Opinion
18-P-1642
04-22-2020
COMMONWEALTH v. Carlos HUNTER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth indicted the defendant for involuntary manslaughter based on the overdose death of someone (victim) to whom the defendant allegedly sold heroin laced with fentanyl. A Superior Court jury convicted the defendant following a seven-day trial. On appeal, the defendant challenges the sufficiency of the evidence, and he argues that the judge erred in admitting evidence of a subsequent bad act. We affirm.
1. Sufficiency. In reviewing a claim of insufficiency, we view the evidence adduced at trial in the light most favorable to the Commonwealth, drawing all reasonable inferences therefrom, to determine whether the evidence was sufficient to persuade any rational jury to find the essential elements of the crimes charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
In his original and reply brief, the defendant challenged the sufficiency of the evidence only with regard to whether he sold the victim the drugs that led to the overdose. This claim requires little discussion, because the evidence on this point was extremely robust. Cell phone text messages between the defendant and the victim reveal that in the hours before the victim's death the two of them had an extensive "conversation" during which the victim sought to purchase a gram of heroin from the defendant. The victim's inquiries had a desperate tone, and rational jurors could infer that he was in great need of what is commonly known as a "fix." The defendant and the victim agreed to meet at a particular location ("the store next to Monty's") to effect a sale. At 5:31:32 P.M. , the defendant texted that he was "Almost at store," and the victim texted eighteen seconds later, "I'm here." From these well-documented communications, jurors reasonably could infer, beyond a reasonable doubt, that the defendant sold the victim a gram of heroin shortly after 5:31 P.M. This was less than forty-five minutes before 6:15 P.M. , the approximate time the victim's girlfriend found the victim in a locked bathroom lying on the floor "blue" with "stuff coming out of his mouth and his nose." Based on such inferences and the defendant's evident desire to ingest the heroin quickly, the jury readily could infer -- again, beyond a reasonable doubt -- that the drugs that the defendant sold the victim are what caused the victim to overdose and subsequently to die.
After the parties submitted their appellate briefs, the Supreme Judicial Court published its opinion in Commonwealth v. Carrillo, 483 Mass. 269 (2019). In that case, the court clarified what the Commonwealth needed to prove to make out an involuntary manslaughter case in the context of a drug overdose death. Specifically, the court held that "[t]he 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." Id. at 270. In making such a showing, it is not enough for the Commonwealth to rely on "the inherent possibility of substantial harm arising from the use of heroin." Id. at 271. Rather, the Commonwealth must prove that the possibility of substantial harm, "which is present in any distribution of heroin -- had been increased by specific circumstances to create a high degree of likelihood of substantial harm." Id. The court enumerated examples of such circumstances that would suffice, including "evidence that the defendant knew or should have known that the heroin [he sold] was unusually potent or laced with fentanyl." Id.
Where the defendant before us had challenged the sufficiency of the Commonwealth's evidence, albeit with regard to a different element of the crime, we requested supplemental briefing for the parties to address the import of Carrillo with respect to the arguments the defendant had raised. We turn now to that issue.
The Commonwealth argues that Carrillo was satisfied based on evidence that the defendant knew or should have known that what he sold to the victim was "unusually potent." Specifically, the Commonwealth relies on representations that the defendant had made to potential customers close in time to his sale to the victim about the potency of the product he was selling. Before reviewing that evidence, it bears noting that unlike the defendant in Carrillo -- who was a fellow user who agreed to pick up heroin for the victim in that case -- the defendant here was a professional dealer familiar with cutting and packaging heroin. Carrillo, 483 Mass. at 272.
For example, in the days leading up to the victim's overdose, the victim and the defendant were negotiating purchase price. In response to one of the victim's offers, the defendant texted: "I can do those numbers if I throw some cut in it, but I'd rather give everybody jus [sic ] as I get it."
On July 8, 2015 (five days before the victim's overdose), the defendant sent a text message to a customer referred to as "Ee" announcing "Fire!!" According to the Commonwealth's expert, "fire" is a measure of potency, with "fire" or "straight fire" denoting "the hottest stuff [customers] can get a hold of ... [t]he strongest stuff [dealers] have." Two days later, the defendant sent text messages to Ee and others indicating that he had "Straight fire." On July 13, 2015, just minutes before the defendant met with the victim to conduct the sale, the defendant sent Ee another text stating that "I been having rocket fuel the last few days." Then, at 7:15 that night (that is, less than two hours after the sale to the victim), the defendant sent a text message to Ee stating that he had "been consistently blessing [Ee] with straight fire" and that people had "been telling [him] that it's gotten better."
One of those text messages stated that he had "new shit" that was "STR8 [three fire emojis]." In other texts the defendant wrote: "one of my everyday [people] said that I was giving him better stuff but that it was still good but that it was better" and "this got everybody calling twice a day."
Although we consider the question close, we agree with the Commonwealth that -- viewing the evidence in the light most favorable to the Commonwealth -- jurors reasonably could conclude that the defendant knew that the heroin he was selling was especially potent and therefore particularly dangerous, particularly where there was evidence that the defendant was cutting and packaging his own drugs. In coming to this conclusion, we recognize that some degree of "puffery" might be expected from a professional dealer. However, in our view, whether the references to "straight fire" and "rocket fuel" amounted to mere puffery or instead showed knowledge that the heroin in question was particularly potent was for the jury to decide. We therefore conclude that the evidence was sufficient under the test enunciated in Carrillo.
To be clear, we do not rely on there being evidence to support the jury's finding that the defendant knew or should have known that the heroin he was selling was laced with fentanyl.
The defendant has not challenged the adequacy of the jury instructions he received, and we did not request briefing with regard to that issue. We do not address that issue in today's memorandum and order.
2. Subsequent bad act. The defendant separately challenges the admission of evidence of an undercover drug buy that occurred approximately two weeks after the victim overdosed. From the victim's cell phone, the police were able to discern the phone number of the person that had sold the victim the drugs just before his overdose. They called and texted that phone number seeking to arrange a purchase of "brown," a street name for heroin. In the course of those communications, the defendant acknowledged that what he had to sell was "fire." After the undercover sale took place, the police arrested the defendant. The substance he sold was tested and determined to contain fentanyl.
The Commonwealth filed a motion in limine seeking permission to introduce evidence of the undercover buy. The defendant opposed this, and there was a discussion of the issues outside of the jury's presence. That discussion reveals that the judge carefully considered both the probative value of the subsequent bad act evidence and its potential for undue prejudice. It also reveals, however, that the judge applied the wrong test in weighing those factors, with the judge repeatedly having referred to whether any undue prejudice "substantially outweighed" the probative value. See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014) (clarifying that proper test is whether undue prejudice "outweighed" probative value, not whether it "substantially outweighed" it). While objecting to the introduction of the evidence, the defendant did not specifically call the judge's attention to her employing an incorrect legal standard. Nevertheless, we will assume arguendo that the defendant preserved his claim of error and that the prejudicial error test therefore applies.
We agree with the Commonwealth that the basic facts regarding the undercover drug buy had high probative value. Simply put, such evidence demonstrated that it was the defendant who was the person who used the phone in question to sell drugs to the victim. In addition, while the defendant's use of the phone to sell drugs certainly was prejudicial to the defendant, it is not at all apparent how it was "unduly" prejudicial. Based on this, we are confident that had the judge applied the correct legal standard, she would have allowed in evidence the basic facts of the undercover sale.
That said, we cannot say with the same confidence that the judge would have allowed all of the evidence regarding the undercover buy that she did, such as the defendant's acknowledgement that he was selling "fire" two weeks after his sale to the victim, and the fact that what he was selling at that later time contained fentanyl. However, that subset of evidence essentially was duplicative of the other admitted evidence referenced above. In addition, at the defendant's request, the judge gave repeated limiting instructions to the jury, advising them that they "may not take[ ] any of the Defendant's subsequent actions as a substitute for proof that the Defendant committed the crimes charged here nor may [they] consider them as proof that the Defendant has a criminal personality or bad character." We conclude that even if some of the evidence regarding the undercover buy would have been excluded had the judge applied the proper test, the error had, at most, "but very slight effect." Commonwealth v. Rosario, 430 Mass. 505, 514 (1999), quoting Commonwealth v. Gilday, 382 Mass. 166, 178 (1980).
In stating that conclusion, we emphasize that there was no evidence at trial that the death of the victim had been publicized in the intervening two weeks, or that -- at the time the defendant engaged in the undercover buy -- he otherwise had become aware that one of his customers had overdosed.
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Judgment affirmed.