Commonwealth v. NelsonCommonwealth v. Nelson
Controlled Substances. Constitutional Law, Conduct of government agents. Practice, Criminal, Conduct of government agents, Disclosure of evidence, New trial. Due Process of Law, Disclosure of evidence. Evidence, Disclosure of evidence, Certificate of drug analysis.
This court concluded that a criminal defendant who had been found guilty of various drug offenses and who had moved for a new trial after the discovery of problems at the State police crime laboratory and the misconduct by an analyst there was not entitled to a new trial, where it was undisputed that the analyst hаd not participated in testing, analyzing, or reviewing the drugs the defendant was accused of possessing, and where the defendant failed to show that the problems at the laboratory affected the accuracy or the reliability of the testing; further, there was no merit to the defendant‘s contention that he was entitled to a new trial because the Commonwealth had violated its discovery obligations by failing to disclose the analyst‘s misconduct or the problems at the laboratory. [595-597]
The evidence at the trial of indictments charging various drug offenses was sufficient tо prove the defendant‘s constructive possession beyond a reasonable doubt. [597-598]
INDICTMENTS found and returned in the Superior Court Department on February 1, 2008.
A motion for a new trial, filed on Decеmber 17, 2012, was heard by Paul A. Chernoff, J., special judicial magistrate, and an order affirming the proposed order of the magistrate was entered by Thomas F. McGuire, Jr., J.
Thomas C. Foley for the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.
WOLOHOJIAN, J. In 2009, a jury convicted the defendant of various drug offenses.1 The drugs at issue were tested and analyzed at the William A. Hinton State Laboratory Institute (Hinton lab or lab),
The details of Dookhan‘s egregious misconduct can be found in Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014), and we accordingly do not repeat them here. In Scott, supra аt 338, the Supreme Judicial Court held that a defendant seeking to withdraw a guilty plea after learning of Dookhan‘s misconduct is entitled to a conclusive presumption of egregious governmеnt misconduct where Dookhan signed the certificate of drug analysis (drug certificate) as primary or secondary chemist. The presumption of egregious government misconduct does nоt entitle a defendant to relief unless he also demonstrates a “nexus between the government misconduct and the defendant‘s own case.”3 Id. at 351. That nexus exists if “Dookhan signed the drug certificatе in her role as an analyst in that defendant‘s case.” Id. at 353.
In Commonwealth v. Francis, 474 Mass. 816, 823 (2016), the same conclusive presumption was extended to those who, like the defendant, “seek[ ] to vacate his or her conviction at trial after learning of Dookhan‘s misconduct.” Although Francis does not explicitly state that a defendant must demonstrate a nexus between Dookhan‘s misconduct and his case where he seеks to vacate his conviction after trial (rather than withdraw his plea), we see no reason why a defendant would be relieved of the bur-den
Here, it is undisputed that Dookhan did not sign the drug certificate as either the primary or the secondary chemist. Nor has the defendant shown any connection between other alleged improprieties at the Hinton lab and the accuracy or the reliability of the testing of the drugs at issue hеre. In short, although the defendant is correct that the conclusive presumption of misconduct created in Scott is available not only to those seeking to withdraw pleas but also to thosе seeking to vacate their convictions, he was entitled to a new trial only if he could show a nexus between Dookhan‘s misconduct or the alleged irregularities at the Hinton lab and his own case. Contrary to the defendant‘s argument, it is not enough simply to show that problems occurred in the lab, however egregious they were; he needed to demonstrate a connectiоn between those problems and his case.
We are also unpersuaded by the defendant‘s argument that he was entitled to a new trial because the Commonwealth violated its discovery obligations, Brady v. Maryland, 373 U.S. 83, 87 (1963), by failing to disclose Dookhan‘s misconduct and other alleged irregularities at the Hinton lab. “To establish a Brady violation, a defendant must show that (1) material information was in the possеssion of the prosecutor or those police who are participants in the investigation and presentation of the case; (2) the information tended to exculpate him; аnd (3) the prosecutor failed to disclose the evidence. The so-called Brady obligation is one of disclosure; it imposes no obligation on the prosecution to gather evidenсe or conduct additional investigation.” Commonwealth v. Caillot, 454 Mass. 245, 261-262 (2009) (quotation marks and citations omitted).
Here, as the special magistrate found, there is no indication that anyone knew the true magnitude of Dookhan‘s misconduct before it came to light in 2012, well after the defendant‘s trial in 2009. The special magistrate correctly concluded that the Com-monwealth
We turn now to the arguments the defеndant raises in his direct appeal. First, the defendant argues that the trial judge erred by permitting a police officer to offer expert testimony concerning the economic reasons an addict would purchase drugs in bulk rather than in smaller packages. Second, the defendant contends that his motion to suppress should have been allowed because the sеarch warrant was insufficiently particularized. Lastly, the defendant argues the evidence was insufficient to prove his constructive possession beyond a reasonable doubt.4 The first two arguments are controlled by our decision in the codefendant‘s appeal, and we do not revisit those analyses here. See Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 414-418 (2013).
As to the third, contrary to the defendant‘s contention, this is not a case of mere presence alone: (1) the defendant was seated on the couch of his residence at 10:00 P.M., see Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 680 n.9 (2006) (residential status indicates more than mere presеnce); (2) the drugs were on the coffee table and drug-related items (scale and baggies) were also present and visible, see Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 324 (2010) (evidence of constructive possession sufficient whеre “the defendant was in the only room where contraband was located . . . [and] was in close proximity to the drugs and packaging materials that were in the open, in plain view“); (3) the roоm was very small (eight feet by ten or twelve feet); and (4) only the defendant and his girl friend were present in a state of undress and at an hour that indicated familiarity with, and residence in, the apartment, see ibid. (fact that “the defendant was wearing only a T-shirt in January, and was thus not appropriately dressed to be outside, supports a finding that he was not simply passing through“). Contrast Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225-227 (1993) (insufficient evidence of
Judgments affirmed.
Order denying motion for new trial affirmed.