Commonwealth v. Toussaint

97 Mass.App.Ct. 1118

145 N.E.3d 912 (Table)

COMMONWEALTH

v.Jean G. TOUSSAINT.

19-P-217

Appeals Court of Massachusetts.

Entered: May 19, 2020.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2009, the defendant, Jean Toussaint, was indicted on two charges: trafficking twenty-eight grams or more of cocaine, G. L. c. 94C, § 32E (b ) (2), and doing so in a school zone, G. L. c. 94C, § 32J. On May 25, 2010, he pleaded guilty to a reduced charge of trafficking fourteen to twenty-eight grams of cocaine, G. L. c. 94C, § 32E (b ) (1), and was sentenced to three years to three years and one day in State prison, to be served forthwith. The school zone indictment was dismissed. Once the defendant learned that the primary chemist who signed the drug certificates in his case was Annie Dookhan, whose malfeasance has been well documented by the courts of this Commonwealth, he moved for a new trial in 2018. After an evidentiary hearing, a judge denied the motion. The defendant appeals, arguing that the evidence established a reasonable probability that he would not have entered the same guilty plea had he known about Dookhan's misconduct. We affirm.

Background. We recite the relevant facts as found by the judge, supplemented by undisputed evidence in the record. Police observed the defendant and his codefendant standing outside an apartment building as to which the police had received a prior complaint about young men trespassing. As police approached the two, the defendant began "frantically buzzing" doorbells and pulling on the building door until it opened. Police followed them inside and confronted the defendant as he tried to enter an apartment. He was holding a box of sandwich bags. Once it was determined that the defendant did not know the resident of the apartment, he was arrested for trespassing and was brought to the police station, where he was placed in a holding cell.

Subsequently, one of the officers noticed a partially-eaten sandwich on the floor of the holding cell, inside of which he found a large yellow rock resembling "crack" cocaine. According to the police report, the officer then asked the defendant if he had "any more crack on him"; the defendant replied, "Yes," and produced three "large yellow rocks" from inside the back of his pants.² Police weighed the substances, finding that the rock from the sandwich weighed thirty-one grams and the rocks from the defendant's pants weighed thirty-five grams. They were then sent to the Hinton Drug Laboratory, where Dookhan signed the drug certificates as the primary chemist.

After the defendant's motions to suppress and dismiss were denied, the case was scheduled for trial on May 25, 2010. The Commonwealth listed Dookhan as an expert witness and the only chemist who would testify. However, on the day set for trial, the defendant entered a guilty plea with an agreed-upon disposition.

Relevant to that disposition was the fact that, twelve days earlier, based on the indictments in this case, the defendant's probation had been revoked in a separate Boston Municipal Court (BMC) drug case, and he had been ordered to serve his previously suspended two-year sentence imposed after his guilty plea in that case. As part of his plea agreement in the current case, the defendant received a sentence of three years to three years and one day, ordered to run forthwith, i.e., notwithstanding the sentence in the BMC case. See G. L. c. 279, § 27 ; Dale v. Commissioner of Correction, 17 Mass. App. Ct. 247, 249-251 (1983). Thus, one benefit of the plea agreement at issue here was that the defendant avoided serving nearly two years of prison time for the BMC case. Notably, that case also involved Dookhan as the primary chemist; the BMC conviction was later vacated and the case dismissed with prejudice in April 2017.

At the evidentiary hearing on the motion for new trial in this case, the defendant testified that his main incentives for the plea were that he would not do any more prison time in the BMC case, and that he would not stop getting credit for time on this case. He also acknowledged that he "got a better deal" by "avoid[ing] the minimum mandatories" in this case, which at the time of the offenses were seven and one-half years in total. See the 2008 versions of G. L. c. 94C, § 32E (b ) (2) (five-year minimum mandatory sentence), and G. L. c. 94C, § 32J (two and one-half year minimum mandatory sentence, consecutive to sentence on underlying drug crime).

Additionally, the defendant testified that had he known about Dookhan's misconduct at the time of his plea in this case, he would not have accepted the plea offer and instead would have wanted his attorney both to file further motions in this case, and to file further motions to stay his sentence in, and attack the basis of, the BMC case. In plea counsel's affidavit submitted in support of the defendant's motion for new trial, counsel stated that had he "known about Dookhan's misconduct at the time of the plea in the instant case, [he] would not have advised [the defendant] to plead guilty to the charges on May 25, 2010." "Similarly, [he] would have challenged the validity of the testing in [the BMC case] and [he] would have moved to vacate that conviction rather than recommend that [the defendant] accept the violation of probation and its sentence."

Discussion. 1. Governing standards. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim P. 30 (b)." Commonwealth v. Resende, 475 Mass. 1, 12 (2016). "A motion for a new trial is ... committed to the sound discretion of the judge." Id., quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Therefore, we review "to determine whether the judge abused that discretion or committed a significant error of law." Resende, supra, quoting Scott, supra. On factual issues, because the motion judge was not the plea judge, we are "in as good a position as the motion judge to assess" the record, and defer only on matters of credibility. Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

Under the framework for evaluating motions to withdraw guilty pleas based on Dookhan's misconduct, our focus in this case is the second prong of the Ferrara ³ analysis. See Scott, 467 Mass. at 354-355. "[T]he defendant must demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. The defendant also must demonstrate that it would have been rational not to plead guilty. See id. at 356. In Scott, the Supreme Judicial Court identified a nonexhaustive list of factors that may be relevant to the reasonable probability test, but emphasized that this is a "totality of the circumstances" determination. Id. at 358. "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." Id. at 356. "The reasonable probability analysis must be based on the actual facts and circumstances surrounding the defendant's decision at the time of the guilty plea in light of the one hypothetical question of what the defendant reasonably may have done if he had known of Dookhan's misconduct." Id. at 357.

2. Scott factors. The defendant argues that the judge abused his discretion by limiting his focus to three Scott factors and that he erred in analyzing those factors. We are not persuaded.

a. Strength of the Commonwealth's case. First, the defendant argues that the judge, in concluding that the Commonwealth's trafficking case was strong, overlooked the difficulty of proving beyond a reasonable doubt the identity of the two substances as cocaine. See Commonwealth v. Francis, 474 Mass. 816, 828 (2016). However, "[p]roof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence." Commonwealth v. Dawson, 399 Mass. 465, 467 (1987).

Here, the circumstantial evidence included the sandwich bags initially found on the defendant, the consciousness of guilt evidence from his initial encounter with police, the officer's discovery of a large yellow rock in the defendant's holding cell, and the officer's query whether the defendant had "any more crack on him," to which the defendant said, "Yes," and then pulled three large yellow rocks out of his pants. Compare Commonwealth v. Marte, 84 Mass. App. Ct. 136, 144 (2013) (circumstantial evidence insufficient to prove identity of substance where, among other things, defendant made no "incriminatory admission[s] about" substance). The judge did not err or abuse his discretion in concluding that the Commonwealth's case was strong.

b. Plea benefit versus exculpatory value of Dookhan's misconduct. The defendant next argues that the judge erred in concluding that the benefit of the plea agreement clearly outweighed the exculpatory value of Dookhan's misconduct. The defendant argues that, had he known of the misconduct, he would have pursued dismissal of the charges, sought a better plea agreement, and "may have gone to trial." We see no error. The defendant benefited considerably from the plea agreement, as he was able to avoid minimum mandatory sentences totaling seven and one-half years as well as having his sentence run forthwith, effectively negating the two-year sentence in the BMC case. The defendant's three-year sentence was less than half of the total minimum mandatory sentence he could have received in this case, see Commonwealth v. Antone, 90 Mass. App. Ct. 810, 818-819 (2017), and less than a third of the nine and one-half years he faced in the aggregate.

As for the exculpatory value of Dookhan's misconduct, the defendant and plea counsel assert that knowledge of the misconduct would have caused the defendant, on counsel's advice, not to accept the plea offer on May 25, 2010. Be that as it may, it was within the judge's discretion to consider plea counsel's proposed...