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Commonwealth v. Cotto

Supreme Judicial Court of Massachusetts, Hampden

April 8, 2015

Erick Cotto, Jr

Argued December 4, 2014.

[As Modified on May 1, 2015.]

Indictments found and returned in the Superior Court Department on June 14, 2007.

Page 98

A motion to withdraw guilty pleas, filed on April 25, 2013, was heard by C. Jeffrey Kinder, J.

The Supreme Judicial Court granted an application for direct appellate review.

Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant.

Katherine A. Robertson, Assistant District Attorney, for the Commonwealth.

Luke Ryan, for Rafael Rodriguez, amicus curiae, submitted a brief.

Glynis MacVeety, for Deon Charles, amicus curiae, submitted a brief.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


[27 N.E.3d 1215] Spina, J.

On June 14, 2007, a Hampden County grand jury indicted the defendant, Erick Cotto, Jr., on charges of trafficking in cocaine (twenty-eight to one hundred grams), G. L. c. 94C, § 32E ( b ) (2); unlawful possession of ammunition without a firearm identification card, G. L. c. 269, § 10 ( h ); and being an armed career criminal, G. L. c. 269, § 10G ( b ). Sonja Farak, then a chemist at the Department of Public Health's State Laboratory Institute in Amherst (Amherst drug lab), tested the substances in the defendant's case on June 8, 2007, and signed the certificates of drug [27 N.E.3d 1216] analysis (drug certificates).[1] Pursuant to a plea agreement, the defendant pleaded guilty on April 13, 2009, to trafficking in cocaine (fourteen to twenty-eight grams), and unlawful possession of ammunition.[2]

On April 1, 2013, a State grand jury indicted Farak on 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. Approximately three weeks later, the defendant filed a motion to withdraw his guilty pleas pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). He claimed that Farak was a government

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agent by virtue of her role at the Amherst drug lab, that her misconduct was widespread and egregious, and that such misconduct antedated his guilty pleas. As a consequence, the defendant asserted that because his guilty pleas were based, in part, on an assumption that the drug certificates were truthful and accurate, his decision to plead guilty was not knowing, voluntary, and intelligent. The defendant further claimed that Farak's misconduct constituted newly discovered evidence that would have had a significant impact on his decision to plead guilty and cast serious doubt on the justice of his convictions.[3] On October 30, 2013, a Superior Court judge denied the defendant's motion. Farak pleaded guilty to all ten charges on January 6, 2014.

The defendant appealed, and we granted his application for direct appellate review. The defendant now contends that the judge abused his discretion by (1) failing to afford the defendant the benefit of the conclusive presumption articulated in Commonwealth v. Scott, 467 Mass. 336, 352-353, 5 N.E.3d 530 (2014), that egregious misconduct by Farak occurred in the defendant's case; (2) ignoring direct and circumstantial evidence of misconduct by Farak that antedated the entry of the defendant's guilty pleas; and (3) finding that the defendant would have pleaded guilty notwithstanding Farak's misconduct. The defendant also claims that the judge erred by quashing a subpoena that had been issued to Farak's spouse, Nikki Lee, where she was a necessary witness for the defense. For the reasons set forth below, we vacate the order denying the defendant's motion to withdraw his guilty pleas, and we conclude that, given the Commonwealth's failure to thoroughly investigate the matter of Farak's misconduct at the Amherst drug lab, the defendant is entitled to a measure of relief, as will be described in detail.[4] We remand the case for further proceedings in accordance with this opinion.

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[27 N.E.3d 1217] 1. Background on the Amherst drug lab.[5]

The Amherst drug lab began operation 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.[6] 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 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 observed a change in Farak's behavior, including frequent unexplained absences from her work station and a decrease in productivity.

On January 19, 2013, the State police forensic services conducted an inventory of all drug evidence at the Amherst drug lab.

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Only the four above-described samples were missing. A similar inventory conducted approximately four months earlier had not uncovered any missing samples. Also on January 19, the State police searched Farak's vehicle pursuant to a warrant and seized, among other items, manila envelopes bearing case numbers, paperwork relating to the Amherst drug lab, a plastic bag containing a white powdery substance and a brown tar-like substance, a plastic bag containing assorted pills, and photocopies of three newspaper articles about individuals who had been investigated, charged, or sentenced for the illegal possession or theft of controlled substances.[7] Attached to one of the articles [27 N.E.3d 1218] was a handwritten note stating, " Thank [G]od I'm not a law enforcement officer " (emphasis in original).

Farak was arrested at her home that same day. She was charged by criminal complaint in the District Court with unlawful possession of a class A substance (heroin), unlawful possession of a class B substance (cocaine), and two counts of tampering with evidence. On January 25, 2013, the State police searched a tote bag that had been seized from Farak's work station pursuant to a warrant. The bag contained a variety of substances that could be used to dilute or replace cocaine (soap, baking soda, soy candle flakes, and oven-baked clay), other items commonly used in the drug trade (plastic laboratory dishes, waxed paper, and fragments of copper wire), and several evidence bags that had been cut open. The evidence bags bore diverse dates from December 16, 2012, to January 6, 2013.

On April 1, 2013, a State grand jury indicted Farak on four counts of tampering with evidence at the Amherst drug lab, four counts of stealing cocaine from that facility, and two counts of unlawful possession of cocaine. While proceedings were ongoing in the Superior Court with respect to these charges, four additional cases surfaced in which it seemed, based on retesting, that Farak may have removed cocaine from samples that were submitted

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to the Amherst drug lab for analysis between June 15 and October 10, 2012, and replaced at least some of the cocaine with a counterfeit substance. It is not clear from the record why this particular evidence was selected for retesting. Nonetheless, it does appear that no charges were brought against Farak with respect to these four additional cases. On January 6, 2014, Farak pleaded guilty to all ten charges.[8]

2. Factual and procedural history.

In the spring of 2007, Springfield police Officer Thomas Nehmer discovered, through the use of a confidential informant, that the defendant was selling cocaine. On May 4, 2007, based on information received from the informant regarding the defendant's involvement in an upcoming drug deal, the police established surveillance at the time and place of the transaction. When the defendant arrived as predicted, he was secured by police and found to be in possession of two cellular telephones, ninety-one dollars, and what appeared to be approximately eight grams of cocaine. He was placed under arrest and transported to the police station. Following a waiver of his Miranda rights, the defendant told officers that in his bedroom at his [27 N.E.3d 1219] residence were packaging materials, scales, and approximately thirty grams of cocaine. Officer Nehmer applied for and was granted a search warrant. When officers searched the defendant's residence, they discovered fifty-eight rounds of .22 caliber ammunition, scales, cutting agents, and two bags containing substances that appeared to be cocaine and weighed approximately forty-four grams. The substances were tested by Farak at the Amherst drug lab on June 8, 2007. According to the drug certificates that she signed, each substance tested positive for cocaine.[9]

On April 13, 2009, after engaging in a thorough ...

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