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Massachusetts Appeals Court Upholds Drug Dealing Conviction Despite Admission of Improper “Negative Profiling” Evidence

The Massachusetts Appeals Court today affirmed a drug dealer’s conviction despite the prosecution’s improper admission of so-called negative profiling evidence against him.  The name of the case is Commonwealth v. Sutherland

In September of 2010, a state trooper spotted the defendant driving a car in Springfield.  The trooper knew the defendant’s driver’s license was suspended, and consequently the defendant was arrested.  The trooper searched the defendant and found three 10-packs of heroin hidden in a cigarette box.  The trooper then told another officer he was going to obtain a search warrant to search the defendant’s home.  Back at the barracks, the defendant was permitted to make a telephone call.  When his call was answered, the defendant said, “they’re coming.  They’re coming” into the phone.  He told the trooper he wanted to make sure the contraband was removed from his house before the execution of the search warrant.  The defendant was charged with possession with intent to distribute heroin.

At the defendant’s trial, the arresting trooper testified that the defendant did not look like a drug addict.  According to the trooper, the defendant did not appear gaunt or sick, did not have bloodshot eyes, was not sweating profusely, and did not appear to be unhealthy (all characteristics of drug addicts).  Further, the defendant did not possess items used to ingest heroin (such as needles, spoons, lighters, or cotton balls).  A second officer testified at the trial that heroin addicts often suffer from poor hygiene, weight loss, and bad teeth.  Notwithstanding the testimony from the Commonwealth’s witnesses, the defendant asserted a personal use defense at trial.  His attorney told the jury the defendant was planning to use the heroin found on his person and pointed out the cops did not find cell phones, pagers, or money on the defendant (all of which might be carried by a drug dealer).  The jury didn’t buy the defendant’s argument and he was found guilty of possession with intent to distribute heroin (subsequent offense).

The defendant’s primary argument on appeal was that the Commonwealth had improperly elicited testimony suggesting that the defendant wasn’t a drug addict because he didn’t look like a drug addict.  This evidence, known as “negative profiling,” is inadmissible in Massachusetts.  Just last year, the Supreme Judicial Court reversed a drug dealing conviction after a police officer testified the defendant did not “look” like a crack user.  In this case, the Appeals Court and the prosecution agreed that inadmissible negative profiling evidence had been introduced at the defendant’s trial.  Nevertheless, the Court concluded the error did not pose a substantial risk of a miscarriage of justice and therefore allowed the defendant’s conviction to stand.  The Court acknowledged negative profiling evidence is inherently prejudicial, but ruled the properly-admitted evidence introduced against the defendant established his intent to distribute the heroin he possessed.  The defendant possessed a large quantity of heroin, packaged in a manner consistent with distribution, and once he was arrested, he made a phone call warning someone the cops were on their way.  All of this evidence was sufficient to overcome the improper negative profiling testimony offered by the cops.

This case perfectly illustrates how hard it is to win on appeal in Massachusetts.  Despite an obvious, clear, and important error in the defendant’s trial, he still had his conviction upheld.

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