Heard: February 5, 2016.
found and returned in the Superior Court Department on
November 4, 2010.
motion to vacate a guilty plea and for a new trial, filed on
October 18, 2012, was heard by Wendie Gershengorn, J.,
special judicial magistrate, and an order affirming the
proposed order of the special judicial magistrate was entered
by Renee P. Dupuis, J.
L. Sullivan-Puccini for the defendant.
A. Wittenberg, Assistant District Attorney, for the
Present: Green, Hanlon, & Henry, JJ.
defendant, Danny Antone, appeals from an order denying his
motion to vacate his guilty plea to the offense of
trafficking in cocaine (one hundred grams or more), G. L. c.
94C, § 32E(b)(3). His motion arises from the misconduct
of Annie Dookhan, a chemist who was employed at the William
A. Hinton State Laboratory Institute (Hinton lab or lab). See
Commonwealth v. Scott, 467 Mass.
336, 337-342, 349-350 (2014) (describing Dookhan's
misconduct). On appeal, the defendant argues that his motion
should have been allowed because (1) there was a reasonable
probability that he would not have pleaded guilty if he had
known of Dookhan's misconduct, (2) the Commonwealth
failed to provide exculpatory evidence concerning
Dookhan's misconduct, and (3) Dookhan's misconduct
constitutes newly discovered evidence. We affirm.
Facts pertaining to plea.
result of information provided by a confidential informant
(CI) in the summer of 2010, the New Bedford police began to
conduct surveillance of the defendant. On one occasion they
observed him make a variety of maneuvers while driving his
vehicle that were consistent with someone conducting
"counter surveillance." The police arranged for the
CI to make two controlled purchases of cocaine from the
defendant. The police field test of the substance in
each controlled purchase was positive for cocaine.
on this information, the police obtained search warrants on
August 13, 2010, for the defendant's home and vehicle. In
preparation for execution of the warrants, the police began
surveillance of the defendant's home on August 18, 2010.
At approximately 9:00 £.M., they observed him depart in
his vehicle. The police followed and eventually stopped the
defendant's vehicle. Detective Justin Kagan approached
the vehicle on foot and observed that the defendant had
locked his doors and was drinking from a plastic water
bottle. Detective Evan Bielski, who also was present, stated
that, based on his training and experience, the
defendant's conduct was consistent with swallowing drugs.
When the defendant refused the detectives' requests to
open the door, the detectives broke one of the windows. After
a brief struggle, the defendant was taken into custody.
police took the defendant back to his home, which was within
one thousand feet of a public school, and showed him copies
of the search warrants. Bielski noticed newly installed steel
doors at the home. Although initially uncooperative, the
defendant eventually agreed to disclose the location of the
"drugs." He led the police into a bedroom and
indicated that the drugs were in a tote bag. Inside the tote
bag, Detective Haggerty discovered four plastic bags
containing a substance that Bielski, based on his training
and experience, believed to be cocaine. These bags, which
were weighed at the police station, had a combined weight
well over 200 grams. Detective Gracia found a fifth plastic
bag containing a small amount of a substance that Bielski
similarly identified as cocaine. Also recovered during the
search of the home was cash in the amount of $220 (ninety
dollars of which was in nine rolls of ten one dollar bills),
three pairs of binoculars, scales, packaging materials,
cutting agents, a cellular telephone, and cocaine cooking
materials, including metal strainers, a hot plate with a pot
of water on it, and four glass tubes. All of the cooking and
packaging materials were set up in a storage room. According
to Bielski, the room dedicated to cooking and processing the
cocaine in combination with the cocaine and cutting agents,
both of which Bielski identified, indicated the defendant was
engaged in cocaine distribution and sale, rather than
personal use. Bielski also stated that the binoculars were
significant because they were counter-surveillance equipment.
five plastic bags containing substances that Bielski
identified as cocaine were sent to the Hinton Lab for
analysis. The lab issued four certificates; one certificate
was issued for two of the bags. Each certificate is signed by
Delia Saunders as the primary chemist and Dookhan as the
confirmatory chemist and is dated September 8, 2010. Each
certificate identifies the substance in each bag as one
containing cocaine, as defined in G. L. c. 94C, § 31,
and lists the weight of the substances. The aggregate weight
of the substances is 266.88 grams. Both Saunders and Dookhan
were listed as expert witnesses for the Commonwealth in a
joint pretrial memorandum.
defendant's plea hearing on April 25, 2012, the judge was
informed by the parties that the defendant had agreed to
plead guilty in exchange for the reduction of the charge of
trafficking in 200 or more grams of cocaine to trafficking in
100 or more grams of cocaine, a sentencing recommendation of
from ten to twelve years in State prison, and the entry of a
nolle prosequi on the habitual offender and school zone
charges. The agreement eliminated the risk that the
defendant, who was fifty-seven years old, would face a
minimum mandatory twenty-two year sentence. The judge
accepted the defendant's guilty plea to the reduced
charge and imposed the recommended sentence. The Commonwealth
nol prossed the two remaining charges.
Motion to vacate plea.
six months after the defendant's plea, in light of the
issues that surfaced at the Hinton lab, the defendant moved
to withdraw his guilty plea. After a hearing at which
exhibits were introduced, a special judicial magistrate, who
had been assigned to preside over criminal cases related to
Dookhan's misconduct, issued findings, rulings, and a
proposed order denying the defendant's motion.
magistrate applied the two-prong test set forth in
Commonwealth v. Scott, 467 Mass.
at 346-358 (Ferrara-Scott test).
the first prong, the magistrate found that the defendant was
entitled to a conclusive presumption that egregious
government misconduct occurred in his case because he had
"furnished drug analysis certificates bearing Annie