Commonwealth v. Sutherland (Lawyers Weekly No. 11-034-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us   17-P-44                                         Appeals Court   COMMONWEALTH  vs.  ADMIRAL SUTHERLAND.     No. 17-P-44.   Hampden.     January 19, 2018. – March 19, 2018.   Present:  Blake, Neyman, & Ditkoff, JJ.     Controlled Substances.  Evidence, Profile, Expert opinion, Authentication, Chain of custody.  Witness, Expert.  Practice, Criminal, Required finding, New trial, Assistance of counsel.       Indictment found and returned in the Superior Court Department on October 13, 2010.   The case was tried before John A Agostini, J., a motion for a new trial was considered by him, and a motion for reconsideration was considered by him.     Barbara J. Sweeney for the defendant. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.     BLAKE, J.  Following a jury trial in the Superior Court, the defendant, Admiral Sutherland, was convicted of possession with intent to distribute heroin.  Thereafter, he pleaded guilty to a charge that it was a subsequent offense.  His motions for a new trial and for reconsideration were denied without a hearing.  On appeal, the defendant claims that the admission of improper so-called “negative profiling” evidence amounted to reversible error, that there was insufficient evidence that the substance was heroin, and that it was an abuse of discretion to deny his motion for new trial.  We affirm. Background.  The jury could have found the following facts.  On September 11, 2010, Massachusetts State police Trooper Luis Rodriguez was conducting a community walk through[1] in Springfield.  Rodriguez noticed a black Nissan being driven by the defendant, who he knew did not have a valid driver’s license.  After the defendant parked the Nissan, Rodriguez arrested him for driving with a suspended license.  While searching the defendant, Rodriguez found a package of cigarettes, which contained three bundles.  Each bundle contained ten bags of what Rodriguez believed to be heroin.  Rodriguez also found a small bag of what he believed to be marijuana in the defendant’s possession. Within earshot of the defendant, Rodriguez discussed with another trooper his intention to apply for a warrant to search the defendant’s home.  Upon their arrival at the State police barracks, the defendant asked to use the telephone to arrange transportation for his daughter.  Rodriguez dialed the telephone number provided by the defendant and handed him the telephone.  The defendant said into the receiver, “They’re coming.  They’re coming.”  Rodriguez immediately ended the telephone call and asked the […]

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