Opinion
14-P-1139
08-13-2015
COMMONWEALTH v. DANIEL FRANCIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Daniel Francis, of trafficking in twenty-eight grams or more of cocaine in violation of G. L. c. 94C, § 32E(b), and distribution of cocaine in violation of G. L. c. 94C, § 32A(c). The defendant appeals from the denial of his second motion for a new trial, asserting that two circumstances -- (1) the newly discovered evidence of State chemist Annie Dookhan's misconduct of tampering with drug certificates, and (2) the prosecutor's failure to disclose exculpatory evidence of Dookhan's misconduct -- cast real doubt on the justice of his convictions.
As amended through St. 1992, c. 396.
Upon review of the briefs and record, it has not been made to appear that the judge abused his discretion or otherwise erred in denying the defendant's second motion for a new trial. Nor do we discern a substantial risk of a miscarriage of justice.
1. Background. We rehearse the relevant evidence adduced at trial. In late November, 2005, in the Forest Hills area of Jamaica Plain, Officer Miskell witnessed a man enter a parked black Nissan Maxima automobile; the defendant was in the driver's seat. The man exited the car, and Officer Celester and Detective Blocker observed him place a plastic bag containing what appeared to be crack cocaine inside his mouth. Detective Blocker subsequently placed the man under arrest. Officer Miskell followed the defendant's car, pulled him over, and placed him under arrest. At the time, the defendant was found to have $360 in his possession, and another $579 were recovered from his person during the booking process.
The man, one Marcus Henderson, admitted to police that he got the cocaine "from the guy in the black car."
At the police station, Sergeant Detective William Feeney searched the defendant's car; he found a can of "Gunk Fix-a-Flat" with a removable bottom containing two bags, each containing smaller plastic bags of crack cocaine. During questioning following his arrest, the defendant, after receiving Miranda warnings, voluntarily stated to Officer Kenneth Reid that he had been selling approximately one-quarter to one-half of a kilogram of cocaine every week and one-half. The defendant followed this admission by stating that his supplier was a white male from the north shore area. The defendant then agreed to set up a sting operation in order to apprehend the supplier. The operation did not materialize.
On January 20, 2006, chemists Annie Dookhan and Michael Lawler, working under the aegis of the Department of Public Health, analyzed the contents of the two bags found in the car and the bag obtained from the man's mouth. Two certificates pertaining to the bags found in the car indicated that the substance within those bags was cocaine weighing 19.66 and 19.04 grams, respectively. The drug analysis certificate for the third bag, taken from the man's mouth, indicated that the substance was cocaine weighing 1.34 grams. All three certificates were signed by Dookhan and Lawler as "Assistant Analysts."
2. Discussion. We review a motion judge's decision to allow or deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion. . . . A reviewing court extends special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In this case, the motion judge, who was also the trial judge, ruled that the evidence of Dookhan's misconduct (1) was speculative as to whether it applied to the drug samples in this case, (2) did not cast doubt on the convictions because the defendant admitted to police to selling one-quarter to one-half of a kilogram of cocaine per week and testified that the substance Henderson possessed was cocaine, and (3) was not evidence in the possession, custody, or control of the prosecutor.
Chemist Annie Dookhan was employed as a drug analyst by the Department of Public Health from 2004 to 2012. See Office of Inspector General, Investigation of the Drug Laboratory at the William A. Hinton State Laboratory Institute 2002-2012, at 5, 63 (2014). She tested a suspiciously high number of drug samples for the entirety of her employment. Id. at 63-64. She admitted to tampering with samples by identifying substances based only on appearance, failing to comply with quality control procedures, forging the initials of other chemists, and adding narcotics to samples that originally tested as negative. Id. at 5, 63-78. See Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014).
In Commonwealth v. Scott, 467 Mass. 336, 352-354 (2014), the Supreme Judicial Court held that a defendant seeking to vacate a guilty plea who produces a relevant drug certificate that was signed by Dookhan on the line labeled "Assistant Analyst" is entitled to a conclusive presumption that egregious government misconduct occurred. In Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 571-573 (2014), we extended the same conclusive presumption to a defendant convicted by jury who was seeking a new trial based on the same claims before us now. Assuming without deciding that Gaston applies in this case, in which the challenged drug testing occurred in January of 2006, our focus is on whether the defendant has demonstrated prejudice or materiality. Id. at 573, citing Scott, supra at 360.
Gaston had not yet been decided when the judge made his order in the instant case.
A. Newly discovered evidence. "To prevail on a new trial motion based on allegedly newly discovered evidence, a defendant must establish that the evidence is in fact newly discovered, is both credible and material, and that it casts real doubt on the justice of the conviction." Commonwealth v. LaFaille, 430 Mass. 44, 55 (1999). In determining whether newly discovered evidence is material to the extent that it casts a real doubt on the justice of the conviction, a "judge decides not whether the verdict would have been different, but rather whether the new evidence would probably have been a real factor in the jury's deliberations." Grace, 397 Mass. at 306.
The Commonwealth presented Officer Reid's testimony that the defendant admitted that he had been selling up to one-half of a kilogram of cocaine per week. The defendant testified that he did not provide any drugs to Henderson (although acknowledging Henderson possessed cocaine when apprehended), and that he did not recognize the can of "Gunk" seized from his car. The jury would have been entitled to weigh the credibility of the defendant's testimony with the officer's testimony that the defendant had tried to use his admission to the police to set up a sting operation. In our view this case did not turn on the results of the drug analysis. The motion judge did not abuse his discretion or otherwise err in determining that Dookhan's misconduct would not have been a real factor in the jury's deliberations.
B. Due process violation. The defendant asserts that his constitutional right to true and accurate discovery guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution was violated by the prosecutor's failure to disclose evidence of Dookhan's misconduct prior to trial. See Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Augurs, 427 U.S. 97, 107, 110 (1976). Of course, a prosecutor is obligated to deliver exculpatory evidence to the defense. Commonwealth v. Tucceri, 412 Mass. 401, 405 (1992). We, however, discern no material violation of the Brady principles here.
As with the defendant's newly discovered evidence claim, the defendant has not demonstrated that there was "a substantial risk that the jury would have reached a different conclusion if the [nondisclosed] evidence had been admitted at trial." Commonwealth v. Tucceri, 412 Mass. at 413. Contrast Commonwealth v. Murray, 461 Mass. 10, 19 (2011) ("exculpatory" does not connote complete proof of innocence but rather favorable evidence that supports innocence).
In short, because the defendant admitted to selling large quantities of cocaine and acknowledged that the substance possessed by Henderson was cocaine, no ground has been made to appear on this record to cause us to disturb the judge's denial of the defendant's motion for a new trial. See Commonwealth v. Caillot, 449 Mass. 712, 724-725 (2007).
Accordingly, the order denying the defendant's second motion for a new trial is affirmed.
So ordered.
By the Court (Milkey, Brown & Massing, JJ.,),
The panelists are listed in order of seniority.
Justice Brown participated in the deliberation on this case prior to his retirement. --------
Clerk Entered: August 13, 2015.