Commonwealth v. Carrillo ( 2019 )

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SJC-12617
COMMONWEALTH vs. JESSE CARRILLO.
Hampshire. February 4, 2019. - October 3, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Homicide. Controlled Substances. Wanton or Reckless Conduct.
Practice, Criminal, Request for jury instructions.
Indictments found and returned in the Superior Court
Department on September 28, 2015.
The cases were tried before John A. Agostini, J.
The Supreme Judicial Court granted an application for
direct appellate review.
J.W. Carney, Jr. (Reyna Ramirez also present) for the
defendant.
Cynthia M. Von Flatern, Assistant District Attorney (Jeremy
C. Bucci, Assistant District Attorney, also present) for the
Commonwealth.
Leo Beletsky, of New York, & Lisa Newman-Polk, for
Committee for Public Counsel Services & others, amici curiae,
submitted a brief.
Maura Healey, Attorney General, & Randall E. Ravitz,
Assistant Attorney General, for the Attorney General, amicus
curiae, submitted a brief.
2
GANTS, C.J. In October 2013, Eric Sinacori, a twenty year
old junior at the University of Massachusetts in Amherst, died
from a heroin overdose. His death was yet another tragic loss
of a promising young adult whose life was cut short by the
proliferation of heroin and other opioids that have ravaged
communities across the Commonwealth. The defendant, a graduate
student at the university, had provided him with the heroin that
caused his death. Following a jury trial, the defendant was
convicted of involuntary manslaughter and distribution of
heroin. We granted the defendant's application for direct
appellate review.
On appeal, the defendant raises two arguments. First, he
contends that the Commonwealth presented insufficient evidence
to support the involuntary manslaughter conviction. Second, he
claims that he is entitled to a new trial on the indictment
charging distribution of heroin because the judge erred in
denying his request to instruct the jury on the lesser included
offense of possession of heroin for personal use.
To find a defendant guilty of involuntary manslaughter
caused by wanton or reckless conduct, our case law requires
proof beyond a reasonable doubt that the defendant engaged in
conduct that creates "a high degree of likelihood that
substantial harm will result to another." Commonwealth v.
Welansky, 316 Mass. 383, 399 (1944). Selling or giving heroin
3
to another person may be wanton or reckless conduct where, under
the circumstances, there is a high degree of likelihood that the
person will suffer substantial harm, such as an overdose or
death, from the use of those drugs. And in many cases the
circumstances surrounding the distribution of heroin will permit
a rational finder of fact to find beyond a reasonable doubt that
the transfer of heroin created a high degree of likelihood of
substantial harm, such as an overdose or death. But not every
case will present circumstances that make such conduct "wanton
or reckless." This is one such case.
We conclude that the mere possibility that the transfer of
heroin will result in an overdose does not suffice to meet the
standard of wanton or reckless conduct under our law. The
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.
Here, no evidence was presented during the Commonwealth's
case-in-chief that would permit a reasonable jury to conclude
that the inherent possibility of substantial harm arising from
the use of heroin -- which is present in any distribution of
heroin -- had been increased by specific circumstances to create
a high degree of likelihood of substantial harm. For instance,
4
the Commonwealth did not present evidence that the defendant
knew or should have known that the heroin was unusually potent
or laced with fentanyl; evidence that Sinacori was particularly
vulnerable to an overdose because of his age, use of other
drugs, or prior overdoses; or evidence that the defendant knew
or should have known that Sinacori had overdosed but failed to
seek help. In the absence of any such evidence, we conclude
that the Commonwealth did not meet its burden of producing
sufficient evidence for a reasonable jury to conclude that the
defendant's conduct in this case created a high degree of
likelihood that Sinacori would suffer substantial harm, such as
an overdose or death, from his use of the heroin. The
defendant's conviction of involuntary manslaughter must
therefore be vacated, and a required finding of not guilty
entered.
We affirm the defendant's conviction of distribution of
heroin. We conclude that, in the circumstances of this case,
the judge did not err in denying the defendant's request for a
lesser included jury instruction on simple possession, even
though Sinacori asked the defendant to purchase heroin for him
and the defendant did not profit from the sale. Where the
defendant traveled alone to New York to obtain the heroin that
he later sold to Sinacori, and where Sinacori played no active
role in the purchase of those drugs, no reasonable jury could
5
conclude that the defendant was anything other than a "link in
the chain" of distribution of the heroin, rather than merely a
joint possessor of the heroin for personal use.1
Discussion. 1. Involuntary manslaughter. We consider
first whether the evidence was sufficient to support a finding
of involuntary manslaughter beyond a reasonable doubt by a
reasonable trier of fact. Because the defendant moved for a
required finding of not guilty at the close of the
Commonwealth's case, we review the sufficiency of only the
evidence presented at the time the Commonwealth rested after its
case-in-chief, viewing that evidence in the light most favorable
to the Commonwealth. Commonwealth v. Berry, 431 Mass. 326, 330,
332 (2000) (sufficiency of evidence determined "by an
examination of the evidence at the close of the Commonwealth's
case-in-chief"). We reserve discussion of the evidence offered
by the defendant after the Commonwealth rested for our analysis
of his challenge to the judge's denial of his request for a jury
instruction on the lesser included offense of possession of
heroin for personal use.
1 We acknowledge the amicus briefs submitted by the Attorney
General and by the Committee for Public Counsel Services, The
Health in Justice Action Lab at Northeastern University School
of Law, and Massachusetts Association of Criminal Defense
Lawyers.
6
a. The evidence viewed in the light most favorable to the
Commonwealth. In the fall of 2013, the defendant and Sinacori
lived in the same neighborhood in Amherst. Both were heroin
users. Based on the text messages presented in evidence, a
reasonable fact finder could have inferred that the defendant
met Sinacori shortly before September 30, 2013, and Sinacori
learned that the defendant periodically traveled to purchase
heroin. In a text message sent on September 30, Sinacori asked
the defendant when he was making "the next run." Sinacori
indicated he would be willing to purchase "another bun" of
heroin2 when the defendant made that "run." The defendant said
he could provide two "buns" for $180, but if Sinacori wanted
only one "bun," it would cost one hundred dollars. The
defendant also sent a text message to Sinacori that he would
have to pay in advance.
They arranged to meet on October 1, when the defendant left
Massachusetts to travel to the Bronx borough of New York to pick
up the "buns." During the defendant's trip, the defendant told
Sinacori that he was also going to a drug store to purchase a
2 The jury could infer through the totality of the evidence
presented by the Commonwealth in its case-in-chief that a "bun"
referred to a ten-bag "bundle" of heroin that cost one hundred
dollars. This was later confirmed by the defendant in his
testimony.
7
"new rig";3 Sinacori sent a text message that he would like to
split a "10 pack" with the defendant, unless the defendant
needed them all. The defendant, upon his return, invited
Sinacori to his apartment to "[d]o some."
Sinacori went to the defendant's apartment that evening and
used heroin with the defendant. Later that night, Sinacori
asked the defendant in a text message if he "could get another
bun tomorrow." The defendant replied that if he were to "let go
one from [his] headstash," he would charge "mad dollar" for it.
Sinacori agreed to wait for the defendant's next trip; the
defendant replied by text that he would be leaving at 5 P.M. on
October 3. Sinacori gave the defendant seventy dollars before
the defendant left on his trip, and asked the defendant to
"spot" him thirty dollars. The defendant drove to the Bronx to
buy heroin. At 8:44 P.M. that evening, the defendant sent
Sinacori a text message stating, "Candy acquired," and added
that he was on his way back. Later, the defendant sent a text
message that he was delayed because of traffic in Hartford,
Connecticut. Sinacori replied that his "veins are crying" and
that he was hurting. At 11:40 P.M., the defendant sent a text
message that he knew that Sinacori was "hurtin but u will very
3 Although the Commonwealth did not explain or introduce
evidence as to what a "rig" is in this context, it refers to
"slang for a hypodermic needle and syringe used to inject
heroin." State v. Ferrell, 2017-Ohio-9341 ¶16 (Ohio Ct. App.).
8
soon be in the loving comforting arms of Miss H." The defendant
said he would drive to Sinacori's home so that Sinacori would
not "have to go far in hurt mode." As he approached, the
defendant asked Sinacori whether he had the balance of thirty
dollars; Sinacori sent a text message that he only had twenty
dollars. They agreed that either the defendant would give him
"nine," inferably referring to nine out of ten bags of heroin,
or Sinacori would get the remaining ten dollars the next day.
The defendant arrived at Sinacori's home just before midnight,
and at 12:20 A.M sent a text message to Sinacori to ask, "Ehh???
;)" and "How much tropicana did u drink?," which inferably was
asking him how much heroin he had used.4 Sinacori did not reply
to either text.
On the afternoon of October 4, Sinacori's father entered
his son's apartment and found his son dead, with a used needle
nearby. The police found three waxed bags with a Tropicana
stamp that had been torn open, and six more bags that had not
been opened. The analyst at the drug laboratory found that the
bags contained heroin with a purity range of "roughly from
[fifty-eight] to [sixty-nine] percent." The autopsy conducted
by the medical examiner revealed that the cause of death was
"acute heroin intoxication." A toxicology specialist testified
4 The brand of heroin purchased by the defendant bore the
mark "Tropicana" on its packaging.
9
that the opiate found in Sinacori's blood was heroin and that no
fentanyl was present in the blood.
From this evidence, a reasonable jury could have inferred
that the defendant and Sinacori on October 1 together used the
heroin the defendant had procured earlier that day from the
Bronx. Two days later, the defendant traveled again to the
Bronx to obtain a "bun" of heroin for Sinacori, and more heroin
for himself. When the defendant was traveling through Hartford
on his way back to Amherst, Sinacori was suffering from
withdrawal pain. The defendant delivered nine bags of heroin to
Sinacori that night, omitting one bag because Sinacori had
apparently not paid the remaining ten dollars he owed to the
defendant. Sinacori used three of those bags and this time
overdosed, causing his death.
The Commonwealth contends that this evidence reveals at
least two circumstances showing that the defendant knew or
should have known that his conduct was wanton or reckless.
First, there was evidence from the text messages that Sinacori
was suffering from withdrawal symptoms ("my veins are crying")
before he used the heroin, and the Commonwealth argues that the
defendant should have known that an addicted person in
withdrawal is more likely to overdose. But there was no expert
evidence -- or even lay testimony -- that a heroin user is more
likely to overdose when he or she is suffering from withdrawal.
10
We cannot reasonably take judicial notice that this is true, or
that the defendant or a reasonable person would know it to be
true.
Second, the Commonwealth claims that when his text to
Sinacori at 12:20 A.M. asking, "How much tropicana did u drink?"
went unanswered, the defendant should have recognized that
Sinacori had overdosed and immediately sought help. We decline
to give so much inferential weight to the failure of a person to
respond to such a text message.
In sum, there was no evidence that the defendant knew or
should have known that the transfer of heroin to Sinacori
created a high degree of likelihood of substantial harm, such as
an overdose or death. As discussed in greater detail infra,
where courts in drug-induced homicide cases have found the
evidence sufficient to support a conviction of involuntary
manslaughter, there generally has been evidence of specific
circumstances that a reasonable person would understand to
heighten the risk of harm, such as where the drugs were
unusually potent, the user was particularly vulnerable to an
overdose, or the defendant failed to seek help after the user
became unconscious or unresponsive. Of course, this list is not
exhaustive of all the circumstances that may increase the risk
of serious harm.
11
In this case, however, the Commonwealth proved little more
than the fact that heroin was transferred from one person to
another. Here, the heroin in question was not laced or tainted
with fentanyl; the defendant purchased the same brand of heroin
for his own personal use; the defendant observed Sinacori use
the same brand of heroin two days earlier without apparent
problem; the defendant did not personally inject Sinacori with
heroin or any other drugs; there is no evidence that the
defendant had any knowledge of any other drug or alcohol use by
Sinacori that could have increased the likelihood of an
overdose; and the defendant did not observe Sinacori overdose
and fail to call for help. Nor was there any expert testimony
regarding the relative potency of heroin of the purity that the
drug laboratory analyst found, or regarding the likelihood that
heroin of that purity would result in an overdose.
The issue we confront, then, is whether evidence of heroin
distribution alone is sufficient to support a conviction of
involuntary manslaughter where the heroin caused a tragic death.
b. Wanton or reckless conduct in the context of a transfer
of heroin. "Involuntary manslaughter is 'an unlawful homicide
unintentionally caused by an act which constitutes such a
disregard of probable harmful consequences to another as to
amount to wanton or reckless conduct.'" Commonwealth v. Life
Care Ctrs. of Am., Inc., 456 Mass. 826, 832 (2010), quoting
12
Commonwealth v. Gonzalez, 443 Mass. 799, 808 (2005). Our model
homicide instructions, adopting language from Commonwealth v.
Welansky, 316 Mass. at 399, provide that "[w]anton or reckless
conduct is conduct that creates a high degree of likelihood that
substantial harm will result to another." Model Jury
Instructions on Homicide 88 (2018) (involuntary manslaughter).
See Welansky, supra ("The essence of wanton or reckless conduct
is intentional conduct, by way either of commission or of
omission where there is a duty to act, which conduct involves a
high degree of likelihood that substantial harm will result to
another"). In determining what actions are wanton or reckless,
we focus on "the conduct that caused the result, . . . not the
resultant harm" (emphasis added). Commonwealth v. Hardy, 482
Mass. 416, 424 (2019).
The phrase -- "a high degree of likelihood that substantial
harm will result to another" -- separates wanton or reckless
conduct from the unreasonable risk of harm that constitutes
negligence or gross negligence. As this court declared in
Welansky, 316 Mass. at 399: "The words 'wanton' and 'reckless'
are thus not merely rhetorical or vituperative expressions used
instead of negligent or grossly negligent. They express a
difference in the degree of risk and in the voluntary taking of
risk so marked, as compared with negligence, as to amount
substantially and in the eyes of the law to a difference in
13
kind." The risk of harm must be more than a possible or
unreasonable risk; it must reach a "high degree of likelihood."
See id. See also id. at 397 ("Usually wanton or reckless
conduct consists of an affirmative act, like driving an
automobile or discharging a firearm, in disregard of probable
harmful consequences to another" [emphasis added]). And the
harm to another person must be substantial, involving death or
grave bodily injury. See Sandler v. Commonwealth, 419 Mass.
334, 336 (1995) ("The risk of death or grave bodily injury must
be known or reasonably apparent, and the harm must be a probable
consequence of the defendant's election to run that risk").
Where the Commonwealth alleges that a defendant committed
involuntary manslaughter by selling or giving heroin to another
person, who died from its use, the distribution of that heroin
must be proven to be wanton or reckless conduct, which means
that the distribution must have created a high degree of
likelihood of death or grave bodily injury. The most common
risk of death or grave bodily injury from the distribution of
heroin arises from the risk of an overdose. See National
Institutes of Health: National Institute on Drug Abuse, Drug
Facts: Heroin (revised June, 2019), https://www.drugabuse
.gov/publications/drugfacts/heroin [https://perma.cc/G43Q-6R6W]
(noting that heroin overdose results in "breathing [that] slows
or stops, . . . decreas[ing] the amount of oxygen that reaches
14
the brain, a condition called hypoxia[,] [which] can have short-
and long-term effects and effects on the nervous system,
including coma and permanent brain damage"). We recognize that
every use of heroin presents the possibility of an overdose
causing death or grave bodily injury, but "a high degree of
likelihood" of death or grave bodily injury requires more than
the mere possibility of an overdose; it requires proof of a high
degree of likelihood of an overdose. See Lofthouse v.
Commonwealth, 13 S.W.3d 236, 241 (Ky. 2000) (conviction of
reckless homicide based on transfer of illegal drugs "required
proof beyond a reasonable doubt that there was a substantial and
unjustifiable risk that [the victim] would die if he ingested
the cocaine and heroin furnished to him by [the defendant]");
State v. Shell, 501 S.W.3d 22, 32-33 (Mo. Ct. App. 2016) (to
prove involuntary manslaughter based on transfer of heroin, "it
was incumbent upon the State to prove, beyond a reasonable
doubt, that [d]efendant was aware of the risk that [d]ecedent's
death was probable as a result of injecting heroin").5
5 We recognize that, in some circumstances, such as where
the health of the user is already fragile, or the user employs
contaminated needles, the use of heroin might pose a risk of
death or grave bodily injury even without an overdose. We need
not address that possibility here, where there was no evidence
that Eric Sinacori's health was impaired or that any equipment
he used to inject heroin was contaminated.
Similarly, we also recognize that there may be
circumstances where a defendant provides heroin to a user who
15
Our model jury instructions also provide:
"If the defendant realized the grave risk created by his
conduct, his subsequent act amounts to wanton or reckless
conduct whether or not a reasonable person would have
realized the risk of grave danger. Even if the defendant
himself did not realize the grave risk of harm to another,
the act would constitute wanton or reckless conduct if a
reasonable person, knowing what the defendant knew, would
have realized the act posed a risk of grave danger to
another."
Model Jury Instructions on Homicide, supra at 89-90. Therefore,
to prove a defendant guilty of involuntary manslaughter in these
circumstances, the Commonwealth must prove not only that the
defendant's conduct created a high degree of likelihood that the
user would overdose from the heroin, but also that the defendant
knew of this high degree of likelihood or should have known of
it, given his own personal knowledge and experience.
c. Massachusetts case law. "Perhaps it is a testament to
prosecutorial discretion, trial judges properly dismissing cases
based on insufficient evidence, and juries conscientiously
performing their function that we have had few occasions to
overdoses in the presence of the defendant, and the defendant
fails to seek medical attention or other help to the overdose
victim, who dies. In these circumstances, even if there was not
a high degree of likelihood of an overdose, the failure of the
person who provided the heroin that caused the overdose to
exercise reasonable care to prevent the overdose victim from
dying may be sufficient to support a conviction of voluntary
manslaughter. See Commonwealth v. Levesque, 436 Mass. 443, 450
(2002) ("Where a defendant's failure to exercise reasonable care
to prevent the risk he created is reckless and results in death,
the defendant can be convicted of involuntary manslaughter").
16
review convictions on the basis that the evidence was
insufficient to prove 'wanton or reckless' conduct." Hardy, 482
Mass. at 423. We have decided three cases where a defendant was
prosecuted for involuntary manslaughter after providing heroin
to a person who died from an overdose. Two were full opinions:
Commonwealth v. Catalina, 407 Mass. 779 (1990), and Commonwealth
v. Auditore, 407 Mass. 793 (1990). The other, Commonwealth v.
Perry, 416 Mass. 1003 (1993), was a short rescript opinion in
which we adopted the analysis of the Appeals Court from the same
case.
In each of these cases, the issue before the court was
whether the evidence before the grand jury was sufficient to
support the probable cause needed for an indictment, not whether
the evidence was sufficient to support a conviction of
involuntary manslaughter. See Auditore, 407 Mass. at 796
("Emphasizing that we are dealing only with the standard of
probable cause"); Catalina, 407 Mass. at 789-790 ("The defendant
has not yet been tried on this charge, so we are not concerned
with whether sufficient evidence exists to warrant a finding of
his guilt beyond a reasonable doubt. Rather, we consider only
whether the information before the grand jury was adequate to
establish his identity and probable cause to arrest him for the
crime charged"). See also Perry, 416 Mass. at 1003-1004. This
is the first case of involuntary manslaughter based on the
17
transfer of drugs where we address the sufficiency of the
evidence to support a finding of proof beyond a reasonable
doubt, rather than probable cause.
The standard for probable cause "is a relatively low
threshold, requiring only sufficiently trustworthy information
to instill in a reasonable person the requisite belief of
criminality" (quotations and citation omitted). Paquette v.
Commonwealth, 440 Mass. 121, 132 (2003), cert. denied, 540 U.S.
1150 (2004). Yet in finding probable cause in Catalina, 407
Mass. at 790 n.12, we noted that "there was evidence that the
defendant knew he was distributing a highly potent brand of
heroin, that [the deceased] had a low tolerance for the drug and
had overdosed in the past, that she could not handle a whole bag
of this type of heroin, and that she needed to be warned not to
'do a whole one.'" In finding probable cause in Auditore, 407
Mass. at 796, we noted that the brand of heroin sold by the
defendant "was twice as strong as the average dose," that he had
a supply of this brand of heroin in his apartment in Gloucester,
and that this brand of heroin "had caused at least two deaths by
overdose in the Gloucester area." And in finding probable cause
in the rescript opinion in Perry, 416 Mass. at 1004, we simply
adopted the reasons advanced by the Appeals Court. In the
Appeals Court opinion, it was noted that there was evidence that
the defendant knew that the heroin she had obtained for the
18
deceased was unusually dangerous; the defendant, after she
learned that the deceased had collapsed after injecting himself,
commented, "That's what happens when you get good stuff."
Commonwealth v. Perry, 34 Mass. App. Ct. 127, 130 (1993).
Consequently, even though the court in these cases was
determining only whether there was probable cause to support an
indictment for involuntary manslaughter, the court noted
circumstances in each of those cases that are not present here -
- facts that a reasonable person would understand to increase
the risk of substantial harm.
Two reported decisions by the Appeals Court have upheld
convictions of involuntary manslaughter where the defendant
provided illegal drugs to another person who overdosed and died.
In both cases, there was specific evidence that the defendant
knew or should have known that his or her conduct created a high
degree of likelihood of substantial harm to another.
In Commonwealth v. Osachuk, 43 Mass. App. Ct. 71, 72
(1997), the Appeals Court affirmed an involuntary manslaughter
conviction where the defendant, having earlier provided the
victim with methadone and having loaned her money to purchase
cocaine, provided the victim with heroin, knowing that she
intended to mix it with cocaine to produce a "speed ball," and
then after she became unconscious, personally injected her with
more cocaine to try to wake her up. "[E]xperts for both the
19
Commonwealth and the defense agreed that the results of blood
tests were consistent with death caused by cocaine, heroin and
methadone intoxication." Id. at 73. Perhaps because of the
weight of the evidence, the defendant on appeal challenged only
the sufficiency of the evidence as to causation, and did not
challenge whether the defendant's conduct was wanton or
reckless.6 Id. at 71.
In Commonwealth v. Vaughn, 43 Mass. App. Ct. 818, 819-820
(1997), the defendant injected the victim with heroin and, after
she passed out and became unresponsive, left her alone "for some
time," returned and slapped her in an effort to rouse her, and
when that failed, he "went back downstairs and watched
television." See id. at 825-826 (jury could infer defendant's
subjective awareness of risks of injecting heroin from his
conduct after victim passed out).
Another case, Commonwealth v. Walker, 442 Mass. 185 (2004),
merits attention, although it did not concern the transfer of
heroin. In Walker, the defendant repeatedly mixed a high dose
of sleeping medication -- which contained a benzodiazepine
called temazepam -- into drinks that he prepared for various
women. Id. at 187-189 & n.3. Eventually, one woman died from a
combination of temazepam and alcohol. Id. at 189. We affirmed
6 The defendant here does not challenge the causal link
between his conduct and Sinacori's death.
20
the jury's conviction of involuntary manslaughter. Id. at 204.
In so doing, we identified the specific evidence that proved
that the defendant knew or should have known that his conduct
created a high degree of likelihood that substantial harm would
result. We noted first that the defendant used a particularly
high dose, and that the Commonwealth introduced testimony from
an expert who testified as to the toxicity of the dose the
defendant administered. Id. at 189, 192. Importantly, we also
noted that the defendant had engaged in such conduct on previous
occasions and "watched [the] injurious effects take hold," and
that he thus should have understood that his actions would
likely "be toxic, if not lethal." Id. at 193.
The case now before us is unique, not only because it is
the first time we have addressed the sufficiency of the evidence
for an involuntary manslaughter conviction based on the
distribution of heroin, but also because it is the first time we
have confronted such a case where there was no evidence, for
example, of the unusual potency of the heroin, of the
vulnerability of the user to an overdose, or of the defendant's
failure to seek help when the user appeared to overdose.
The Commonwealth contends that we have already decided that
the distribution of heroin of unknown strength alone, without
more, is sufficient to support a conviction of involuntary
21
manslaughter. In making this argument, the Commonwealth relies
upon our statement in Perry:
"In Commonwealth v. Catalina, 407 Mass. 779, 790-791
(1990), . . . we held that the distributing of a
particularly potent form of heroin to one who injected it
and died as a result constituted evidence sufficient for an
indictment by a grand jury of manslaughter. See [id.] at
790 n.12. However, we did not limit the effect of this
rule to that specific form of heroin because all heroin of
unknown strength is inherently dangerous and carries a
'high probability that death will occur.' Id. at 791,
quoting with approval People v. Cruciani, 70 Misc. 2d 528,
536 (N.Y. [Suffolk Co. Ct.] 1972)."
Perry, 416 Mass. at 1004.
The last sentence of this statement is dictum; in Catalina,
as earlier noted, we identified considerable evidence that the
defendant should have recognized would result in substantial
harm, and therefore did not need to address whether the
indictment could survive without any such evidence. But it is
admittedly powerful dictum because, if it is true that the use
of "all heroin of unknown strength . . . carries 'a high
probability that death will occur,'" then the distribution of
heroin alone would suffice to support a finding of wanton or
reckless conduct because it would always create "a high degree
of likelihood that substantial harm will result to another."
And we note that at least one other State court has relied on
this language from our Catalina and Perry opinions for the
proposition that, in Massachusetts, the distribution of heroin
alone is sufficient to support a guilty finding of involuntary
22
manslaughter where the heroin causes the user's death. See
State v. Miller, 874 N.W.2d 659, 664 (Iowa App. 2015). We now
reject that proposition.
The Commonwealth put forth no evidence at trial that the
use of heroin generally carries a "high probability" of death or
even overdose. In the absence of such evidence, if the
assertion that "all heroin of unknown strength . . . carries 'a
high probability that death will occur'" is to be used to
support the sufficiency of evidence at trial, a reasonable
person must know this to be true. But we cannot infer that a
reasonable person would know this to be true unless it indeed is
true. Neither this court in Perry or Catalina, nor the New York
trial court in Cruciani, where the statement originated,
provided any empirical factual support for that statement.7
7 In the New York case cited by the court, People v.
Cruciani, 70 Misc. 2d 528, 529, 537 (N.Y. Suffolk Co. Ct. 1972),
the trial judge denied the defendant's motion to dismiss the
counts in the indictment charging reckless manslaughter in the
second degree and criminally negligent homicide. It is
noteworthy that, after the defendant was convicted of reckless
manslaughter, the Court of Appeals of New York, in affirming the
conviction, rejected the defendant's claim that the evidence of
recklessness was insufficient by noting that "the proof
show[ed], among other things, that defendant Cruciani injected
[the victim] with heroin (1) when, in his own words, she was
already 'completely bombed out on downs' (depressants like
morphine into which heroin is rapidly converted by the body's
metabolic processes), (2) at a time when she had lost the
capacity to 'walk or talk straight', and (3) despite his
admission of awareness that there was a substantial possibility
that a further injection in her then drug-saturated state would
cause her to 'fall out' (in modern vernacular of drug users,
23
Heroin is undoubtedly an inherently dangerous drug, and
heroin overdoses have undoubtedly caused a tragic number of
deaths. See Massachusetts Department of Public Health, Data
Brief: Opioid-Related Overdose Deaths among Massachusetts
Residents, at 2 (Feb. 2019), https://www.mass.gov/files
/documents/2019/02/12/Opioid-related-Overdose-Deaths-among-MA-
Residents-February-2019.pdf [https://perma.cc/2Z2Z-RN2W] (over
1,000 Massachusetts residents died from opioid-related overdoses
each year between 2014 and 2018). But we can find no evidence -
- nor has the Commonwealth pointed us to any -- proving that any
use of heroin of unknown strength carries a "high probability"
of substantial harm, such as an overdose or death. According to
recent data gathered by the Substance Abuse and Mental Health
Services Administration, in 2017 approximately 652,000 Americans
suffered from "heroin use disorder," which is defined as
"clinically significant impairment caused by the recurrent use
of heroin." Substance Abuse and Mental Health Services
Administration, Key Substance Use and Mental Health Indicators
in the United States: Results from the 2017 National Survey on
Drug Use and Health 33 (2017), https://www.samhsa.gov
/data/sites/default/files/cbhsq-reports/NSDUHFFR2017
/NSDUHFFR2017.pdf [https://perma.cc/V92Q-2DJ8]. And 886,000
that she would die)." People v. Cruciani, 36 N.Y.2d 304, 305
(1975).
24
Americans used heroin that year. Id. at 19. Among those
individuals, the Centers for Disease Control and Prevention
reported 15,482 drug overdose deaths involving heroin. National
Institutes of Health: National Institute on Drug Abuse,
Overdose Death Rates (revised Jan. 2019), https://www.drugabuse
.gov/related-topics/trends-statistics/overdose-death-rates
[https://perma.cc/2ZC8-X7NN]. This is, of course, a national
tragedy. But as devastating as the heroin epidemic has been, we
cannot rationally conclude from this data that every single
instance of heroin distribution carries a "high probability"
that the user will die.
The rate of overdose, of course, is higher than the rate of
death. Reliable data regarding the incidence of overdoses (or
the ratio of overdoses to deaths) is more difficult to obtain
than data regarding the incidence of death, because so many
overdoses are unreported. The Centers for Disease Control and
Prevention has estimated that in 2015, 81,326 emergency
department visits occurred for "heroin-related poisonings" in
the United States, a year in which 12,989 individuals were
reported to have died from drug overdoses involving heroin. See
Centers for Disease Control and Prevention, 2018 Annual
Surveillance Report of Drug-Related Risks and Outcomes 19,
https://www.cdc.gov/drugoverdose/pdf/pubs/2018-cdc-drug-
surveillance-report.pdf [https://perma.cc/23PU-QN3B]; Rudd,
25
Seth, David, & Scholl, Increases in Drug and Opioid-Involved
Deaths -- United States, 2010-2015, 65 MMRW 1445, 1450 (Dec. 30,
2016). But even if we recognize that the rate of overdose
substantially exceeds the rate of death, we still could not
reasonably assume that all heroin of unknown strength carries a
high probability that overdose will occur, or that a reasonable
person would know that to be true. It is fair to assume that a
reasonable person would know that the use of heroin of unknown
strength is inherently dangerous and carries a significant
possibility of overdose or death. But to suggest that a
reasonable person would know that any use of heroin carries a
high probability or a substantial likelihood of overdose or
death is a bridge too far.8
8 It is worthy of note that the dramatic increase in the
overdose death rate over the past decade is mainly attributable
to the widespread introduction of synthetic fentanyl. See
National Institutes of Health: National Institute on Drug
Abuse, Overdose Death Rates (revised Jan. 2019), https:
//www.drugabuse.gov/related-topics/trends-statistics/overdose-
death-rates [https://perma.cc/2ZC8-X7NN]. According to the
Massachusetts Department of Public Health, "[a]mong the 1,902
[Massachusetts] opioid-related overdose deaths in 2018 where a
toxicology screen was also available, 1,695 of them (89%) had a
positive screen result for fentanyl. In the fourth quarter of
2018, heroin or likely heroin was present in approximately 32%
of opioid-related overdose deaths that had a toxicology screen."
Massachusetts Department of Public Health, Data Brief: Opioid-
Related Overdose Deaths among Massachusetts Residents 2(May
2019), https://www.mass.gov/files/documents/2019/05/15/Opioid-
related-Overdose-Deaths-among-MA-Residents-May-2019.pdf
[https://perma.cc/2BSH-YY8T]. As discussed supra, the
toxicology results of Sinacori's blood revealed heroin, not
fentanyl.
26
The creation of a per se rule -- that the transfer of
heroin to a person addicted to heroin, without more, is
sufficient to support a finding of the required element of
wanton or reckless conduct -- is inconsistent, both
jurisprudentially and empirically, with the requirement that
conduct, to be found wanton or reckless, must create a high
degree of likelihood that substantial harm will result to
another. For all practical purposes, an indictment for
involuntary manslaughter premised on the transfer of heroin
revises the definition of wanton or reckless. We decline to
carve out a heroin exception to our law of involuntary
manslaughter. Nor need we do so where the distribution of
heroin alone carries severe penalties and where, when specific
evidence of circumstances increasing the risk of harm is proven,
a distribution of heroin resulting in death may be punished as
involuntary manslaughter.
d. Approach of other State courts. Although the
definition of "wanton or reckless" as applied to involuntary
manslaughter is not uniform among the fifty States, we think it
worthy of note that numerous State appellate courts that have
recently considered the issue have declined to adopt a per se
rule that the distribution of heroin alone, without more,
suffices to support a verdict of involuntary manslaughter.
27
The Supreme Court of Kentucky in Lofthouse, 13 S.W.3d at
241, in vacating a conviction of reckless homicide, rejected
both the defendant's "proposition that furnishing controlled
substances to one who subsequently dies from their ingestion can
never support a conviction of criminal homicide and the
Commonwealth's proposition that such will always support a
conviction" (emphasis in original). Id. The court highlighted
the importance of additional evidence:
"[G]uilt of criminal homicide, like any other offense,
depends upon proof. . . . For example, in the Tennessee
case of State v. Randolph, [676 S.W.2d 943 (Tenn. 1984)],
there was evidence that another of one defendant's
customers had died the same way two weeks earlier, and that
another defendant knew that the heroin sold to the victim
was 'uncut' and dangerous because it had not been diluted.
And in the New York case of People v. Cruciani, [36 N.Y.2d
304 (1975)], there was evidence that the defendant injected
the victim with heroin after she was already 'bombed out'
on depressants and that the defendant was aware of the
substantial possibility that the injection would cause the
victim's death."
Lofthouse, supra.
The Missouri Court of Appeals in Shell, 501 S.W.3d at 32,
vacated a defendant's conviction of involuntary manslaughter
where the "[d]efendant's [only] affirmative act was delivering
heroin to" the victim. The court concluded that, despite State
testimony by a forensic pathologist of the inherent risk of
heroin overdose, the State did not prove beyond a reasonable
doubt that the defendant acted recklessly, because it did not
prove beyond a reasonable doubt that the victim's death was
28
probable under the circumstances. Id. at 33. It further noted
that "[w]hile we recognize the concern of the heroin epidemic
and the rise in deaths as a result of heroin use . . . [t]o rule
as the State suggests and hold that [the d]efendant acted
recklessly simply by providing [the victim] with heroin would
create a per se involuntary manslaughter rule, which we are
unwilling [to] impose upon criminal defendants absent clear
legislative intent." Id.
The Court of Appeals of Iowa came to a similar conclusion,
also vacating a conviction of involuntary manslaughter arising
out of an overdose death. See Miller, 874 N.W.2d at 667. The
court determined that, without circumstances increasing the risk
of harm, there was insufficient evidence to establish that the
defendant acted recklessly. Id. at 666 (there must be "evidence
establishing an increased risk of death and the defendant's
awareness of an elevated risk of overdose and death beyond mere
delivery of the controlled substance"). As to the State's
suggestion "that the delivery of heroin, without more, is always
substantial evidence of recklessness," the court rejected "this
per se or categorical approach," id. at 664, for three reasons:
"First, such an approach is inconsistent with our case law
regarding criminal recklessness. The mere delivery of
heroin, without more, does not necessarily establish a
sufficiently material increase in the probability of the
proscribed harm. More important, the per se approach is
inconsistent with the culpability aspect of recklessness,
in which the jury must determine whether the defendant had
29
or should have had a 'subjective awareness of the risk'
such that his disregard of the increased risk warrants
criminal sanction. . . . Second, the per se approach is
inconsistent with our general approach to criminal
proceedings, which requires the State to prove beyond a
reasonable doubt each and every element of the
offense. . . . Third, adopting a rule of strict liability
for death resulting from delivery of a controlled substance
is a policy decision best addressed by the legislature
rather than the judiciary."9
9 As to this third point, at least eighteen States have
enacted laws providing for strict liability homicide where a
person transfers heroin to another who later overdoses and dies.
See Alaska Stat. § 11.41.120(a)(3) (manslaughter); Colo. Rev.
Stat. § 18-3-102(1)(e) (murder in first degree only as to
distribution to minor on school grounds); Fla. Stat.
§ 782.04(1)(a)(3) (murder in first degree); 720 Ill. Comp. Stat.
5/9-3.3 ("drug-induced homicide" with minimum sentence of
fifteen years); La. Rev. Stat. Ann. § 14:30.1(A)(3) (second
degree murder); Mich. Comp. Laws § 750.317a (drug-induced
homicide with sentence up to life); Minn. Stat. § 609.195(b)
(murder in third degree); N.H. Rev. Stat. § 318-B:26(IX) (strict
liability homicide with sentence up to life); N.J. Stat. Ann.
§ 2C:35-9 (strict liability homicide); N.C. Gen. Stat. § 14-
17(b)(2) (second degree murder); Okla. Stat. tit. 21, § 701.7(B)
(murder in first degree); 18 Pa. Cons. Stat. § 2506 ("drug
dealing resulting in death" as homicide offense); R.I. Gen. Laws
§ 11-23-6 (drug-induced homicide only as to distribution to
minor, carrying life sentence); Tenn. Code Ann. § 39-13-
210(a)(2) (second degree murder); Wash. Rev. Code § 69.50.415
("controlled substances homicide"); W. Va. Code § 61-2-1 (murder
in first degree); Wis. Stat. § 940.02(2)(a), (b) (first degree
reckless homicide); Wyo. Stat. Ann. § 6-2-108 (drug induced
homicide).
Three other States ratchet up the permissible sentencing
range for drug distribution where it results in death from an
overdose. See Del. Code Ann. tit 16, § 4752B; Kan. Stat. Ann. §
21-5430; Vt. Stat. Ann. tit. 18, § 4250.
The Massachusetts Legislature has considered strict
liability homicide legislation but did not enact it. See 2017
Senate Doc. No. 2158 at 7 ("Any person who . . . distributes[ ]
or dispenses heroin . . . is strictly liable for a death which
results from the injection, inhalation or ingestion of that
substance, and shall be punished by imprisonment for life or for
30
Id. at 664-665.
Most recently, in State v. Thomas, 464 Md. 133, 140 (2019),
the Court of Appeals of Maryland -- Maryland's highest court --
affirmed the defendant's conviction of involuntary manslaughter
on the theory of gross negligence but declared that "a per se
rule providing that all heroin distribution resulting in death
constitutes gross negligence involuntary manslaughter is unwise
and not in keeping with our precedent." Id. at 167. "Instead,"
the court stated, "we must consider the inherent dangerousness
of distributing heroin with the attendant environmental risk
factors presented by each case." Id.10 That conclusion is
consistent with our holding here.
any term of years as the court may order, and by a fine or not
more than $25,000; provided, however, that the sentence of
imprisonment . . . shall not be reduced to less than 5 years,
nor suspended, nor shall any such person be eligible for
probation, parole or furlough or receive a deduction from his or
her sentence for good conduct until such person shall have
served 5 years of such sentence").
A bill with the same text as the 2017 bill was reintroduced
in 2019. See 2019 House Doc. No. 1411.
10 We recognize that the court in State v. Thomas, 464 Md.
133, 145, 147-150, 180 (2019), found the evidence sufficient to
establish gross negligence involuntary manslaughter based on
facts comparable to those in the instant case: the victim was
known to be drug addicted, the defendant had sold four bags of
heroin to the nineteen year old victim on the night he died from
an overdose, the defendant himself had regularly used four bags
of the same heroin product and had not overdosed, there was no
evidence of the unusual potency of the heroin, and, when
confronted with the victim's death, the defendant told the
31
Today we simply reaffirm that "guilt of criminal homicide,
like any other offense, depends upon proof." Lofthouse, 13
S.W.3d at 241. Where there is specific evidence that the
defendant knew or should have known that his or her conduct
created "a high degree of likelihood that substantial harm will
result," Welansky, 316 Mass. at 399, the Commonwealth may indeed
convict the person who sold or gave the heroin to the decedent
of involuntary manslaughter. But here, the Commonwealth in its
police lieutenant, "He couldn't have overdosed off what I sold
him; I only sold him four bags."
But we also recognize that the legal standard in Maryland
for gross negligence involuntary manslaughter differs from our
legal standard for involuntary manslaughter, even though
Maryland law equates "'gross negligence' with a 'wanton or
reckless disregard for human life'" (citation omitted). Id. at
153. Although the common law of Massachusetts defines wanton or
reckless conduct as conduct that creates a high degree of
likelihood that substantial harm will result to another, under
the common law of Maryland, "'gross negligence' mens rea is
established by asking whether the accused's conduct, under the
circumstances, amounted to a disregard of the consequences which
might ensue and indifference to the rights of others"
(quotations omitted). Id., quoting State v. Albrecht, 336 Md.
475, 500 (1994). The Thomas court added that, for criminal
gross negligence, "the inherent dangerousness of the act engaged
in, as judged by a reasonable person, . . . is combined with
environmental risk factors which, together, make the particular
activity more or less 'likely at any moment to bring harm to
another'" (emphasis added). Thomas, supra at 159, quoting
Johnson v. State, 213 Md. 527, 533 (1957). Indeed, the court
noted that the holdings of the Kentucky court in Lofthouse, 13
S.W.3d at 241, and the Iowa court in Miller, 874 N.W.2d at 663,
were "inapt" because the standard for criminal gross negligence
in those States "requires the State to demonstrate a higher
'probability of harm' than the one borne out by our cases."
Thomas, supra at 166.
32
case-in-chief proved little more than that Sinacori overdosed
and died after using heroin given to him by the defendant; it
proved no additional facts that transformed the inherent
possibility of an overdose arising from any use of heroin into a
high degree of likelihood of an overdose. As a result, the
evidence was insufficient to support a finding beyond a
reasonable doubt that the defendant knew, or that a reasonable
person would have known, that there was a high degree of
likelihood that Sinacori would overdose from the use of that
heroin. Consequently, the conviction cannot stand. We remand
the case to the Superior Court for entry of a required finding
of not guilty on the involuntary manslaughter indictment.
2. Failure to give instruction on the lesser included
offense of simple possession of heroin. As another consequence
of his transfer of heroin to Sinacori, the defendant was
convicted of distribution of heroin in violation of G. L.
c. 94C, § 32.11 The second issue on appeal is whether the judge
erred by declining to instruct the jury on the lesser included
offense of simple possession of heroin. The defendant argues
that the jury should have been given the opportunity to convict
11The defendant was sentenced on the heroin distribution
conviction to two years and six months in a house of correction,
with one year to serve and the balance suspended and five years'
probation. He was sentenced to a concurrent probation term of
five years on the involuntary manslaughter conviction.
33
him only of possession, not distribution, because he and
Sinacori were engaged in a "joint venture" to possess heroin
when the defendant purchased it in New York. The defendant
twice requested this instruction -- before trial and after the
close of all the evidence -- and objected to the judge's refusal
to give it. Accordingly, we review the judge's decision for
prejudicial error. Commonwealth v. Henderson, 434 Mass. 155,
158 (2001).
In contrast with our evaluation of the sufficiency of the
evidence of involuntary manslaughter, where we considered only
the evidence that was presented before the defendant moved for a
required finding of not guilty after the Commonwealth rested its
case-in-chief, here we review all the evidence presented at
trial to determine whether it would permit the jury to find the
defendant guilty only of simple possession. See id. "In
determining whether any view of the evidence would support a
conviction on a lesser included offense, 'all reasonable
inferences must be resolved in favor of the defendant,'
Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975)."
Commonwealth v. Gilmore, 399 Mass. 741, 746 (1987), quoting
Commonwealth v. Egerton, 396 Mass. 499, 503 (1986). If the
evidence would so permit, "a judge must, upon request, instruct
the jury on the possibility of conviction of the lesser crime"
34
(citation and emphasis omitted). Commonwealth v. Roberts, 407
Mass. 731, 737 (1990).
a. The defendant's testimony. The defendant testified in
his own defense and admitted that he possessed heroin on the
evening in question and gave some of that heroin to Sinacori.
The defendant testified that he frequently drove from Amherst to
the Bronx -- up to four times per week -- to purchase heroin for
his own personal use. After Sinacori asked the defendant to
purchase some heroin for him, the defendant on October 1, 2013,
collected one hundred dollars from Sinacori and drove to New
York to purchase heroin both for himself and for Sinacori. Upon
his return, he and Sinacori each used some of their own heroin
in the defendant's apartment. Sinacori sent him a text message
on October 3 to ask if he was "making another run," which the
defendant understood to mean that Sinacori wanted more heroin.
Sinacori provided the defendant with seventy dollars to purchase
seven bags of heroin, and promised to give the defendant another
thirty dollars later that evening in exchange for a total of ten
bags. As he had done when he previously went to New York to buy
heroin for himself and Sinacori, the defendant put Sinacori's
money -- and then the heroin once it was purchased -- in a
different pocket to keep their respective shares separated.
Sinacori was ultimately only able to produce another twenty
dollars, so the defendant gave Sinacori nine bags and kept the
35
remaining one out of the ten-pack for himself, in addition to
the other heroin that he had bought for himself.
Sinacori did not accompany the defendant to New York in
either instance. There was no evidence that Sinacori himself
had any interaction with the defendant's supplier in New York or
had any role in negotiating prices. In contrast, the defendant
frequently purchased his own heroin from the same supplier,
sometimes negotiating for discounts. On September 30, for
example, before the October 1 "run" to buy heroin for himself
and Sinacori, the defendant sent Sinacori a text message
indicating that he would try to get a "deal" on twenty bags.
b. Discussion. The statutory scheme governing
distribution of controlled substances defines "[d]istribute" as
"to deliver other than by administering or dispensing a
controlled substance." G. L. c. 94C, § 1. "Deliver" is defined
as "to transfer, whether by actual or constructive transfer, a
controlled substance from one person to another, whether or not
there is an agency relationship." Id. The defendant contends
that, although he literally delivered heroin to Sinacori, he did
not deliver the heroin within the meaning of G. L. c. 94C, § 1,
because Sinacori jointly and constructively possessed his share
of the heroin at the same time that the defendant purchased it
in New York, and the defendant thus could not "deliver" or
"distribute" heroin that Sinacori already possessed. See State
36
v. Morrison, 188 N.J. 2, 14 (2006) ("It hardly requires stating
that the 'transfer' of a controlled dangerous substance cannot
occur . . . if the intended recipient already [legally]
possesses that substance"). In view of the relevant case law
and the factual circumstances in this case, however, we are not
persuaded that a reasonable jury could have found that Sinacori
jointly possessed his share of the heroin when the defendant
purchased it for him in New York.
In Commonwealth v. Johnson, 413 Mass. 598, 605 (1992), we
held that "to purchase [narcotics], even with friends' money,
intending to transfer it to them, constitutes distribution," in
violation of G. L. c. 94C, § 32. While we recognized an
exception "[w]here two or more persons simultaneously and
jointly acquire possession of a drug for their own use intending
only to share it together," which would constitute joint
possession, this is "limited to the situation when the persons
. . . are there at the acquisition together and simultaneously
acquire." Id. at 604. Of course, "[n]o cases require literal
simultaneous possession" or acquisition, Weldon v. United
States, 840 F.3d 865, 867 (7th Cir. 2016), but Johnson suggests
that all parties engaged in joint possession must at least be
physically present at the time the drugs are acquired. We
further held in Commonwealth v. Fluellen, 456 Mass. 517, 525
(2010), that a joint possession theory is "inapplicable to
37
circumstances where a defendant facilitates a transfer of drugs
from a seller to a buyer." See Commonwealth v. Jackson, 464
Mass. 758, 763 (2013) (facilitating transfer of drugs "can
constitute the crime of distribution even if the defendant
intends to share some of the drug with the buyer"); Commonwealth
v. Rodriguez, 456 Mass. 578, 584 n.8 (2010) (distinguishing
"defendant's transfer of cocaine he had just purchased, which
would constitute distribution, [and] his division of the cocaine
that [he and another] had simultaneously and jointly acquired,
which would constitute joint possession"). In short, the crime
of distribution occurs "whenever the defendant serves as 'a link
in the chain' between supplier and consumer." Jackson, supra at
764, quoting Fluellen, supra.
Here, the defendant argues that we should revisit our rule
that drugs are jointly possessed only where both persons were
present when the drugs were acquired. First, he contends, in
essence, that Johnson and its progeny are no longer good law in
light of our holding in Commonwealth v. Zanetti, 454 Mass. 449,
462 (2009), where we held that a defendant need not be
physically present at the crime scene to be found guilty as a
joint venturer. Second, he argues that, in spite of Johnson,
physical presence at the time of acquisition is not required
where "the absent [party] was then entitled to exercise joint
physical possession" of the illicit drugs (emphasis in
38
original). State v. Carithers, 490 N.W.2d 620, 622 (Minn.
1992). We address these arguments in turn.
In Zanetti, 454 Mass. at 463, we amended the formulation
for joint venture liability that was articulated in Commonwealth
v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983), which
provided that "[t]he test [for joint venture] is whether each
defendant was (1) present at the scene of the crime, (2) with
knowledge that another intends to commit the crime or with
intent to commit a crime, and (3) by agreement is willing and
available to help the other if necessary." Concluding that this
framework was confusing and failed to respect "the spirit behind
the common law as now reflected in the aiding and abetting
statute, G. L. c. 274, § 2," we instead adopted the formulation
of aiding and abetting in cases where there was evidence "that
more than one person may have participated in the commission of
the crime." Zanetti, supra at 467. In so doing, we clarified
that an accomplice who knowingly participated in the offense
with the intent required for that offense may be convicted of
the offense as a joint venturer even if not physically present
at the scene of the crime. Id. at 462, 467. See Commonwealth
v. Brown, 477 Mass. 805, 813 (2017), cert. denied, 139 S. Ct. 54
(2018), quoting Commonwealth v. Silanskas, 433 Mass. 678, 690
n.13 (2001) ("A defendant may be convicted as a coventurer when
he or she is not present at the scene of the crime 'so long as
39
the jury [find] [that the defendant] had actually associated
[himself or herself] with the criminal venture and assisted in
making it a success'").
The flaw in the defendant's argument is that, since the
time we decided the Zanetti case, we have repeatedly reaffirmed
the requirement that both persons be physically present at the
time of acquisition in order to show joint possession of
narcotics under G. L. c. 94C. See Jackson, 464 Mass. at 763;
Fluellen, 456 Mass. at 524-525. And, as we made clear in
Zanetti, our "shift from the language of joint venture to the
language of aiding and abetting does not enlarge or diminish the
scope of existing joint venture liability." Zanetti, 454 Mass.
at 468. Nor does it change our definition of joint possession.
Second, the defendant suggests, essentially, that our
holding in Johnson requiring physical presence at the time of
acquisition should be reexamined in light of our legal
principles of constructive possession. Certainly, the
possession of heroin "need not be exclusive," but "may be joint
and constructive." Commonwealth v. Beverly, 389 Mass. 866, 870
(1983). See Instruction 3.220 of the Criminal Model Jury
Instructions for Use in the District Court (2009) (possession)
("A person can also 'possess' something even if he is not its
sole owner or holder. For example, a person is considered to
40
'possess' something which he owns or holds jointly with another
person, who is keeping it for both of them").
And, to be sure, various courts have concluded that "[a]
buyer could have 'constructive possession' before actual
delivery," United States v. Palacios-Quinonez, 431 F.3d 471, 475
(5th Cir. 2005), cert. denied, 547 U.S. 1035 (2006), such as
where a defendant so directly orders the "disposition or
movement of the drug as to warrant the inference he possesses
it." Id., quoting Armstrong v. Superior Court, 217 Cal. App. 3d
535, 539 (1990). See United States v. Pelusio, 725 F.2d 161,
167 (2d Cir. 1983), quoting United States v. Craven, 478 F.2d
1329, 1333 (6th Cir. 1973), cert. denied, 414 U.S. 866 (1973)
("Constructive possession exists when a person . . . knowingly
has the power and the intention at a given time to exercise
dominion and control over an object, either directly or through
others"). Consequently, a defendant who directs a courier to
pick up a substantial quantity of heroin on his or her behalf
may be found to have possessed the drugs once the courier
obtained the drugs, even where the defendant is not present at
the pick-up, and therefore may be found guilty of possession
with intent to distribute if the drugs are seized when they are
still in the courier's possession. See, e.g., United States v.
Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986) ("doctrine of
constructive possession . . . creates a legal fiction to take
41
care of such cases as that of a drug dealer who operates through
hirelings who have physical possession of the drugs. It would
be odd if a dealer could not be guilty of possession, merely
because he had the resources to hire a flunky to have custody of
the drugs"); United States v. Felts, 497 F.2d 80, 82 (5th Cir.
1974), cert. denied, 419 U.S. 1051 (1974) ("a party who
instigated the sale, negotiated the price, and caused the drug
to be produced for the customer had constructive possession of
it," which is sufficient to support conviction of possession
with intent to distribute).
But here, the issue is whether a reasonable jury could
conclude that the delivery the defendant made to Sinacori was
not a "distribution" of drugs, but was instead a joint
possession of drugs for personal use. In Commonwealth v.
Blevins, 56 Mass. App. Ct. 206, 209 (2002), the Appeals Court
identified circumstances where a defendant charged with
distribution was entitled to a requested instruction on simple
possession:
"The evidence -- that the defendant and his two companions
were friends who on occasion shared drugs; that the three
had pooled their money to purchase drugs they intended to
share; that they each participated in the negotiation for
the purchase of drugs; and that all were present when the
drugs were paid for and received -- was, if believed,
sufficient to support a finding that the drugs were
simultaneously and jointly acquired and intended to be
shared only by the three purchasers."
42
Similarly, the United States Court of Appeals for the
Seventh Circuit in Weldon, 840 F.3d at 867, concluded that a
defendant may be guilty only of drug possession rather than of
drug distribution where three friends "agreed to get high
together, they shared the expense, they all went together to the
drug dealer, and they shared the drug they bought from him."
The fact that the defendant was the one who got out of the
vehicle, paid the pooled money to the drug dealer, and carried
the drugs back to the vehicle for the three of them to share did
not necessarily mean that he was guilty of drug distribution.
Id. at 866.12
If we were faced with facts comparable to those in Weldon,
where equal partners participated in a drug purchase but only
one partner walked to the supplier's vehicle to receive the
drugs, we might need to revisit the rule in Johnson that drugs
can be jointly possessed for personal use only where all persons
were present when the drugs were acquired. But we need not
12 The court reasoned:
"Suppose you have lunch with a friend, order two
hamburgers, and when your hamburgers are ready you pick
them up at the food counter and bring them back to the
table and he eats one and you eat the other. It would be
very odd to describe what you had done as 'distributing'
the food to him. It is similarly odd to describe what [the
defendant] did as distribution."
Weldon v. United States, 840 F.3d 865, 866 (7th Cir. 2016).
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revisit that rule here, because we do not have facts comparable
to those in Weldon. In this case, the defendant traveled
several hours across State lines to purchase the heroin while
Sinacori remained in Amherst. There was no evidence that
Sinacori had any involvement in negotiating the transaction. In
contrast, the defendant explained to Sinacori the prices that
were available, and the defendant alone had a role in trying to
bargain for discounts. Moreover, the record reveals no evidence
that Sinacori knew who the defendant's supplier was, or that he
even knew precisely where the defendant was going. And when
Sinacori was unable to pay the defendant for all the heroin that
he purchased, the defendant kept a bag for himself, exercising a
certain level of control over the drugs that he obtained from
his supplier.
Here, unlike in Weldon, the defendant giving the drugs to
Sinacori -- rather than vice-versa -- was not the result of a
mere fortuity or convenience. The defendant was the "middle
man," the link in the chain between supplier and buyer, who
facilitated the sale of drugs to the buyer -- Sinacori. The
fact that the defendant made no profit from the transaction is
not dispositive as to whether he distributed the drugs rather
than jointly possessed them for personal use. See Johnson, 413
Mass. at 605. What is dispositive is that the defendant's
active role in this transaction differed substantially from
44
Sinacori's passive role -- the defendant knew the supplier,
negotiated prices, traveled alone to obtain the heroin, and
determined whether he would share the heroin with Sinacori. See
People v. Edwards, 39 Cal. 3d 107, 114 (1985) (distinguishing
scenario with "equal partners" in consummation of drug purchase,
which would be joint possession, from scenario where one person
"instigated the purchase and was actively involved in arranging
and consummating the deal, while [the other] was wholly passive
and merely accepted the heroin," which would be distribution).
On the facts of this case, viewed in the light most favorable to
the defendant, we conclude that no reasonable jury could have
concluded that the defendant was guilty only of the simple
possession of heroin. The judge therefore did not err in
denying the defendant's request for the lesser included
instruction.
Conclusion. The order denying the defendant's request to
instruct the jury on the lesser included offense of simple
possession of heroin is affirmed, as is the judgment of
conviction of distribution of heroin. As to the defendant's
conviction of involuntary manslaughter, the judgment is vacated,
the verdict is set aside, and the case is remanded to the
Superior Court for entry of a required finding of not guilty.
So ordered.