Commonwealth v. Antone

90 Mass.App.Ct. 810

67 N.E.3d 718

COMMONWEALTH

v.Danny ANTONE.

No. 14–P–1802.

Appeals Court of Massachusetts, Bristol.

Argued Feb. 5, 2016.

Decided Jan. 4, 2017.

Sharon L. Sullivan–Puccini, Somerst, for the defendant.

David A. Wittenberg, Assistant District Attorney, for the Commonwealth.

Present: GREEN, HANLON, & HENRY, JJ.

HENRY, J.

The defendant, Danny Antone, appeals from an order denying his motion to vacate his guilty plea to the offense of trafficking in cocaine (one hundred grams or more), G.L. c. 94C, § 32E(b )(3). His motion arises from the misconduct of Annie Dookhan, a chemist who was employed at the William A. Hinton State Laboratory Institute (Hinton lab or lab). See Commonwealth v. Scott, 467 Mass. 336, 337–342, 349–350, 5 N.E.3d 530 (2014) (describing Dookhan's misconduct). On appeal, the defendant argues that his motion should have been allowed because (1) there was a reasonable probability that he would not have pleaded guilty if he had known of Dookhan's misconduct, (2) the Commonwealth failed to provide exculpatory evidence concerning Dookhan's misconduct, and (3) Dookhan's misconduct constitutes newly discovered evidence. We affirm.

Background. 1. Facts pertaining to plea.¹ As the result of information provided by a confidential informant (CI) in the summer of 2010, the New Bedford police began to conduct surveillance of the defendant. On one occasion they observed him make a variety of maneuvers while driving his vehicle that were consistent with someone conducting "counter surveillance." The police arranged for the CI to make two controlled purchases of cocaine from the defendant.² The police field test of the substance in each controlled purchase was positive for cocaine.

Based on this information, the police obtained search warrants on August 13, 2010, for the defendant's home and vehicle. In preparation for execution of the warrants, the police began surveillance of the defendant's home on August 18, 2010. At approximately 9:00 P.M. , they observed him depart in his vehicle. The police followed and eventually stopped the defendant's vehicle. Detective Justin Kagan approached the vehicle on foot and observed that the defendant had locked his doors and was drinking from a plastic water bottle. Detective Evan Bielski, who also was present, stated that, based on his training and experience, the defendant's conduct was consistent with swallowing drugs. When the defendant refused the detectives' requests to open the door, the detectives broke one of the windows. After a brief struggle, the defendant was taken into custody.

The police took the defendant back to his home, which was within one thousand feet of a public school, and showed him copies of the search warrants. Bielski noticed newly installed steel doors at the home. Although initially uncooperative, the defendant eventually agreed to disclose the location of the "drugs." He led the police into a bedroom and indicated that the drugs were in a tote bag. Inside the tote bag, Detective Haggerty discovered four plastic bags containing a substance that Bielski, based on his training and experience, believed to be cocaine. These bags, which were weighed at the police station, had a combined weight well over 200 grams. Detective Gracia found a fifth plastic bag containing a small amount of a substance that Bielski similarly identified as cocaine. Also recovered during the search of the home was cash in the amount of $220 (ninety dollars of which was in nine rolls of ten one dollar bills), three pairs of binoculars, scales, packaging materials, cutting agents, a cellular telephone, and cocaine cooking materials, including metal strainers, a hot plate with a pot of water on it, and four glass tubes. All of the cooking and packaging materials were set up in a storage room. According to Bielski, the room dedicated to cooking and processing the cocaine in combination with the cocaine and cutting agents, both of which Bielski identified, indicated that the defendant was engaged in cocaine distribution and sale, rather than personal use. Bielski also stated that the binoculars were significant because they were counter-surveillance equipment.

The five plastic bags containing substances that Bielski identified as cocaine were sent to the Hinton Lab for analysis. The lab issued four certificates; one certificate was issued for two of the bags. Each certificate is signed by Della Saunders as the primary chemist and Dookhan as the confirmatory chemist and is dated September 8, 2010. Each certificate identifies the substance in each bag as one containing cocaine, as defined in G.L. c. 94C, § 31, and lists the weight of the substances. The aggregate weight of the substances is 266.88 grams. Both Saunders and Dookhan were listed as expert witnesses for the Commonwealth in a joint pretrial memorandum.

At the defendant's plea hearing on April 25, 2012, the judge was informed by the parties that the defendant had agreed to plead guilty in exchange for the reduction of the charge of trafficking in 200 or more grams of cocaine to trafficking in 100 or more grams of cocaine, a sentencing recommendation of from ten to twelve years in State prison, and the entry of a nolle prosequi on the habitual offender and school zone charges. The agreement eliminated the risk that the defendant, who was fifty-seven years old, would face a minimum mandatory twenty-two year sentence.³ The judge accepted the defendant's guilty plea to the reduced charge and imposed the recommended sentence. The Commonwealth nol prossed the two remaining charges.

2. Motion to vacate plea. About six months after the defendant's plea, in light of the issues that surfaced at the Hinton lab, the defendant moved to withdraw his guilty plea. After a hearing at which exhibits were introduced, a special judicial magistrate, who had been assigned to preside over criminal cases related to Dookhan's misconduct, issued findings, rulings, and a proposed order denying the defendant's motion.

The magistrate applied the two-prong test set forth in Commonwealth v. Scott, 467 Mass. at 346–358, 5 N.E.3d 530 (Ferrara–Scott test).

As to the first prong, the magistrate found that the defendant was entitled to a conclusive presumption that egregious government misconduct occurred in his case because he had "furnished drug analysis certificates bearing Annie Dookhan's signature on the line labeled ‘Assistant Analyst.’ "

As to the second prong, the magistrate concluded that the defendant "fail[ed] to demonstrate a reasonable probability that, had he known of Dookhan's misconduct, he would have rejected the plea deal and proceeded to trial." The magistrate rested this conclusion on her findings that "the presence of strong circumstantial evidence of drug distribution, including distribution materials, [the defendant's] evasive behavior, and [the defendant's] personal knowledge as to the location of the cocaine in the target residence, diminishe [d] the materiality of the drug certificates" and that the plea deal considerably reduced the defendant's exposure to committed time. Given the "appreciable benefits of the plea deal" and "the strong circumstantial evidence underlying the charges," the magistrate was "not convinced that a reasonable defendant in [the defendant's] shoes would have rejected the deal had information of Dookhan's malfeasance been available." The magistrate therefore recommended that the defendant's motion be denied.

The defendant filed an objection to the magistrate's findings, rulings, and proposed order. See Commonwealth v. Charles, 466 Mass. at 71 & n. 9, 992 N.E.2d 999 (describing review procedure). The regional administrative justice (motion judge) adopted the magistrate's findings and rulings and denied the defendant's motion, adding as a basis for the denial that Dookhan was not the primary chemist.⁴ This appeal followed.

Discussion. 1. Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009). The disposition of such a motion is "committed to the sound discretion of the judge." Scott, supra at 344, 5 N.E.3d 530.

"[T]he judge's findings of fact are to be accepted if supported by the evidence." Ibid. "We review an order [on] a new trial motion to determine if the judge committed a significant error of law or other abuse of discretion." Ibid. (quotation omitted). Here, because the motion judge adopted the magistrate's findings and rulings, we apply the same standard of review to them. Commonwealth v. Williams, 89 Mass.App.Ct. 383, 388, 50 N.E.3d 206 (2016). As the motion judge also was the plea judge, "[w]e grant substantial deference to [her] decision." Commonwealth v. Sylvain, 473 Mass. 832, 835, 46 N.E.3d 551 (2016) (quotations omitted).

2. Ferrara–Scott test. Relying on Ferrara v. United States, 456 F.3d 278, 290–297 (1st Cir.2006), the Supreme Judicial Court articulated a two-prong test for analyzing a defendant's motion to withdraw a guilty plea in cases involving Dookhan's misconduct at the Hinton lab. See Scott, 467 Mass. at 346–358, 5 N.E.3d 530. See also Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 467 n. 6, 30 N.E.3d 806 (2015).

Under the first prong, a defendant must show egregious misconduct by the government that preceded the entry of the defendant's guilty plea and where, as here, Dookhan signed the certificates as an assistant analyst before the defendant entered his plea, Scott provides that such misconduct is conclusively presumed.⁵ Scott, supra at 347, 351–352, 5 N.E.3d 530. See Commonwealth v. Ruffin, 475 Mass. 1003, 1004, 55 N.E.3d 960 (2016) ( "Underlying [the conclusive presumption established in Scott ] is the assumption that the misconduct evidenced by the certificate antedated the guilty plea").

Under the second prong, the defendant "must demonstrate a reasonable probability that he...