Commonwealth v. Cotto
27 N.E.3d 1213
Mass.2015Background
- In 2007 Erick Cotto Jr. was indicted for trafficking cocaine and related charges; samples in his case were tested by DPH chemist Sonja Farak on June 8, 2007 and she signed the drug certificates. Cotto pleaded guilty in April 2009.
- In January 2013 Farak was arrested after State police discovered missing evidence and materials suggesting she stole and replaced cocaine at the Amherst drug lab; she later pleaded guilty to multiple counts of tampering, theft, and possession.
- After Farak’s misconduct became public, Cotto (April 2013) moved under Mass. R. Crim. P. 30(b) to withdraw his guilty pleas, arguing the pleas were not knowing/voluntary because they rested on drug certificates signed by Farak and that her misconduct constituted newly discovered evidence.
- The Superior Court denied the motion, finding insufficient evidence that Farak’s tampering antedated Cotto’s plea and that Cotto would not have pleaded guilty even if he had known.
- The Supreme Judicial Court vacated that denial, holding Farak’s misconduct was egregious and attributable to the Commonwealth, declined to apply the conclusive presumption from Commonwealth v. Scott (because the scope/timing of Farak’s misconduct was not yet shown to be systemic), and remanded for further proceedings including procedures for retesting available samples and requiring the Commonwealth to investigate the scope/timing of the misconduct.
Issues
| Issue | Cotto’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether the conclusive presumption from Commonwealth v. Scott should apply (i.e., presume Farak’s misconduct occurred in Cotto’s case) | Farak’s misconduct was egregious and systemic; Cotto proffered a drug certificate signed by Farak so he is entitled to Scott presumption | Farak’s misconduct, while egregious, appears limited and not shown to be systemic; Scott presumption is limited to Dookhan facts | Court: Farak’s conduct was egregious and attributable to the government, but Scott presumption does not apply because there is not yet evidence of systemic, widespread misconduct comparable to Dookhan’s case |
| Whether Cotto proved Farak’s misconduct antedated his 2009 plea (nexus to his case) | Circumstantial evidence and other irregularities suggest long-running tampering that could include 2007 | Evidence on record shows tampering beginning ~summer 2012; no proof misconduct reached back to 2007; Commonwealth had not yet completed a thorough investigation | Court: Cotto failed to show at this stage that misconduct antedated his plea, but the Commonwealth’s limited investigation requires further procedures (retesting, inquiry) to establish timing/scope |
| Whether Cotto’s plea was involuntary/materially affected by Farak’s misconduct (second prong) | If misconduct had been known, there is reasonable probability Cotto would not have pleaded guilty | Even assuming misconduct, Cotto had strong reasons to plead (confession, evidence, favorable plea terms) so he would have pled anyway | Court: Jury-trial/materiality question must be reconsidered on remand after further fact development; judge should reassess second prong in light of any retesting or Commonwealth investigation |
| Whether subpoena of Farak’s spouse (Nikki Lee) could be quashed on spousal privilege grounds | Subpoena for evidentiary hearing testimony was proper; spousal privilege inapplicable because hearing is not a criminal trial against spouse | Judge quashed subpoena on spousal privilege; Lee invoked Fifth Amendment and spousal privilege | Court: Quash on spousal-privilege ground was error—spousal privilege did not apply to this non-trial evidentiary hearing—but judge could properly quash on Fifth Amendment (self-incrimination) grounds given reasonable risk of incriminating testimony |
Key Cases Cited
- Commonwealth v. Scott, 467 Mass. 336 (Mass. 2014) (establishes special conclusive-presumption rule for Dookhan-style systemic lab misconduct and frames two-prong Ferrara analysis for plea withdrawal)
- Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006) (two-prong test: egregious government misconduct that antedates plea and materiality to decision to plead)
- Commonwealth v. Furr, 454 Mass. 101 (Mass. 2009) (standard for Rule 30(b) motion to withdraw plea/new trial review)
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (constitutional requirement that guilty pleas be knowing and voluntary)