Commonwealth v. Harris

93 Mass.App.Ct. 1104

103 N.E.3d 769 (Table)

COMMONWEALTH

v.Tony D. HARRIS.

17–P–464

Appeals Court of Massachusetts.

Entered: April 4, 2018

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Five years after pleading guilty to drug and firearms offenses in the District Court, the defendant filed a motion for new trial (once amended) seeking to vacate his guilty pleas after learning of the misconduct of Annie Dookhan, the chemist who performed the confirmatory tests on the cocaine in his case.² Following a hearing, the judge denied the amended motion, adopting the Commonwealth's argument that the defendant had failed to meet his burden of proof. On appeal the defendant claims that the judge abused her discretion because (1) there was a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct, and (2) the judge applied the wrong burden of proof. We affirm.

Background. After fleeing from police officers, the defendant was arrested in possession of a firearm, cocaine, and marijuana. The suspected controlled substances were sent to the Hinton lab for testing and Dookhan performed the secondary test on the suspected cocaine, confirming that the substance tested positive for the presence of cocaine. Dookhan did not test the seized marijuana.

Thereafter, the defendant entered into a global plea agreement with the Commonwealth in this case and two unrelated Superior Court cases. Pursuant to that plea agreement and a joint sentencing recommendation, the defendant pleaded guilty to (and was sentenced on) the following counts in the District Court: (1) carrying a loaded firearm without a license (twelve months, from and after the sentence on count five);³ (3) possession with intent to distribute marijuana (six months); (4) resisting arrest (six months); (5) carrying a firearm without a license (eighteen months); (6) possession of cocaine with intent to distribute (six months); and (7) committing a drug violation in a school zone (two years from and after the sentences imposed on counts three and six).⁴ All of the District Court sentences were ordered to run concurrently with State prison sentences imposed in the first Superior Court case (the 2007 case), in which the defendant received an aggregate committed sentence of five years to five years and one day on charges including armed assault with intent to murder and assault and battery by means of a dangerous weapon.⁵ In the second Superior Court prosecution (the 2008 case) the defendant pleaded guilty to (and was sentenced on) possession of cocaine with intent to distribute (one year and one day), and possession of marijuana with intent to distribute (one year concurrent).⁶

Discussion. We review a defendant's motion to withdraw his guilty pleas as a motion for new trial. Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We evaluate the judge's decision to deny the motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

To prevail on a motion to withdraw his guilty pleas, a defendant is required to establish (1) that there was egregious government misconduct in his case, (2) which had materially influenced his decision to plead guilty. Commonwealth v. Scott, 467 Mass. 336, 347–358 (2014). As the Commonwealth concedes, here Dookhan's participation in the analysis of the seized substance was sufficient to establish a conclusive presumption of egregious government misconduct. Id. at 354. However, after considering the totality of the circumstances, the judge concluded that the defendant failed to satisfy the second prong of Scott. That is, the defendant failed to "demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. at 355. We discern no abuse of discretion in this conclusion.

In Scott, the Supreme Judicial Court recognized that "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." Id. at 356. Among the factors a motion judge should consider are whether evidence of the misconduct could have detracted from the factual basis supporting the guilty plea, and whether the value of the evidence was outweighed by the benefit the defendant received from the plea agreement. Id. at 355–356.

We agree with the Commonwealth that, in this case, the evidence against the defendant was strong. The firearm, cocaine, and marijuana were all seized by the police from the defendant's person. Dookhan had no involvement in the charges related to the firearm and the marijuana. The marijuana charge would have served as a predicate for the school zone charge had the case proceeded to trial. Thus, Dookhan's misconduct would not have affected the strength of the evidence on those charges.⁷

Moreover, there was other evidence of the nature of the white powder in the defendant's possession. In addition to the physical examination of the substance by experienced officers, the Commonwealth's evidence included a positive test by the primary chemist. See Commonwealth v. Antone, 90 Mass. App. Ct. 810, 817 (2017) (defendant had to consider that primary test may be admitted in evidence even though confirmatory test by Dookhan inadmissible). There was also evidence of a positive field test by the police before the evidence was submitted to the laboratory.⁸ Although not conclusive that the white powder seized from the defendant was, in fact, cocaine, "a presumptively positive field test, with proper foundation, may be of persuasive weight" to a fact finder. Commonwealth v. Marte, 84 Mass. App. Ct. 136, 141–142 (2013). Thus, independent of Dookhan's confirmatory test, there was evidence which, if admitted, would support a conclusion that the substance possessed by the defendant was cocaine.

Even assuming that Dookhan's misconduct would have provided a substantial ground of defense on the cocaine charge in the District Court, it would not have affected the more serious charges, including armed assault with intent to murder, pending in the 2007 case in Superior Court. On that charge, the defendant faced a maximum sentence of twenty years' imprisonment and a minimum mandatory sentence of five years. G. L. c. 265, § 18(b ). In light of the defendant's lengthy criminal history, it was reasonable to anticipate that a conviction at trial would result in a sentence that far exceeded the five-year mandatory minimum. The defendant would also have been aware that convictions after trials in the District Court and Superior Court prosecutions could result in...