COMMONWEALTH vs. ADMILSON RESENDE
Supreme Judicial Court of Massachusetts
July 25, 2016
475 Mass. 1 (2016)
Plymouth. April 4, 2016.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.1
Controlled Substances. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea, Disclosure of evidence, Presumption. Practice, Criminal, Plea, New trial, Conduct of government agents, Disclosure of evidence, Presumptions and burden of proof. Evidence, Guilty plea, Certificate of drug analysis, Presumptions, Disclosure of evidence.
A Superior Court judge properly denied the criminal defendant‘s motion to withdraw his guilty plea to indictments charging distribution of a class B controlled substance, violation of the controlled substances laws in proximity to a school or park, and possession of a class B controlled substance with
INDICTMENTS found and returned in the Superior Court Department on November 9, 2006.
A motion to withdraw a guilty plea, filed on October 2, 2012, and supplemented on March 20, 2014, was heard by Paul A. Chernoff, J., special judicial magistrate, and an order affirming the proposed order of the special judicial magistrate was entered by Frank M. Gaziano, J.
The Supreme Judicial Court granted an application for direct appellate review.
Patrick Levin, Committee for Public Counsel Services, for the defendant.
Laurie Yeshulas, Assistant District Attorney (Lisa J. Jacobs, Assistant District Attorney, also present) for the Commonwealth.
SPINA, J. The present case is the most recent in a series of cases concerning the egregious misconduct of Annie Dookhan, a chemist who was employed in the forensic drug laboratory of the William A. Hinton State Laboratory Institute (Hinton drug lab) from 2003 until 2012. On January 23, 2007, the defendant, Admilson Resende, pleaded guilty on indictments charging distribution of a class B controlled substance (cocaine),
Prior to the issuance of a ruling on the defendant‘s motion, this court decided Commonwealth v. Scott, 467 Mass. 336 (2014), in which we articulated, in reliance on Ferrara v. United States, 456 F.3d 278, 290-297 (1st Cir. 2006), a two-prong framework for analyzing a defendant‘s motion to withdraw a guilty plea under rule 30 (b) in a case involving the misconduct of Dookhan at the Hinton drug lab. Scott, supra at 346-358. Under the first prong of the analysis, a defendant must show egregious misconduct by the government that preceded the entry of the defendant‘s guilty plea and that occurred in the defendant‘s case. Id. at 347-354. We recognized that, given the breadth and duration of Dookhan‘s malfeasance, it might be impossible for a defendant to show the required nexus between government misconduct and the defendant‘s own case. Id. at 351-352. Consequently, we established a special evidentiary rule whereby a defendant seeking to vacate a guilty plea under rule 30 (b) as a result of the revelation of Dookhan‘s misconduct, and proffering a certificate of drug analysis (drug certificate) from the defendant‘s case signed by Dookhan on the line labeled “Assistant Analyst,” would be entitled to “a conclusive presumption that egregious government misconduct occurred in the defendant‘s case.” Id. at 352. Application of this conclusive presumption in a particular case meant that a defendant‘s evidentiary burden to establish each element of the first prong of the Ferrara-Scott framework was satisfied. Id. at 353-354. The defendant then had the burden under the second prong of the analysis of particularizing Dookhan‘s misconduct to his or her decision to tender a guilty plea. Id. at 354-355. That is to say, the defendant had to “demonstrate a reasonable probability that he [or she] would not have pleaded guilty had he [or she] known of Dookhan‘s misconduct.” Id. at 355. A successful show-ing
In light of our decision in Scott, as well as new evidence concerning the Hinton drug lab‘s analyses of the samples in his case,4 the defendant filed supplemental pleadings on March 20, 2014, in support of his motion to withdraw his guilty pleas. He pointed out that Dookhan had set up and operated the gas chromatography-mass spectrometry (GC-MS) machine for three out of the seven samples in his case (although her name did not appear on those drug certificates), and that she had been the confirmatory chemist for a fourth sample. As a consequence, the defendant asserted that, with respect to these four samples, he was entitled to the conclusive presumption articulated in Scott, 467 Mass. at 352, that egregious government misconduct occurred in his case. He further argued that he would not have pleaded guilty had he known of Dookhan‘s misconduct at the time of his pleas.
Following an evidentiary hearing, a special magistrate appointed by the Chief Justice of the Superior Court Department of the Trial Court pursuant to
1. Background. On four divers dates in August, 2006, Detective Timothy Stanton of the Brockton police department conducted “controlled buys” of what appeared to be cocaine from the defendant. Each purchase occurred in a similar manner. Stanton would telephone a number that had been provided by the defendant and would meet him (or, on the first occasion, a female associate) at a designated location in the “Village” section of Brockton. Each of these locations was within 1,000 feet of an elementary school or a park. Stanton would purchase two “twenty” bags of an off-white rock-like substance from the defendant for forty dollars. Before and after several of these controlled buys, the defendant was observed leaving and reentering a multifamily home on North Montello Street. Field tests conducted on the substances indicated the presumptive presence of cocaine. Based on these controlled buys, Stanton applied for and was granted a search warrant for the defendant‘s residence on the first floor of the North Montello Street address.
On August 22, 2006, Stanton engaged in a fifth controlled buy with the intention of executing the search warrant immediately thereafter. He telephoned the defendant, who directed him to the corner of North Montello Street and King Avenue and advised him that he would have one “forty” bag instead of two “twenty” bags. When Stanton arrived at the meeting place, he telephoned the defendant and subsequently observed him leaving the residence on North Montello Street. Stanton gave the defendant two twenty dollar bills with prerecorded serial numbers in exchange for a clear plastic bag containing an off-white rock-like substance. A team of police officers then secured the defendant and took him into custody. The defendant was advised of the Miranda rights and acknowledged that he understood those rights. Found on the defendant‘s person were a Nextel cellular telephone (on which Stanton‘s recent telephone call was still visible), three pieces of an off-white rock-like substance wrapped in clear plastic, a bag containing green vegetable matter, and two twenty dollar bills having the prerecorded serial numbers.
The substances recovered from the five controlled buys and from the defendant‘s person were sent to the Hinton drug lab for analysis. Seven drug certificates were issued. As relevant to the
In 2012, Dookhan admitted to tampering with evidence at the Hinton drug lab, failing to comply with quality control measures, forging the initials of an evidence officer, and “dry labbing.”7 See Scott, 467 Mass. at 339-340. It appeared that “the motive for her wrongdoing was in large part a desire to increase her apparent productivity.” Id. at 341. Following a criminal investigation into Dookhan‘s misconduct, the Attorney General‘s office indicted her on twenty-seven charges - seventeen counts of tampering with evidence, eight counts of obstruction of justice, one count of perjury, and one count of falsely claiming to hold a degree from a college or university. See id. at 337 & n.3. On November 22, 2013, Dookhan pleaded guilty to all of the charges. See id. She was sentenced to from three years to five years in the State prison, followed by a probationary term of two years.
2. Testing procedures at the Hinton drug lab. At the April 22, 2014, hearing before the special magistrate on the defendant‘s motion to withdraw his guilty pleas, the parties presented, among other evidence, a report from the office of the Inspector General (report), dated March 4, 2014, describing its comprehensive investigation of the operation and management of the Hinton drug
When a law enforcement agency brought a substance to the Hinton drug lab for analysis, an evidence officer would accept the substance and assign it a sample number, which would be attached to the substance through all of the phases of the testing process. The evidence officer would create a drug receipt, which included the sample number, and would give a copy of the receipt to the law enforcement agency that had requested the analysis. Then, the evidence officer would generate a control card10 and place it, together with the substance, in a manila envelope labeled with the sample number. Eventually, the substance would be assigned to a chemist for analysis.
The special magistrate described the testing process used by the Hinton drug lab as a “two-phase system,” rather than a “two-chemist system.”11 During the preliminary phase, substances submitted by law enforcement agencies for analysis were assigned to
With respect to the confirmatory testing process, the Hinton drug lab generally followed the protocol recommended by the Scientific Working Group for the Analysis of Seized Drugs, which relied on use of a GC-MS machine. The GC-MS room was situated in the middle of the laboratory complex and was accessible by only one door. Each machine was a large, box-shaped piece of equipment with a robotic arm that had a syringe attached to the end of it. Placed inside the GC-MS machine was a carousel which could be loaded with 100 to 120 vials, depending on the size of the machine. When operational, the carousel would move the vials toward the syringe which would puncture the top of each vial to commence the testing process for that sample. After the contents of a vial were analyzed, the GC-MS machine automatically purged the syringe by “spitting” its contents into a waste receptacle and then putting the syringe into a cleaning solution.
The confirmatory phase involved three separate steps - receipt of the samples in the GC-MS room, operation of the GC-MS machine, and analysis of the results from the GC-MS machine to confirm the preliminary identification of the samples. It was common practice at the Hinton drug lab for the setup operator to complete the first two steps, and for the confirmatory chemist,
At the beginning of the confirmatory phase, the setup operator would receive the aliquots from the primary chemist and verify that the number on each vial matched the sample numbers on the accompanying GC-MS control sheet and control card. The setup operator would inspect the vials and document any problems, including signs of contamination. Then, he or she would place the aliquots, along with vials containing standards,14 blanks,15 and a quality control standard mix,16 on the carousel of the GC-MS machine for analysis. The setup operator would complete a “sequence” or “batch” sheet, an internal document that specified the order in which the various vials were arranged on the carousel, and enter the information from the sheet into the GC-MS machine. The setup operator would not open the aliquots.
Before the aliquots could be analyzed, the setup operator was required to confirm that the GC-MS machine was ready for operation. This involved “tuning” the GC-MS machine to ensure
The GC-MS machine would produce reviewable data that the chemists referred to as “documentation.” Once the GC-MS machine had completed its analysis of the aliquots, the confirmatory chemist would check the placement of the vials against the sequence sheet to ensure that they were tested in the correct order. The confirmatory chemist then would analyze the documentation and identify each sample without using the primary chemist‘s notes. This identification would be added to the front of the GC-MS control sheet and the control card. A sample would have to test positive in both the preliminary and confirmatory phases in order to be conclusively identified as the controlled substance at issue. Finally, the primary and confirmatory chemists would sign the drug certificates. If there was an inconsistency between the identification made by the primary chemist and that made by the confirmatory chemist, the samples would be returned to the primary chemist for further analysis or for the preparation of new aliquots.
3. Testing in the defendant‘s case. As to samples 779099, 779110, and 779125, Lawler testified that Daniela Frasca was the primary chemist, Dookhan was the setup operator, and he was the confirmatory chemist. Frasca conducted the bench tests, prepared the aliquots for analysis by the GC-MS machine, and preliminarily identified the three samples as cocaine. Dookhan then placed the assorted vials on the carousel of the GC-MS machine on Friday, October 6, 2006, and entered the sequence of their arrangement into the machine. She initiated the analysis process that morning, it continued throughout the night, and it was finished the following morning, Saturday, October 7. Lawler testified that Dookhan would have been responsible for performing
Lawler testified that although he had some concerns about Dookhan based on her productivity as a primary chemist, he did not have similar concerns regarding her work in the GC-MS room. Lawler stated that confirmatory testing on the GC-MS machine was “very static,” meaning that it was not possible to increase or accelerate the process, and that it did not involve any “creativity.” When asked how a “rogue” person could influence the results of the GC-MS machine, Lawler testified that he did not see how it could be done without detection.
4. Decision of the special magistrate. In a thorough and well-reasoned memorandum of decision denying the defendant‘s motion to withdraw his guilty pleas, the special magistrate pointed out that Scott does not address whether the conclusive presumption of egregious government misconduct is available to a defendant in a case where Dookhan merely was the setup operator and did not sign the drug certificates. The special magistrate found that the roles of setup operator and confirmatory chemist, while overlapping, were not so closely analogous or interchangeable that they should be treated as one, and that the language in Scott clearly limits the conclusive presumption to those cases where Dookhan was the primary or confirmatory chemist. Accordingly, he declined to expand the scope of Scott such that the defendant would be entitled to a conclusive presumption that egregious government misconduct occurred with respect to the analyses of samples 779099, 779110, and 779125.
The special magistrate then considered whether, absent the conclusive presumption, the defendant nonetheless had demonstrated that Dookhan, while acting as the setup operator, had engaged in “particularly pernicious” misconduct, and that such
Finally, with respect to sample 810059, the special magistrate stated that because Dookhan was the confirmatory chemist, the defendant was entitled to the conclusive presumption articulated in Scott that egregious government misconduct occurred with respect to the analysis of this particular sample. However, he concluded that, for essentially the same reasons he already had articulated, the defendant had failed to satisfy his burden of proof under the second prong of the Ferrara-Scott framework. Accordingly, the special magistrate denied the defendant‘s motion to withdraw his guilty pleas.
5. Standard of review. A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to
We stated in Scott, supra at 339-341, 353 n.9, that Dookhan appeared to have engaged in misconduct during the confirmatory phase of the analysis process at the Hinton drug lab. However, the present case is not one in which Dookhan was performing the dual roles of setup operator and confirmatory chemist with respect to samples 779099, 779110, and 779125. Contrary to the defendant‘s assertions, Dookhan‘s work as the setup operator did not involve the “testing” of drugs. Testing was performed first by the primary chemist (Frasca), who completed bench tests and made a preliminary identification of each sample based on her subjective interpretation of the results, and then by the GC-MS machine, which produced documentation that was reviewed and interpreted by the confirmatory chemist (Lawler). Notably, Dookhan did not prepare the aliquots for analysis by the GC-MS machine because that task was the responsibility of Frasca. Dookhan‘s role was simply to receive the aliquots, prepare the GC-MS machine, and initiate the analysis process. Once the analysis process had been completed, Lawler checked the GC-MS machine, verified the proper placement of the vials on the carousel, and reviewed the documentation. If there had been any inconsistency between the identification made by Frasca and that made by Lawler, the samples would have been returned to Frasca for further analysis or for the preparation of new aliquots. In the opinion of Lawler, whom the special magistrate found to be credible, tampering with the GC-MS machine would have been detectable.
Significantly, the office of the Inspector General found no evidence that Dookhan tampered with drug samples that were as- signed
Absent this conclusive presumption, a defendant who moves to withdraw his guilty pleas has the evidentiary burden of establishing, as an initial matter, each element of the first prong of the Ferrara-Scott framework. See Ferrara, 456 F.3d at 290; Scott, 467 Mass. at 346-354. Here, the defendant was required to show that Dookhan engaged in “egregiously impermissible conduct” in his case, and that such misconduct preceded the entry of his guilty pleas.20 Ferrara, supra. See Scott, supra. Based on the report, the timing and the scope of Dookhan‘s misconduct during the confirmatory phase of the analysis process at the Hinton drug lab do not suggest that she engaged in malfeasance with respect to samples 779099, 779110, and 779125, which were analyzed in October, 2006.
First, the report found that around March, 2011, chemist Kate Corbett reported to the supervisor of the GC-MS room that Dookhan had forged her initials on a batch sheet, falsely indicating that Corbett had been the operator of the GC-MS machine for the
As discussed, the analysis of a defendant‘s motion to withdraw a guilty plea under
7. Material influence on the defendant‘s decision to plead guilty. Under the second prong of the Ferrara-Scott framework, the defendant had the burden of particularizing “Dookhan‘s misconduct to his decision to tender a guilty plea.” See Scott, 467 Mass. at 354. That is to say, the defendant had to demonstrate, based on a totality of the circumstances, “a reasonable probability that he would not have pleaded guilty had he known of Dookhan‘s misconduct.” Id. at 355. In reliance on Ferrara, 456 F.3d at 294, this court identified in Scott a number of factors that could be relevant to a defendant‘s showing under this second prong, including “(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea, (2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative, (3) whether the evidence was cumulative of other evidence already in the defendant‘s possession, (4) whether the evidence would have influenced counsel‘s recommendation as to whether to accept a particular plea offer, and (5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement.” Scott, supra at 355-356. Additional factors for consideration under the second prong might include, but are not limited to, “whether the defendant was indicted on additional charges,” id. at 357, as well as “whether the defendant had a substantial ground of defense that would have been pursued at trial,” id. at 356, and whether other special circumstances, such as collateral immigration consequences arising from conviction of a particular crime, were present. Id. at 356
“Ultimately, a defendant‘s decision to tender a guilty plea is a unique, individualized decision, and the relevant factors and their relative weight will differ from one case to the next.” Scott, 467 Mass. at 356. We emphasized in Scott that “the full context of the defendant‘s decision to enter a plea agreement will dictate the assessment of his claim that knowledge of Dookhan‘s misconduct would have influenced the defendant‘s decision to plead guilty.” Id. at 357. “Because a multiplicity of factors may influence a defendant‘s decision to enter a guilty plea, a court attempting to answer this question must use a wide-angled lens.” Ferrara, 456 F.3d at 294.
The defendant contends that the special magistrate erred in concluding that knowledge of Dookhan‘s misconduct likely would not have been material to the defendant‘s decision to plead guilty. The defendant points out that he did not have a prior criminal record, and he contends that he pleaded guilty only because he believed that he had no viable trial strategy in light of the Commonwealth‘s presentation of the drug certificates. The defendant emphasizes that there was no plea bargain in this case because not only did the Commonwealth refuse to dismiss any of the charges against him, but the prosecutor also urged the judge to impose an aggregate sentence of from four to six years in State prison, rather than three years in a house of correction, as the defendant requested. In the defendant‘s view, he did not receive a substantial benefit from pleading guilty. Had he known of Dookhan‘s malfeasance, the defendant continues, he would have had “nothing to lose but everything to gain” by proceeding to trial and challenging the reliability of her work at the Hinton drug lab. We disagree.
Apart from the drug certificates, the evidence against the defendant was strong. Stanton conducted five controlled buys, each of which involved a hand-to-hand exchange of cash for two “twenty” bags or one “forty” bag of an off-white rock-like substance. Not only could a rational jury have inferred that Stanton received what he had requested from the defendant, but field tests conducted on the substances indicated the presumptive presence of cocaine.23 See Commonwealth v. Marte, 84 Mass. App. Ct. 136, 139-142 (2013) (presumptively positive field tests having
Contrary to the defendant‘s argument, he did receive a significant benefit from pleading guilty instead of proceeding to trial. With respect to six counts of distribution of cocaine and possession of cocaine with intent to distribute, the judge sentenced the defendant to concurrent terms of one year in a house of correction. Had the defendant gone to trial, he could have been sentenced to from two and one-half years to ten years in State prison, or from one year to two and one-half years in a house of correction, on each count.
8. Conclusion. The order denying the defendant‘s motion to withdraw his guilty pleas is affirmed.
So ordered.