[As Modified an May 1, 2015]
Argued: December 4, 2014
Indictments found and returned in the Superior Court Department on August 29, 2007; November 25, 2009; and March 9, 2010.
A motion for leave to conduct postconviction discovery and for funds, filed on February 14, 2014, was considered by C. Jeffrey Kinder, J.
The Supreme Judicial Court granted an application for direct appellate review.
James P. McKenna for the defendant.
Katherine A. Robertson, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[27 N.E.3d 1205] Spina, J.
In this case, we consider whether a Superior Court judge abused his discretion in denying a motion for leave to conduct postconviction discovery and for funds, filed by the defendant, Bryant Ware. The defendant sought retesting of drug evidence maintained by the Springfield police department in countless cases brought by the Commonwealth between July, 2004, and January 18, 2013. During that time period, Sonja Farak was a chemist at the Department of Public Health's State Laboratory Institute in Amherst (Amherst drug lab). Also during that time period, the defendant was indicted on drug charges in three separate cases. His motion for postconviction discovery was predicated on the fact that Farak pleaded guilty on January 6, 2014, to four counts of tampering with evidence, G. L. c. 268, § 13E; four counts of theft of a controlled substance (cocaine) from a dispensary, G. L. c. 94C, § 37; and two counts of unlawful possession of a class B substance (cocaine), G. L. c. 94C, § 34. In denying the motion, the judge concluded that the defendant had failed to establish a prima facie case for relief under Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001). We conclude that the judge did not abuse his discretion, and affirm his order. At the same time, based on what we learn from the record in this case about Farak's misconduct at the Amherst drug lab and the Commonwealth's failure to investigate the scope and timing of such misconduct, we further conclude that the defendant is entitled to retest the controlled substance that gave rise to the 2009 indictment charging distribution of cocaine as a subsequent offense.
1. Background on the Amherst drug lab.
The Amherst drug lab began operation [27 N.E.3d 1206] in 1987 with the primary function of analyzing
suspected controlled substances for law enforcement agencies involved in the prosecution of criminal cases in western Massachusetts. As of January, 2013, there were four employees at the facility, and each one could access the evidence safe by means of an electronic card or a key. On January 17, 2013, the evidence officer at the Amherst drug lab, Sharon Salem, was attempting to match certificates of drug analysis (drug certificates) with the corresponding samples when she realized that she was missing the samples in two cases. Records reflected that Farak had completed testing on those samples earlier in the month and had confirmed that the substances were cocaine. On January 18, Salem reported the missing evidence to her supervisor, James Hanchett, who searched Farak's work station and discovered, among other items, a manila envelope containing the packaging for the two missing samples, which had been cut open. Testing of the substances in the packaging was negative for cocaine, contrary to Farak's earlier analysis.
Hanchett immediately contacted the State police, who shut down the Amherst drug lab and began an investigation. They discovered two additional case envelopes in a temporary storage locker used by Farak, a location where evidence was not allowed to be stored overnight. Although each envelope was supposed to contain suspected cocaine, neither did, and a search for those substances was unsuccessful. Investigators also interviewed Farak's colleagues who said that, beginning in September, 2012, they ...