Opinion
19-P-217
05-19-2020
COMMONWEALTH v. Jean G. TOUSSAINT.
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. 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.
The defendant claims that the grand jury testimony contradicts the police report, but that testimony was not in the record before the motion judge or us, so we do not discuss it further.
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 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.
See Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006) (defendant must show that "some egregiously impermissible [governmental] misconduct attended the entry of [the] plea," and "that the misconduct influenced [the] decision to plead guilty").
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 alternative measures and to conclude that they were not reasonably likely to have borne any fruit. See Scott, 467 Mass. at 357 ("a court attempting to answer this question must use a wide-angled lens"). It is not enough that, if informed of Dookhan's misconduct just before pleading guilty on May 25, 2010, the defendant would not have gone through with the plea on that day and instead would have pursued further motions and negotiations. The defendant must show that those measures themselves would ultimately have created "a reasonable probability that he would not have pleaded guilty" and "would have insisted on taking his chances at trial." Id. at 355, 358. See Commonwealth v. Cotto, 471 Mass. 97, 117 (2015) ; Commonwealth v. Wallace, 92 Mass App. Ct. 7, 12-13 (2017).
The defendant's potential motion to dismiss the indictments would have been unlikely to succeed because the evidence that the defendant admitted he had more crack, and then pulled three large yellow rocks out of his pants, would have sufficed to establish probable cause. Compare Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (grand jury must hear sufficient evidence to find probable cause to indict). Similarly, moving pursuant to Commonwealth v. O'Dell, 392 Mass. 445, 448-449 (1984), would have been unlikely to succeed because the prosecutor did not offer the Dookhan-related evidence knowing that it was tainted, and "our cases have required a showing that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment" (emphasis added). Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986).
Nor do we see any abuse of discretion in the judge's conclusion that Dookhan's misconduct would not have provided sufficient leverage to obtain a better plea agreement. It is reasonable to conclude that, if the case had gone to trial, the Commonwealth would not have used Dookhan's testimony or certificates as evidence, and this rendered her misconduct essentially irrelevant and of no exculpatory value.
c. Special circumstances. The defendant also argues that the judge erred in concluding that knowledge of Dookhan's involvement in the BMC case would not have significantly influenced the defendant's decision to accept the guilty plea in this case. He claims that, had he known he had grounds to move to vacate the BMC conviction and dismiss that case, the "forthwith" aspect of the sentence agreed upon here, which essentially negated the BMC sentence, would have had no value and thus reduced his motivation to accept the plea agreement in this case. Again, we see no error.
The defendant makes the critical assumption that mere knowledge of Dookhan's misconduct would itself have sufficed to allow him to consider the BMC case as "no longer an issue," secure in the knowledge that that guilty plea would ultimately be vacated. But this assumption depends on many facts not in the record. The Scott factors have never been applied to the defendant's guilty plea in the BMC case. For example, the record does not disclose whether the Commonwealth's case was so strong, even absent Dookhan-tainted drug certificates, that the defendant would have pleaded guilty nonetheless.
The April 2017 order vacating the BMC conviction was based not on any Scott-factor analysis as to whether the defendant would have pleaded guilty had he known of Dookhan's misconduct but, instead, was based on the District Attorney's determination that, assuming the defendant's plea were to be vacated, the District Attorney could not or would not reprosecute. See Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 326-327 (2017). Such a determination could have been based on any number of factors, including those related to the passage of time, and in no way establishes that the BMC guilty plea, when entered, would have been vulnerable to a Dookhan-based challenge. Thus, because the defendant has not shown (as is his burden here, see Scott, 467 Mass. at 354-355 ) that he could have counted on the BMC case evaporating, the "forthwith" aspect of the sentence to which the Commonwealth agreed here still had considerable value to him.
Additionally, as the judge here concluded, even if the BMC conviction could have been vacated at the time, that would not have negated the defendant's probation violations in that case, involving actions unrelated to Dookhan's misconduct. The violations were based on the defendant's arrest in this case, in which he was initially charged not only with drug offenses but with trespass, breaking and entering in the daytime, and unlawful possession of a firearm and ammunition. Had the defendant gone to trial in this case and been convicted, the sentencing judge could have taken those nontainted probation violations as evidence that the defendant was less amenable to rehabilitation and thus deserving of sentences exceeding the mandatory minima. By accepting the plea agreement here, the defendant avoided that risk of longer sentences. See Resende, 475 Mass. at 18-19.
3. Additional Scott factors. The defendant also argues that the judge abused his discretion in overlooking six relevant Scott factors and failing to consider the corresponding evidence for those factors. See Scott, 467 Mass. at 355-358 ; Antone, 90 Mass. App. Ct. at 814-817. We see no error or abuse of discretion.
First, it bears repeating that "the relevant factors and their relative weight will differ from one case to the next." Scott, 467 Mass. at 356. In his decision, the judge listed the Scott factors and then discussed the strength of the Commonwealth's case without any discussion of what Dookhan's testimony and certificates would add to it. That discussion, in which the judge implicitly assumed that none of Dookhan's evidence would be offered at trial, subsumed three of the Scott factors that the defendant argues were overlooked.
Those subsumed factors are: whether Dookhan's misconduct could have been used in potentially outcome-determinative witness impeachment; whether the misconduct was cumulative of preexisting evidence; and whether the misconduct would have influenced counsel's recommendation regarding a plea offer. See Scott, 467 Mass. at 355-356.
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Nor was it an abuse of discretion for the judge not to expressly address three other factors, where they would have added little to the analysis. One factor that added virtually nothing is "whether the drug-related charges were a minor component of an over-all plea agreement." Scott, 467 Mass. at 357. There were no nondrug indictments here, and thus no reason for the judge to discuss this factor.
As for "whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea," id. at 355, there is no question that had the drug certificates been used as that factual basis, evidence of Dookhan's misconduct could have detracted from it. However, because the defendant did not offer the transcript of the change of plea hearing in evidence, he has not shown whether the prosecutor relied on the certificates, or the defendant's statements and actions in the holding cell, or both. Thus, because it would have been sufficient if the prosecutor had relied solely on the defendant's statements, the defendant has not met his burden of showing that this factor weighs in his favor. See id. at 354-355.
As for "whether the defendant had a substantial ground of defense that would have been pursued at trial," id. at 356, the defendant suggests that the weight of the cocaine would have been a significant issue. But the Commonwealth did not need the Dookhan evidence to prove the weight, because the police had weighed the substances at the police station. Furthermore, any issue as to weight had already been taken into account in the Commonwealth's charge concession, allowing the defendant to plead guilty to a reduced charge of trafficking fourteen to twenty-eight grams of cocaine.
4. Credibility findings. The defendant argues that the judge erred in not making explicit credibility determinations regarding the defendant or plea counsel. But the judge was free to discredit the defendant's self-serving affidavit, and he did so at least as to the defendant's version of events in the holding cell. Otherwise, no credibility findings were required, because the judge could have reached the result he did here even after crediting the defendant's and plea counsel's statements regarding what they would have done had they known of Dookhan's misconduct.
5. Due process violations. Finally, the defendant argues that, in light of Dookhan's misconduct, his plea violated his due process rights under both the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. But the defendant has not articulated a due process argument that is independent of his argument that the Dookhan evidence rendered his plea unintelligent and involuntary. Because the Scott analysis has produced the conclusion that the defendant ultimately was not likely to have rejected the plea agreement, we see no separate basis for a claim that the plea was not knowing and voluntary. See Scott, 467 Mass. at 358-362.
Order denying motion for new trial affirmed.