Supreme Judicial Court of Massachusetts, Plymouth
Heard: April 4, 2016.
found and returned in the Superior Court Department on
November 9, 2006.
motion to withdraw a guilty plea, filed on October 2, 2012,
and supplemented on March 20, 2014, was heard by Paul A.
Chernoff, J., special judicial magistrate, and an order
affirming the proposed order of the special judicial
magistrate was entered by Frank M. Gaziano, J.
Supreme Judicial Court granted an application for direct
Patrick Levin, Committee for Public Counsel Services, for the
Yeshulas, Assistant District Attorney (Lisa J. Jacobs,
Assistant District Attorney, with her) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
present case is the most recent in a series of cases
concerning the egregious misconduct of Annie Dookhan, a
chemist who was employed in the forensic drug laboratory of
the William A. Hinton State Laboratory Institute (Hinton drug
lab) from 2003 until 2012. On January 23, 2007, the
defendant, Admilson Resende, pleaded guilty on indictments
charging distribution of a class B controlled substance
(cocaine), G. L. c. 94C, § 32A (c0 (five counts);
violation of the controlled substances laws in proximity to a
school or park, G. L. c. 94C, § 32J (three counts); and
possession of a class B controlled substance (cocaine) with
intent to distribute, G. L. c. 94C, § 32A (c0 (one
count). He completed service of his
sentences.On October 2, 2012, the defendant filed in
the Superior Court a motion to withdraw his guilty pleas
pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass.
1501 (2001), based on Dookhan's malfeasance.
to the issuance of a ruling on the defendant's motion,
this court decided Commonwealth v.
Scott, 467 Mass. 336 (2014), in which we
articulated, in reliance on Ferrara v.
United States, 456 F.3d 278, 290-297 (1st Cir.
2006), a two-prong framework for analyzing a defendant's
motion to withdraw a guilty plea under rule 30 (b) in a case
involving the misconduct of Dookhan at the Hinton drug lab.
Scott, supra at 346-358. Under the first
prong of the analysis, a defendant must show egregious
misconduct by the government that preceded the entry of the
defendant's guilty plea and that occurred in the
defendant's case. Id. at 347-354. We recognized
that, given the breadth and duration of Dookhan's
malfeasance, it might be impossible for a defendant to show
the required nexus between government misconduct and the
defendant's own case. Id. at 351-352.
Consequently, we established a special evidentiary rule
whereby a defendant seeking to vacate a guilty plea under
rule 30 (b) as a result of the revelation of Dookhan's
misconduct, and proffering a certificate of drug analysis
(drug certificate) from the defendant's case signed by
Dookhan on the line labeled "Assistant Analyst, "
would be entitled to "a conclusive presumption that
egregious government misconduct occurred in the
defendant's case." Id. at 352. Application
of this conclusive presumption in a particular case meant
that a defendant's evidentiary burden to establish each
element of the first prong of the
Ferrara-Scott framework was satisfied.
Id. at 353-354. The defendant then had the burden
under the second prong of the analysis of particularizing
Dookhan's misconduct to his or her decision to tender a
guilty plea. Id. at 354-355. That is to say, the
defendant had to "demonstrate a reasonable probability
that he [or she] would not have pleaded guilty had he [or
she] known of Dookhan's misconduct." Id. at
355. A successful showing on this second prong of the
Ferrara-Scott framework would warrant an
order granting the defendant's motion to withdraw a
light of our decision in Scott, as well as new
evidence concerning the Hinton drug lab's analyses of the
samples in his case,  the defendant filed supplemental pleadings
on March 20, 2014, in support of his motion to withdraw his
guilty pleas. He pointed out that Dookhan had set up and
operated the gas chromatography-mass spectrometry (GC-MS)
machine for three out of the seven samples in his case
(although her name did not appear on those drug
certificates), and that she had been the confirmatory chemist
for a fourth sample. As a consequence, the defendant asserted
that, with respect to these four samples, he was entitled to
the conclusive presumption articulated in Scott, 467
Mass. at 352, that egregious government misconduct occurred
in his case. He further argued that he would not have pleaded
guilty had he known of Dookhan's misconduct at the time
of his pleas.
an evidentiary hearing, a special magistrate appointed by the
Chief Justice of the Superior Court Department of the Trial
Court pursuant to Mass. R. Crim. P. 47, 378 Mass. 923 (1979),
denied the defendant's motion to withdraw his guilty
pleas. See Commonwealth v.
Charles, 466 Mass. 63, 89-90 (2013) (describing
authority of special magistrate to conduct guilty plea
colloquies in Hinton drug lab sessions). The defendant
appealed the special magistrate's proposed order dated
May 12, 2014, to the Regional Administrative Justice of the
Superior Court, who denied the defendant's appeal and
affirmed the decision of the special magistrate. See
Id. at 66, 90-91. The defendant filed a timely notice of
appeal in the Appeals Court, and we subsequently granted his
application for direct appellate review. For the reasons that
follow, we conclude that the defendant was not entitled to
the conclusive presumption that egregious government
misconduct occurred in his case, and that his motion to
withdraw his guilty pleas was properly denied.
divers dates in August, 2006, Detective Timothy Stanton of
the Brockton police department conducted "controlled
buys" of what appeared to be cocaine from the defendant.
Each purchase occurred in a similar manner. Stanton would
telephone a number that had been provided by the defendant
and would meet him (or, on the first occasion, a female
associate) at a designated location in the
"Village" section of Brockton. Each of these
locations was within 1, 000 feet of an elementary school or a
park. Stanton would purchase two "twenty" bags of
an off-white rock-like substance from the defendant for forty
dollars. Before and after several of these controlled buys,
the defendant was observed leaving and reentering a
multifamily home on North Montello Street. Field tests
conducted on the substances indicated the presumptive
presence of cocaine. Based on these controlled buys, Stanton
applied for and was granted a search warrant for the
defendant's residence on the first floor of the North
Montello Street address.
August 22, 2006, Stanton engaged in a fifth controlled buy
with the intention of executing the search warrant
immediately thereafter. He telephoned the defendant, who
directed him to the corner of North Montello Street and King
Avenue and advised him that he would have one
"forty" bag instead of two "twenty" bags.
When Stanton arrived at the meeting place, he telephoned the
defendant and subsequently observed him leaving the residence
on North Montello Street. Stanton gave the defendant two
twenty dollar bills with prerecorded serial numbers in
exchange for a clear plastic bag containing an off-white
rock-like substance. A team of police officers then secured
the defendant and took him into custody. The defendant was
advised of the Miranda rights and acknowledged that he
understood those rights. Found on the defendant's person
were a Nextel cellular telephone (on which Stanton's
telephone call was still visible), three pieces of an
off-white rock-like substance wrapped in clear plastic, a bag
containing green vegetable matter, and two twenty dollar
bills having the prerecorded serial numbers.
substances recovered from the five controlled buys and from
the defendant's person were sent to the Hinton drug lab
for analysis. Seven drug certificates were issued. As
relevant to the present appeal, three of the drug
certificates, stating that the substances seized from the
defendant contained cocaine as defined in G. L. c. 94C,
§ 31, were signed on the line labeled "Assistant
Analysts" by Daniela Frasca and Michael Lawler. However,
as will be explained in greater detail infra,
Dookhan was the so-called "setup operator" for the
substances (samples 779099, 779110, and 779125) that were
analyzed to generate these certificates. A fourth drug
certificate, stating that the substance (sample 810059)
seized from the defendant contained cocaine as defined in G.
L. c. 94C, § 31, was signed on the line labeled
"Assistant Analysts" by Frasca and
2012, Dookhan admitted to tampering with evidence at the
Hinton drug lab, failing to comply with quality control
measures, forging the initials of an evidence officer, and
"dry labbing." See Scott, 467 Mass. at
339-340. It appeared that "the motive for her wrongdoing
was in large part a desire to increase her apparent
productivity." Id. at 341. Following a criminal
investigation into Dookhan's misconduct, the Attorney
General's office indicted her on twenty-seven charges
--seventeen counts of tampering with evidence, eight counts
of obstruction of justice, one count of perjury, and one
count of falsely claiming to hold a degree from a college or
university. See Id. at 337 & n.3. On November
22, 2013, Dookhan pleaded guilty to all of the charges.
See Id. She was sentenced to from three years to
five years in the State prison, followed by a probationary
term of two years.
Testing procedures at the Hinton drug lab.
April 22, 2014, hearing before the special magistrate on the
defendant's motion to withdraw his guilty pleas, the
parties presented, among other evidence, a report from the
office of the Inspector General (report), dated March 4,
2014, describing its comprehensive investigation of the
operation and management of the Hinton drug lab from 2002 to
2012. In addition, the defendant presented the
testimony of Michael Lawler, the confirmatory chemist for
samples 779099, 779110, and 779125, with respect to which
Dookhan was the setup operator. Lawler, whom the special
magistrate found to be credible, described the GC-MS machine,
as well as the duties and responsibilities of a primary
chemist, a confirmatory chemist, and a setup operator.
law enforcement agency brought a substance to the Hinton drug
lab for analysis, an evidence officer would accept the
substance and assign it a sample number, which would be
attached to the substance through all of the phases of the
testing process. The evidence officer would create a drug
receipt, which included the sample number, and would give a
copy of the receipt to the law enforcement agency that had
requested the analysis. Then, the evidence officer would
generate a control card and place it, together with the
substance, in a manila envelope labeled with the sample
number. Eventually, the substance would be assigned to a
chemist for analysis.
special magistrate described the testing process used by the
Hinton drug lab as a "two-phase system, " rather
than a "two-chemist system." During the
preliminary phase, substances submitted by law enforcement
agencies for analysis were assigned to a primary chemist.
That individual would be responsible for weighing the samples
and conducting preliminary bench tests, which included color,
microcrystalline, gas chromatography, infrared spectroscopy,
ultraviolet spectroscopy, macroscopic, and microscopic tests.
The primary chemist would document the test results and make
preliminary determinations as to the identities of the
samples. Then, the primary chemist would prepare the samples
for the confirmatory testing process by making
aliquots for analysis by the GC-MS machine. In
addition, the primary chemist would complete a GC-MS control
sheet, setting forth the date, the identity of the primary
chemist, the name of the submitting law enforcement agency, a
list of samples in numerical order, the chemist's
preliminary findings, and any comments that would be helpful
to the confirmatory chemist in the subsequent analysis.
Finally, the primary chemist would take the GC-MS control
sheet, the control card, and the aliquots to the room where
the GC-MS machines were located (GC-MS room) so that the
confirmatory phase of the testing process could begin.
respect to the confirmatory testing process, the Hinton drug
lab generally followed the protocol recommended by the
Scientific Working Group for the Analysis of Seized Drugs,
which relied on use of a GC-MS machine. The GC-MS room was
situated in the middle of the laboratory complex and was
accessible by only one door. Each machine was a large,
box-shaped piece of equipment with a robotic arm that had a
syringe attached to the end of it. Placed inside the GC-MS
machine was a carousel which could be loaded with 100 to 120
vials, depending on the size of the machine. When
operational, the carousel would move the vials toward the
syringe which would puncture the top of each vial to commence
the testing process for that sample. After the contents of a
vial were analyzed, the GC-MS machine automatically purged
the syringe by "spitting" its contents into a waste
receptacle and then putting the syringe into a cleaning
confirmatory phase involved three separate steps --receipt of
the samples in the GC-MS room, operation of the GC-MS
machine, and analysis of the results from the GC-MS machine
to confirm the preliminary identification of the samples. It
was common practice at the Hinton drug lab for the setup
operator to complete the first two steps, and for the
confirmatory chemist, who signed the drug certificates, to
complete the last step.Chemists were assigned to work as the
setup operator for week-long shifts. Although the setup
operator had some level of autonomy because he or she was not
directly supervised, a supervisor usually was present in the
GC-MS room. On some occasions, the setup operator would
become the confirmatory chemist and would analyze the results
produced by ...