Commonwealth v. Sepheus

468 Mass. 160

9 N.E.3d 800

COMMONWEALTH

v.Carl SEPHEUS.

SJC–11380.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Jan. 7, 2014.

Decided May 19, 2014.

Leslie H. Powers, Lexington, for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

The defendant was convicted at a jury-waived trial of possession of cocaine with intent to distribute. G.L. c. 94C, § 32A ( c ). A divided panel of the Appeals Court affirmed the conviction. See Commonwealth v. Sepheus, 82 Mass.App.Ct. 765, 978 N.E.2d 777 (2012). We granted the defendant's application for further appellate review. On appeal the defendant argues that (1) his motion for a required finding of not guilty should have been allowed as to the element of intent to distribute, (2) his right of confrontation under the Sixth Amendment to the United States Constitution was violated by the admission of hearsay evidence during cross-examination of the Commonwealth's expert witness, and (3) counsel was ineffective for failing to move to strike a portion of the testimony of the Commonwealth's expert witness. We conclude that the evidence was sufficient to warrant conviction of possession of cocaine with intent to distribute. We also conclude that there was no Sixth Amendment violation. However, we conclude that trial counsel was ineffective for failing to move to strike a portion of the testimony of the Commonwealth's expert witness because it was nonresponsive. Had counsel so moved, the testimony should have been stricken and the motion for a required finding of not guilty should have been allowed as to so much of the indictment that alleges intent to distribute. The conviction must be reversed, but the defendant is entitled to a new trial because the Commonwealth may present the testimony of a witness whose statements were allegedly relied on by the Commonwealth's expert.

1. Facts. We summarize the evidence adduced in the Commonwealth's case-in-chief. On September 30, 2009, members of the Springfield police department went to the area of Bristol Street and Wilbraham Road in Springfield at approximately 5 p.m. Their purpose was to arrest the defendant on outstanding warrants, and they had information that he would be at that location. The officers drove around the neighborhood trying to identify the defendant from a photograph they were given.

Officer William Lopes and another officer, who were in an unmarked car, broadened their search to include the area where Alden Street intersects Wilbraham Road. They saw the defendant at a convenience store. The neighborhood was a high crime area where numerous arrests for narcotics offenses and crimes of violence had been made. Officer Lopes used his radio to inform other officers engaged in the search that they had located the defendant.

The defendant was in the company of three to five other males. The group was standing near some gasoline pumps at the store. One person in the group, Dwayne Griffith, walked over to a motor vehicle and made what the officers believed was a narcotics transaction with someone inside the vehicle. He returned to where the others had been standing. The group then entered the store. The time between the point officers first saw the defendant and the point the group entered the store was no more than two minutes. No other narcotics transaction was observed.

Police entered the store and arrested the defendant on the outstanding warrants. Griffith also was arrested. The record is silent as to the offense for which Griffith was arrested. No other person in the group was arrested. The defendant was searched. He had on his person three rocks of “crack” cocaine having a combined weight of approximately 0.4 grams, and $312 in unspecified currency bills. He had no device for smoking crack cocaine.

Detective John Wadlegger, a fifteen-year veteran of the Springfield police department with significant experience in its narcotics bureau, was one of the officers who had been involved in the search for the defendant. He was one of at least seven to ten officers who converged on the store. Over objection and a motion to strike, Detective Wadlegger provided greater detail than Officer Lopes about the reasons police had been dispatched to look for the defendant. He said that they had information that the defendant was in the general area, that he was in possession of a firearm, and that he was selling crack cocaine. That testimony was admitted for the limited purpose of explaining why Wadlegger was in the area.

Detective Wadlegger offered expert testimony that the packaging of the three rocks of crack cocaine seized from the defendant, each of which was inside a twisted-off corner of a plastic sandwich bag, was consistent with a street-level sale of crack cocaine. He estimated that each rock had a street value of approximately twenty dollars. He further testified that in his experience a user of cocaine, crack cocaine, or heroin usually carries some device to ingest the substance.

On cross-examination Wadlegger conceded that he had arrested people for simple possession of cocaine who had three or more rocks of crack cocaine on their person. He also testified that the three rocks of crack cocaine found on the defendant could be consumed by an average user in about one to two hours. The following exchange then took place:

Q.: “And there is nothing about the fact that it's three rocks that suggests to you that he's a dealer.”

A.: “The manner in which it was packaged, our information about Mr. Sepheus, the area, the observations beforehand, and the way it's packaged, and the amount.”

Although the answer was not responsive to the question, trial counsel, who is not appellate counsel, did not move to strike the answer. The exchange continued:

Q.: “Let me ask you this: Did you personally see Mr. Sepheus engage in narcotics transactions on September 30th of 2009?”

A.: “I did not, no.”

Q.: “And so you're relying predominantly on information that was provided by outside sources.”

A.: “Yes. From a reliable informant, correct.”

Q.: “And the informant's name?”

A.: “I don't have that. It wasn't my informant.”

2. Motion for required finding of not guilty. 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” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our consideration “is to be measured upon that which was admitted in evidence without regard to the propriety of the admission.” Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 98, 920 N.E.2d 45 (2010). The focus of the defendant's argument is the element of intent to distribute. He does not dispute that he was in possession of cocaine. A “defendant's intent to distribute a controlled substance ‘is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had ... by inference from all the facts and circumstances developed at the trial.’ ” Commonwealth v. Rivera, 425 Mass. 633, 648, 682 N.E.2d 636 (1997), quoting Commonwealth v. Ellis, 356 Mass. 574, 578–579, 254 N.E.2d 408 (1970). The inferences relied upon need not be “inescapable or necessary,” Commonwealth v. Cullen, 395 Mass. 225, 230, 479 N.E.2d 179 (1985); they need only be “reasonable and possible.” Commonwealth v. Marquetty, 416 Mass. 445, 452, 622 N.E.2d 632 (1993) (citations omitted).

The Commonwealth argues that the manner in which the cocaine was packaged, the amount of money found on the person of the defendant, evidence that he was loitering in a high crime area, the sale of narcotics by Griffith, the absence of a smoking device on the defendant's person, and Detective Wadlegger's opinion testimony, taken together, provide sufficient evidence to warrant a finding of intent to distribute cocaine beyond a reasonable doubt. The defendant acknowledges that the factors cited by the Commonwealth are among those properly considered when determining whether a person had the intent to distribute a controlled substance. See Commonwealth v. Roman, 414 Mass. 642, 645–647, 609 N.E.2d 1217 (1993); Commonwealth v. Montalvo, 76 Mass.App.Ct. 319, 327, 922 N.E.2d 155 (2010). But when those factors are applied to the evidence in this case and the evidence is viewed in the light most favorable to the Commonwealth, he contends, a rational trier of fact could not have determined beyond a reasonable doubt that the defendant intended to distribute the cocaine found on his person. “Each instance of a prosecution for possession with the necessary intent has its own singularities, which makes precedent a somewhat imperfect guide.” Commonwealth v. Sendele, 18 Mass.App.Ct. 755, 758, 470 N.E.2d 811 (1984).

We turn first to the amount of cocaine. A large amount of cocaine alone can support an inference of an intent to distribute. See Commonwealth v. Ridge, 37 Mass.App.Ct. 943, 945, 641 N.E.2d 1059 (1994) (636.8 grams of cocaine alone is sufficient to warrant inference beyond reasonable doubt that defendant intended to distribute cocaine). The amount in this case, 0.4 grams, is well below an amount that, standing alone, has been considered insufficient to warrant an inference of intent to distribute. See, e.g., Commonwealth v. Acosta, 81 Mass.App.Ct. 836, 840–841, 969 N.E.2d 720 (2012) (3.16 grams of cocaine); Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 422–423, 433 N.E.2d 1234 (1982) (6.63 grams of cocaine). Indeed, Detective Wadlegger's testimony on cross-examination suggests that 0.4 grams would not be inconsistent with personal use. We are mindful that although the amount found on the defendant was small, it...