Opinion
16-P-1203
07-10-2017
COMMONWEALTH v. Joshua DESHIELDS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Joshua Deshields, appeals from his conviction of possession with intent to distribute cocaine, subsequent offense, in violation of G. L. c. 94C, § 32A(d ). The defendant contends that (1) the trial judge erred in admitting expert testimony of a police officer regarding cocaine distribution, and (2) the Commonwealth's evidence was not sufficient to prove the defendant's intent to traffic cocaine. We affirm.
Expert testimony. The defendant contends that the Commonwealth failed to satisfy the last three of the five Daubert-Lanigan foundational requirements for admitting expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ; Commonwealth v. Lanigan, 419 Mass. 15 (1994). The defendant agrees that the Commonwealth satisfied the first two foundational requirements, that "the expert testimony will assist the trier of fact" and "the witness is qualified as an expert in the relevant area of inquiry." Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010). The defendant argues, however, that the Commonwealth failed to prove (1) that the expert's opinion is based on sufficient facts or data; (2) that the expert's process or theory underlying the opinion is reliable, by citing to studies, peer review or publication, or other data; and (3) that the expert's "process or theory [was] applied to the particular facts of the case in a reliable manner." Ibid.
The police officer's testimony was based on his extensive observations and experience in narcotics distribution, not on scientific methodology. He described the methods and means of sale in the local area, not scientific technique or conclusions. See Palandjian v. Foster, 446 Mass. 100, 108 (2006) (expert's testimony regarding standard of medical care in particular geographic area generally based on experience, "not on scientific theory or research"); Commonwealth v. Scesny, 472 Mass. 185, 195 (2015) (expert testimony based on what criminalist would expect to see on clothing of rape victim admissible based on expert's experience). "The use of narcotics investigators to testify in this manner as experts in drug cases has been consistently upheld." Commonwealth v. Johnson, 413 Mass. 598, 604 (1992). See Commonwealth v. Woods, 419 Mass. 366, 374-375 & n.13 (1994) ; Commonwealth v. MacDonald, 459 Mass. 148, 158-159 (2011) ; Commonwealth v. Nelson, 460 Mass. 564, 578 (2011). "The admission of such evidence is largely within the discretion of the judge, whose ruling will be reversed only where the admission constitutes an abuse of discretion or error of law." Johnson, supra. Here, there was no abuse of discretion.
Sufficiency of the evidence. "When reviewing the denial of a motion for a required finding of not guilty, we inquire ‘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.’ " Commonwealth v. Sepheus, 468 Mass. 160, 163 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The defendant contends that the judge erred in denying his motion for a required finding because there was insufficient evidence of intent to distribute. At the time of his arrest, the defendant had in his possession 19.26 grams of cocaine in a single sandwich bag, an amount which the Legislature has determined to support an indictment for trafficking, beyond simple distribution. Compare G. L. c. 94C, § 32E(b )(1), with G. L. c. 94C, § 32A(c ). Lesser quantities have been held sufficient to show an intent to distribute, as opposed to personal use. Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 266 (2010) ("The quantity of cocaine seized from the defendant [nearly fourteen grams] properly formed the basis for opinion testimony by one of the Commonwealth's witnesses that it was more consistent with distribution"); Commonwealth v. Lobo, 82 Mass. App. Ct. 803, 811 (2012) (twenty-one grams of cocaine opined to be consistent with distribution). The police expert testified that the quantity of cocaine seized, combined with its likely value ($1,000) and lack of any of the items needed for personal use, was more consistent with an intent to distribute than to retain for personal use. See Commonwealth v. Wilson, 441 Mass. 390, 401-402 (2004). The "expert opinion that the relevant indicia were more consistent with distribution rather than personal use amply established the requisite intent to distribute." Lobo, supra. See generally Sepheus, supra at 164-166. In addition, the defendant said to the officers, "Please don't do this. Not now, not now. Please don't do this," and told the officers that he was "about to go straight and get a job." The jury could permissibly conclude that the statement evinced consciousness of guilt. See, e.g., Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012). The jury could further infer that it was unlikely that a person who was "about to ... get a job" had the wherewithal to purchase $1,000 worth of drugs for personal use. See Lobo, supra.
At the time of his arrest, the defendant did not have on his person any items associated with personal use, such as cut straws, cut pen shafts, rolled-up bills, hypodermic syringes, caps, tins, or packaging remnants (e.g., corners or knots of the plastic bags).
--------
Judgment affirmed.