Opinion
16-P-777
05-15-2017
COMMONWEALTH v. Nathan W. MARTIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant was convicted of trafficking heroin in excess of 100 grams. See G. L. c. 94C, § 32E(c )(3). On appeal, he contends that Annie Dookhan's role as the confirmatory chemist, coupled with weight fluctuations noted between the initial test and the retest of the substance recovered from the defendant's person and apartment, demonstrate that the drugs were tampered with. Therefore, he asserts, there has been an irremediable violation of his right to due process and a fair trial. For similar reasons, he maintains the evidence was insufficient. We affirm.
The trial judge dismissed a conviction of unlawful possession of a class A substance with intent to distribute as a lesser included offense of the trafficking charge. The Commonwealth also charged the defendant with commission of a drug offense within a school zone, see G. L. c. 94C, § 32J, but entered a nolle prosequi at trial.
Background. We recite the relevant facts as the trial judge could have found them. On December 8, 2010, a New Bedford police officer obtained and executed a search warrant on the defendant's apartment. Before the search, the police officers saw the defendant leave the area in a car. The officers stopped the car and saw the defendant move his arms toward his face. They then ordered him to spit out the contents of his mouth. The defendant spit out five bags containing a powdery substance. The police then drove the defendant back to his apartment to execute the search warrant.
There the police officers discovered fifty-nine cut corner bags containing a powdery substance, $3,000 in cash, a digital scale, and a ledger. The officers also discovered a large, hard ball of a brown substance inside a plastic bag in a laundry basket. When a police officer noticed track marks on the defendant's arms, he asked whether the defendant was "selling a little to do a little." The defendant responded, "I'm selling a lot to do a lot." The defendant further explained that he used eight grams of heroin per day. The defendant was arrested, and the suspected heroin was taken to the Hinton drug lab in Jamaica Plain.
Della Saunders, who prepared and analyzed the initial sample, served as the primary chemist, while Dookhan, who analyzed a sample prepared by Saunders, served as the confirmatory chemist. Saunders kept the evidence in a secure locker, to which only she and her supervisor had the key. Saunders randomly sampled twenty bags, weighed them, and tested five, determining that the substance was in fact heroin. Dookhan only had access to the sample Saunders provided to her. Dookhan analyzed her sample and reached the same conclusion.
After Dookhan's misconduct came to light, but before the defendant's trial, a chemist with the Massachusetts State police forensic services group retested the evidence secured in Saunders's locker. The chemist concluded that the substance was in fact heroin and noted some fluctuations in the sample weights. Saunders testified that such fluctuations were likely caused by humidity and evaporation. She further testified that her own distinctive handwriting appeared on the evidence bag seal containing the heroin and that Dookhan did not have a key to access Saunders's drug locker.
Discussion. 1. Governmental misconduct. The defendant first contends that Dookhan's involvement, coupled with the weight fluctuations in the samples, compel the inference that Dookhan tampered with the drugs and tainted the evidence, resulting in the denial of his due process right to a fair trial.
In Commonwealth v. Scott, 467 Mass. 336 (2014), the Supreme Judicial Court recognized a presumption of governmental misconduct in cases where the defendant (1) entered a plea without knowledge of Dookhan's misconduct and (2) could show that Dookhan served as a chemist on the case. See id. at 347-358. However, in a trial where "the defendant seeks to impeach the testing process utilized at the Hinton Drug lab," this presumption does not apply. Id. at 354. See Commonwealth v. Curry, 88 Mass. App. Ct. 61, 63-64 (2015). "[T]he import of Scott is that a defendant who elects a trial will have the opportunity to present evidence, but not the benefit of a presumption, of misconduct in his or her particular case." Id. at 63.
The Supreme Judicial Court also extended this presumption to cases where defendants went to trial without knowledge of Dookhan's misconduct and were found guilty. See Commonwealth v. Francis, 474 Mass. 816, 823-824 (2016).
Here, as in Curry, "[t]hat is precisely what [the] defendant received: a trial in which his defense focused on impeaching the reliability of the drug evidence presented by the Commonwealth." Ibid. The defendant had a full opportunity to impeach the reliability of the drug evidence, and the record indicates that he did so quite vigorously. Although Dookhan performed the confirmatory tests, Dookhan only had access to the small subsample. Furthermore, both Saunders and the State police chemist concluded that the substance was heroin. The trial judge was entitled to rely on this testimony as well as the other evidence presented. Where the defendant had an opportunity to impeach the drug evidence on the grounds of Dookhan's misconduct, no due process violation occurred. See id. at 64.
2. Sufficiency. The defendant also contends that the Commonwealth presented insufficient evidence to prove that the substance seized was heroin. "[V]iewing the evidence in the light most favorable to the [ Commonwealth]," Commonwealth v. Grassie, 476 Mass. 202, 207-208 (2017), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence was sufficient.
Saunders testified that the weight fluctuations were consistent with fluctuations due to humidity and evaporation. Although Dookhan admitted to forging the initials of some primary chemists, Saunders recognized her distinctive handwriting on the evidence bags containing the substance, noted the unbroken seals on the evidence bags, and identified her notes on the analysis of the substance contained inside the evidence bags. The State police chemist retested the recovered substance and concluded, as Saunders did, that the substance was heroin. The judge could permissibly find beyond a reasonable doubt that Dookhan had not tampered with Saunders's samples, and that the test results were valid.
In addition, the defendant attempted to swallow five cut corner bags before the police officers ordered him to spit them out, an act of deception suggesting consciousness of guilt. See generally Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 846-847 (2010). The officers also recovered over fifty cut corner bags from the defendant's apartment. See Commonwealth v. DeMatos, 77 Mass. App. Ct. 727, 732 (2010). The defendant had track marks on his arms, a large amount of cash, and a digital scale and ledger in his apartment. See Commonwealth v. Harris, 75 Mass. App. Ct. 696, 707 (2009) ; DeMatos, supra; Commonwealth v. Hopkins, 79 Mass. App. Ct. 412, 415-416 (2011). An experienced narcotics investigator described the appearance of heroin, testified that it is sold in New Bedford in corner cut bags, and that dealers use a digital scale and ledgers. See Harris, supra; DeMatos, supra. Finally, when a detective asked the defendant whether he was "selling a little to use a little," the defendant admitted that he was "selling a lot to do a lot" and that he was doing "eight grams a day." The Commonwealth presented sufficient evidence to support the conviction.
"Proof that a substance is a particular drug ... may be made by circumstantial evidence." Commonwealth v. Dawson, 399 Mass. 465, 467 (1987).
--------
Judgment affirmed.