentanyl users do not “usually” have extra money on hand to buy in bulk because people who have these addictions “generally are scraping by” and living “day to day with this addiction” so buying in bulk is “something you just don't see.”
This testimony educated jurors about the different purchasing patterns of individual users as opposed to drug dealers and did not cross the line into impermissible profile evidence. The testimony was “beyond the ken of the jurors and appropriately explanatory.” Commonwealth v. Smith, 92 Mass. App. Ct. 417, 424 (2017), quoting Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 636-637 (2005). The testimony described how drug dealers sell drugs and did not describe physical or character traits stereotypical of drug users in order to show that the defendant did or did not fit that profile. Compare Smith, supra at 420, 423 (testimony that buyers purchase in bulk when seeking larger quantities properly described how drug transactions occur), with Commonwealth v. Johnson, 76 Mass. App. Ct. 80, 85 (2010), S.C., 461 Mass. 1012 (2012) (testimony that drug users spend all their funds on their “need to get high” impermissibly went to expected characteristics of addicts). The challenged testimony provided context for the jury to assess whether the drug quantity, along with the other evidence found on the defendant, was consistent with an intent to distribute the controlled substances. See Barrett, 97 Mass. App. Ct. at 444. There was no error.
2. The defendant later pleaded guilty to the second or subsequent offense portion of the indictment charging possession of cocaine with intent to distribute.
3. The bags held approximately twenty-nine grams of fentanyl, fifteen grams of “crack” cocaine, and three grams of powder cocaine.
4. As there is no error, we assume, without deciding, that the issue was preserved at trial. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 n.3 (2018).
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