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Commonwealth v. Rodriguez

Appeals Court of Massachusetts, Suffolk

February 20, 2018


          Heard: November 3, 2017

         Indictment found and returned in the Superior Court Department on August 5, 2009.

         The case was tried before Linda E. Giles, J.

          Edward Crane for the defendant.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

          Present: Wolohojian, Massing, & Wendlandt, JJ.

          MASSING, J.

         In yet another case affected by the wrongdoing of former State chemist Annie Dookhan, see generally Commonwealth v. Scott, 467 Mass. 336 (2013); Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298 (2017) (Bridgeman), we must reverse a defendant's conviction of trafficking in heroin. See G. L. c. 94C, § 32E (c) . In an effort to cure the taint from Dookhan's association with the case as primary chemist, a police officer testified that he performed a field test of the substance seized from the defendant, which proved that the substance was heroin. The testimony was admitted, over the defendant's objection, without establishing the scientific reliability of the field test. We conclude that the admission of this evidence was prejudicial error and that the defendant is entitled to a new trial.


         We recite the basic facts as the jury could have found them, reserving other facts for later discussion. On April 27, 2009, officers of the Boston police department's drug control unit went to the housing development where the defendant, Juan Carlos Rodriguez, lived to execute three search warrants: one for the defendant's apartment, one for his motor vehicle, and one for his person. Once inside the defendant's apartment, the officers used a key recovered from the defendant's motor vehicle to open a locked bedroom door. In the bedroom's closet, the police found a total of $13, 270, a digital scale, and a small pouch that contained nine individually wrapped packages, or "fingers, "[1] of a substance that resembled sidewalk chalk. A search of the defendant's person yielded two similar packages.

         Officer Robert England took the eleven packages to the police station and conducted a field test using a NarcoPouch 924 test kit manufactured by Safariland. The NarcoPouch 924 test kit is a small, sealed rubber pouch that contains three glass vials filled with chemical solutions. England unsealed the NarcoPouch 924 test kit, placed a small amount of the chalky substance inside the pouch, resealed it, and began "popping" the vials so that the unknown substance interacted with the chemical solutions. He testified, "I field-tested these drugs[2] and the preliminary result came back to me. It showed green to me. We believe it was [h]eroin."

         The eleven packages were sent to the William A. Hinton State Laboratory Institute in Jamaica Plain (Hinton lab) in April, 2009, for testing. As the primary chemist assigned to the case, Annie Dookhan "received [the packages] from the evidence office . . . checked it and [did] all the preliminary testing, which included doing the net weight, doing color tests, [and] perhaps . . . other kinds of testing." Delia Saunders, the confirmatory chemist, received eleven vials prepared by Dookhan and tested them, concluding that "they were positive for the presence of heroin." Both Dookhan and Saunders certified that the packages seized from the defendant's closet and person contained heroin.

         In 2013, Dookhan pleaded guilty to twenty-seven counts of criminal misconduct, including tampering with evidence, perjury, and obstruction of justice. The trial judge permitted the defendant substantial leeway in introducing evidence concerning Dookhan's arrest and prosecution for her criminal conduct at the Hinton lab, including the transcript of her guilty plea colloquy, [3] testimony from three of Dookhan's coworkers about her misconduct at the lab, [4] and State police Captain Robert M. Irwin's testimony about the criminal investigation of Dookhan's conduct.

         After Dookhan's wrongdoing came to light, the Commonwealth sent the eleven packages seized from the defendant to the laboratory at the Massachusetts State police forensic services group for retesting. Sarah Clark, a chemist at this laboratory, retested the substances in the packages and concluded that they contained heroin.

         At trial, the defendant argued that Dookhan's participation irrevocably damaged the Commonwealth's case, and specifically that the Commonwealth could not meet its burden of proving that the packages the Boston police seized from the defendant contained heroin before Dookhan gained access to them. The Commonwealth combatted this defense on two grounds: first, that there was no direct evidence that Dookhan altered the evidence in this case[5] and second, that the field test and circumstantial evidence proved "it was heroin on that day and it is heroin today." In this vein, the prosecutor argued:

"How do you know this is heroin? You know it because Officer England came before you and told you right after they seized this, back at the station he performed a field test. . . . And on that date, what happened? It showed the presence of heroin in these drugs. Ladies and ...

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