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Commonwealth v. Resende

Supreme Judicial Court of Massachusetts, Plymouth

July 25, 2016

COMMONWEALTH
v.
ADMILSON RESENDE

          Heard: April 4, 2016.

         Indictments found and returned in the Superior Court Department on November 9, 2006.

         A 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.

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

          Patrick Levin, Committee for Public Counsel Services, for the defendant.

          Laurie 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.

          SPINA, J.

         The 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).[1] He completed service of his sentences.[2]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.

         Prior 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 guilty plea.

         In light of our decision in Scott, as well as new evidence concerning the Hinton drug lab's analyses of the samples in his case, [3] 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.

         Following 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.[4]

         1. Background.

         On four 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.

         On 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.

         The 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 Dookhan.[5]

         In 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."[6] 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.

         2. Testing procedures at the Hinton drug lab.

         At the 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.[7] 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.[8] 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.

         When a 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[9] 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.

         The special magistrate described the testing process used by the Hinton drug lab as a "two-phase system, " rather than a "two-chemist system."[10] 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[11] 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.

         With 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 solution.

         The 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.[12]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 ...


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