Opinion
14-P-1220
10-20-2015
COMMONWEALTH v. CALVIN HORNE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Calvin Horne, appeals following convictions by a Superior Court jury of two counts of assault and battery on a police officer, resisting arrest, and possession of cocaine with intent to distribute. The defendant was found not guilty of various firearms offenses. On appeal, the defendant argues that the narcotics expert's testimony should not have been admitted as it constituted improper profiling evidence and that the Commonwealth violated its discovery obligations by not detailing certain testimony to which the expert testified.
The admission of the expert testimony was not improper. The expert did not testify that the defendant fit a profile of a certain kind of criminal. Rather, the expert testified about the physical characteristics of a "crack" cocaine dependent person. Therefore the judge did not abuse her broad discretion by admitting the expert testimony. See Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539 (2012).
The defendant has not shown how the Commonwealth failed to comply with the terms of Mass.R.Crim.P. 14(a)(1)(A), as amended, 444 Mass. 1501 (2005). The Commonwealth provided timely notice that it would use expert testimony concerning street-level narcotics activity and that the expert would offer an opinion that the narcotics were packaged for distribution and whether the quantity was consistent with personal use or distribution. The testimony of the expert fell within those parameters, even if it had not been anticipated by defense counsel.
The defense at trial was that the defendant did not possess the cocaine. The expert's testimony did not denigrate that defense. Recognizing that, the defendant argues that had he realized the scope of the expert's testimony, he would have offered an alternative defense: that he could have been a cocaine user and that the cocaine could have been for personal use. The defendant did not seek a continuance or other remedy at trial.
This issue is raised on appeal without the benefit of a motion for new trial, which arguably might have provided a foundation for assessing defense counsel's strategic choices. However, considering the evidence, such as the fact that the cocaine was packaged in twenty-six individual bags, among other indicia of distribution, we can conclude, even on a cold record, that such a defense was not viable. Thus, even if we were to conclude that the Commonwealth violated the requirements of Mass.R.Crim.P. 14(a)(1)(A), the defendant cannot demonstrate prejudice or a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Cypher, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 20, 2015.