Commonwealth v. Resende

475 Mass. 1

54 N.E.3d 521

COMMONWEALTH

v.Admilson RESENDE.

SJC–11981.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued April 4, 2016.

Decided July 25, 2016.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Laurie Yeshulas, Assistant District Attorney (Lisa J. Jacobs, Assistant District Attorney, with her) for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

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), G.L. c. 94C, § 32A (c ) (five counts); violation of the controlled substances laws in proximity to a school or park, G.L. c. 94C, § 32J (three counts); and possession of a class B controlled substance (cocaine) with intent to distribute, G.L. c. 94C, § 32A (c ) (one count).¹ He completed service of his sentences.² On October 2, 2012, the defendant filed in the Superior Court a motion to withdraw his guilty pleas pursuant to Mass. R.Crim. P. 30, as appearing in 435 Mass. 1501 (2001), based on Dookhan's malfeasance.

Prior to the issuance of a ruling on the defendant's motion, this court decided Commonwealth v. Scott, 467 Mass. 336, 5 N.E.3d 530 (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, 5 N.E.3d 530. 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, 5 N.E.3d 530. 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, 5 N.E.3d 530. 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, 5 N.E.3d 530. 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, 5 N.E.3d 530. 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, 5 N.E.3d 530. 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, 5 N.E.3d 530. A successful showing on this second prong of the Ferrara -Scott framework would warrant an order granting the defendant's motion to withdraw a guilty plea.

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,³ 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, 5 N.E.3d 530, 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 Mass. R.Crim. P. 47, 378 Mass. 923 (1979), denied the defendant's motion to withdraw his guilty pleas. See Commonwealth v. Charles, 466 Mass. 63, 89–90, 992 N.E.2d 999 (2013) (describing authority of special magistrate to conduct guilty plea colloquies in Hinton drug lab sessions). The defendant appealed the special magistrate's proposed order dated May 12, 2014, to the Regional Administrative Justice of the Superior Court, who denied the defendant's appeal and affirmed the decision of the special magistrate. See id. at 66, 90–91, 992 N.E.2d 999. The defendant filed a timely notice of appeal in the Appeals Court, and we subsequently granted his application for direct appellate review. For the reasons that follow, we conclude that the defendant was not entitled to the conclusive presumption that egregious government misconduct occurred in his case, and that his motion to withdraw his guilty pleas was properly denied.⁴

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 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 present appeal, three of the drug certificates, stating that the substances seized from the defendant contained cocaine as defined in G.L. c. 94C, § 31, were signed on the line labeled “Assistant Analysts” by Daniela Frasca and Michael Lawler. However, as will be explained in greater detail infra, Dookhan was the so-called “setup operator” for the substances (samples 779099, 779110, and 779125) that were analyzed to generate these certificates. A fourth drug certificate, stating that the substance (sample 810059) seized from the defendant contained cocaine as defined in G.L. c. 94C, § 31, was signed on the line labeled “Assistant Analysts” by Frasca and Dookhan.⁵

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.”⁶ See Scott, 467 Mass. at 339–340, 5 N.E.3d 530. It appeared that “the motive for her wrongdoing was in large part a desire to increase her apparent productivity.” Id. at 341, 5 N.E.3d 530. 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, 5 N.E.3d 530. 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 lab from 2002 to 2012.⁷ In addition, the defendant presented the testimony of Michael Lawler, the confirmatory chemist for samples 779099, 779110, and 779125, with respect...