Commonwealth v. Baez

COMMONWEALTH v. Emmanuel BAEZ.

Criminal Action Nos. 2010-075-001, 2010-075-002.

Superior Court of Massachusetts, Essex

July 1, 2013

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL

DAVID A. LOWY, Justice.

On May 9, 2011, the defendant, Emmanuel Baez (" Mr.Baez") pleaded guilty to trafficking cocaine in an amount of fourteen grams or more, G.L. c. 94C, § 32E(b), and possession of a class B substance with intent to distribute, G.L. c 94C, § 32A(a). Before the Court is the defendant's motion to withdraw guilty plea.^[1] The Motion cites as grounds: (1) the recently discovered misconduct of Annie Dookhan (" Ms.Dookhan"), ^[2] a chemist at the William A. Hinton State Laboratory in Jamaica Plain (" the Lab") whose initials appear on paperwork for one of the drug samples associated with Mr. Baez's case; and (2) alleged mismanagement and other problems at the Lab. ^[3] At a hearing held on May 23, 2013, the Court accepted stipulated exhibits and heard testimony of the Commonwealth's witness, Della Saunders (" Ms.Saunders").

Upon review of the record, the hearing transcript, and the parties' oral arguments, the motion is DENIED.

BACKGROUND

The following facts are taken from the record. Further facts are reserved for discussion.

I. The Underlying Charges

The pending indictments followed the execution of a search warrant at 8 Pickman Road in Salem, Massachusetts (" House") on November 24, 2009. (See Ex. 21; Def.'s Mot. Ex. 2.).

After obtaining the search warrant, Detective Eric Connolly (" Detective Connolly") and other members of the Salem Police Department (collectively " officers or police") set up surveillance near the House to monitor activity in the area and determine whether Mr. Baez was in the House. (Ex. 21 at 2). Detective Gaudet observed Mr. Baez leave the House, and Detectives Doyle and Brennan approached him and identified themselves as police. (Ex. 21 at 2). Mr. Baez turned away from the detectives in an attempt to flee and struggled when the detectives tried to stop him. (Ex. 21 at 2). During the struggle, Mr. Baez placed an object into his mouth. (Ex. 21 at 2). The detectives and other assisting officers tried to remove the item, but Mr. Baez refused to comply with commands to stop resisting and to spit out the item. (Ex. 21 at 2). Sergeant Hanson then sprayed Mr. Baez with pepper spray, causing him to spit out a large plastic bag containing a white chunk believed to be cocaine. (Ex. 21 at 2). The police seized the bag of suspected cocaine, and later sent it to the Lab for testing. (Ex. 1B; Ex. 20; Ex. 21 at 2-3). The police also seized other items from Mr. Baez, including: two cell phones; a wallet with identification; and forty-seven dollars in cash. (Ex. 21 at 2-3).

The detectives then went to the House to execute the search warrant. (Ex. 21 at 3). Detective Connolly knocked on the front door, and the homeowner, Joseph Lafaso answered the door. (Ex. 21 at 3). The police secured Mr. Lafaso in the living room, and began their search. (Ex. 21 at 3). Lieutenant Thomas Cote, of the Essex County Sheriff Department K9 Unit, joined the search with the assistance of a drug-sniffing dog. (Ex. 21 at 3). The dog alerted that narcotics were present in Mr. Baez's bedroom closet. (Ex. 21 at 3). The detectives searched the closet and found nine small white pills in a plastic zip lock bag, and two black boxes. (Ex. 21 at 3) One of the boxes contained $1, 206 in cash, and the other contained six plastic twists of a white powdery substance believed to be cocaine. (Ex. 21 at 3).

Detectives found the following items in Mr. Baez's bedroom: drug records and/or numbers (Def.'s Mot. Ex. 2); two cell phones; personal papers in Mr. Baez's name; approximately $100 in change; assorted men's and women's gold jewelry; and one replica Air Soft Smith & Wesson M & P .40 caliber handgun without a red plastic tip. (Ex. 21 at 3). Mr. Lafaso confirmed that the bedroom where those items were found belonged to Mr. Baez, and that Mr. Baez frequently came and went at all hours of the night. (Ex. 21 at 3).

Under Mr. Lafaso's bed, the police found a Mossberg Model 9200 twelve-gauge shotgun, and a Ruger rifle .44 mag. with assorted ammunition. (Ex. 21 at 3). In the basement, the police found items used in street level distribution of cocaine, including cutting agents and packaging materials such as cut and uncut plastic bags and razor blades. (Ex. 21 at 3; Def.'s Mot. Ex. 2). The police seized the above items from the House, and later submitted the six twists of suspected cocaine to the Lab. (Ex. 1A; Ex. 21 at 2).

A grand jury indicted Mr. Baez on November 24, 2009 for: (1) trafficking in cocaine in an amount of twenty-eight grams or more, G .L. c. 94C, § 32E(b), (indictment 2010-075-001); and (2) possession of a Class B substance (cocaine), G.L. c. 94C, § 32A(a), (indictment 2010-075-002). (Dkt.1-2). ^[4] Pursuant to a negotiated plea agreement with the Commonwealth, Mr. Baez pleaded guilty to indictment 2010-075-002 as charged. (Dkt.# 24-26). As part of the plea, the Commonwealth entered a partial nolle prosequi to so much of indictment 2010-075-001 as alleged trafficking over fourteen grams, (Dkt. # 1), and Mr. Baez pleaded guilty to the reduced charge of trafficking cocaine in an amount of fourteen grams or more G.L. c. 94C, § 32E(b). (Dkt.# 24-26). Mr. Baez received a sentence of three years to three years and a day on the trafficking charge and a concurrent sentence of three years to three years and a day on the possession charge. (Dkt.26-27).

II. Drug Testing Procedures at the Drug Lab

At the hearing, the Court heard the testimony of Ms. Saunders, who tested the substances in Mr. Baez's case as the confirmatory chemist. (See Ex. 1A; Ex. 1B). Ms. Saunders worked at the Lab for twenty-seven years, and was a Chemist III at the Lab in December 2009 and February 2010, when the suspected drugs in Mr. Baez's case were tested. (Hr'g Tr. 31:21-24, 8:23-9:9; Ex. 1A; Ex. 1B). As a Chemist III, Ms. Saunders had a variety of different responsibilities, including those of a primary chemist, a confirmatory chemist, and an evidence officer. (Hr'g Tr. 9:2-11). Her testimony, which the Court credits, revealed the following facts concerning the procedures the Lab followed in handling and testing drug samples, as well as the roles of evidence officers, primary chemists, gas chromatogram mass spectrometer (" GC/MS") GC/MS operators (hereinafter " GC/MS operators"), and confirmatory chemists:

A. The Evidence Officer

Law enforcement agencies submit substances to be tested to the Lab's evidence office. (Hr'g Tr. 11:25-12:5). The submission is also accompanied by a drug receipt. (Hr'g Tr. 12:5-10). The drug receipt contains information such as: the name of the submitting agency, city or town; the name of the submitting officer; and a description of the substance submitted. (Hr'g Tr. 12:7-10).

The evidence officer who receives the sample assigns it a unique a lab number, and initials and dates the drug receipt. (Hr'g Tr. 12:17-19). The evidence officer then enters the information on the drug receipt into a computer, which generates an evidence control card. (Hr'g Tr. 12:20-22). The evidence control card (" control card") contains information such as: the specific sample(s) submitted and its gross weight; how the sample was submitted (e.g., in a paper bag or plastic bag); the number of samples submitted; the name of the submitting agency and submitting officer; the date of the submission; and the lab number. (Hr'g Tr. 12:20-25; 13:2-6). The evidence officer then places the submitted sample and the control card into a manila envelope, which is kept in the evidence safe until the sample is assigned to a primary chemist. (Hr'g Tr. 13:9-12). Primary chemists inform the evidence officer when they are available to take on work. (Hr'g Tr. 9:16-22). The evidence officer then assigns samples to a primary chemist for preliminary testing. (Hr'g Tr. 9:16-22).

B. Preliminary Testing Procedures— The Primary Chemist

The primary chemist signs out the sample and the control card, and keeps them in a locker that can only be accessed by that particular primary chemist and the lab supervisor. (Hr'g Tr. 9:16-23; 13:9-15). The primary chemist weighs and performs preliminary tests (e.g., color tests or instrumental tests) on the substance. (Hr'g Tr. 9:22-24). She then records her initials, preliminary findings, the net weight of the sample, and other relevant information on the control card. (Hr'g Tr. 14:8-11).

The primary chemist then prepares a small sample of the substance for confirmatory testing. (Hr'g Tr. 9:24-25; 10:1-10). First, the primary chemist puts an aliquot, or small amount, of the sample into a small glass vial and fills it with methanol, a reagent. (Hr'g Tr. 10:4-10). She then seals the top of the vial with crimpers, which are made of hard rubber.^[5] (Hr'g Tr. 10:6; 47:21-48:1). After marking the vial with the lab number, the primary chemist submits the vial, the control card, and a mass spec control sheet to the GC/MS section of the Lab (" GC/MS lab") for confirmatory testing. (Hr'g Tr. 10:7-10). The rest of the sample (hereinafter referred to as " the bulk sample"), the portion that the primary chemist did not place into the vial, remains in the custody of the primary chemist for the remainder of the testing process. (Hr'g Tr. 10:16-22).

C. Confirmatory Testing Procedures— The GC/MS Machine, Confirmatory Chemists/GC/MS operators, and Confirmatory Testing

1. The GC/MS Machine

The GC/MS, a machine located in the GC/MS lab, is used to confirm the test results of the primary chemists. (Hr'g Tr 10:15). The GC/MS is capable of holding up to one hundred vials and consists of two sections: the gas chromatogram section (" the GC"); and the mass...