Heard: January 7, 2019.
Indictments found and returned in the Superior Court
Department on March 12, 2009. A motion to withdraw a plea of
guilty, filed on March 1, 2017, was heard by Robert C.
MarySita Miles for the defendant.
P. Kidd, Assistant District Attorney, for the Commonwealth.
Present: Agnes, Sacks, & Ditkoff, JJ.
defendant, Vaughn Lewis, pleaded guilty to possession of
heroin with the intent to distribute, G. L. c. 94C, § 32
(a.), and possession of cocaine with the intent to
distribute, G. L. c. 94C, § 32A (c0 . A Superior Court
judge allowed the defendant's motion to withdraw his
guilty plea with respect to the cocaine charge based on the
malfeasance of chemist Annie Dookhan,  where Dookhan was
one of the certifying analysts, but denied the motion with
respect to the heroin charge, where the heroin was tested in
a different laboratory by an analyst other than Dookhan. The
defendant now appeals from the partial denial of his motion.
Concluding that the judge acted within his discretion in
determining that the guilty pleas were divisible, and that
the defendant is not entitled to the conclusive presumption
of government misconduct based on the non-Dookhan heroin
certificates, we affirm.
on information provided by a confidential informant that the
defendant was operating a drug distribution service out of a
first-floor apartment, the New Bedford police began
conducting surveillance. After the informant made a
controlled purchase of cocaine from the defendant at the
apartment, an officer obtained a search warrant.
evening of February 18, 2009, officers conducted surveillance
in preparation for the execution of the warrant. The officers
observed the defendant exit the front door of the apartment
building and get into a car parked in front of the building.
The operator of the car drove it away, and the officers
followed. The officers stopped the car and placed the
defendant in custody. Pursuant to the warrant, an officer
searched the defendant and recovered $465, one plastic bag of
suspected heroin from his coat pocket, and a set of keys.
officers used the keys found on the defendant to gain access
to the first-floor apartment. During a search of the
apartment's kitchen, the officers found one plastic bag
of suspected heroin in the butter compartment of the
refrigerator, multiple baggies containing residue, and a
digital scale. In one of the bedrooms, the officers located
more baggies, a bottle of inositol that the officers believed
to be a cutting agent, a drug ledger, five tablets of
Klonopin, and a probation receipt, mail, and utility bills
that indicated the defendant was living in the apartment.
Outside the apartment, in a closet, the officers found a
plastic bag containing eleven individual bags of suspected
cocaine and two plastic bags of a suspected cutting agent
next to a dog collar and dog food. The defendant owned and
cared for dogs at his apartment. In the basement of the
building, officers recovered a loaded .22 caliber firearm and
a loaded .45 caliber firearm. A total of $2, 470 was seized
from the defendant as a result of the search.
that contained suspected cocaine and the two bags that
contained a suspected cutting agent were sent to the William
A. Hinton State Laboratory Institute (Hinton laboratory) for
analysis. The Hinton laboratory issued three drug
certificates. Each certificate identified the substances --
including the bags of a suspected cutting agent -- as
cocaine. Dookhan had signed each certificate as an assistant
analyst. The suspected heroin recovered from the
defendant's person and from the refrigerator in the
apartment was tested and certified as heroin by Michele
Manzello, an analyst at a State laboratory in Worcester
jury returned indictments charging the defendant with
trafficking in twenty-eight grams or more of cocaine, G. L.
c. 94C, § 32E (b) (2); possession of heroin with the
intent to distribute, subsequent offense, G. L. c. 94C,
§ 32 (b); possession of cocaine with the intent to
distribute, subsequent offense, G. L. c. 94C, § 32A (d);
possession of Klonopin, G. L. c. 94C, § 34; and four
firearm charges. Prior to the plea hearing, the
defendant moved to dismiss the firearm charges based on a
lack of evidence that the defendant possessed the weapons
found in the basement, a common area in the apartment
building. A print lifted from one of the firearms excluded
the defendant, and none of the items found near the firearms
was attributable to the defendant. The defendant's motion
to dismiss the firearm indictments was allowed without
objection from the Commonwealth. Immediately after, the
defendant pleaded guilty to possession of heroin with the
intent to distribute and possession of cocaine with the
intent to distribute in exchange for the elimination of the
subsequent offense portions of those charges and the entry of
a nolle prosequi on the possession of Klonopin charge and the
trafficking cocaine charge. Consistent with the parties'
agreement, the judge imposed concurrent sentences of five
years to five years and one day on the two convictions.
March 1, 2017, the defendant filed a motion to withdraw his
guilty plea to the cocaine charge because of Dookhan's
misconduct at the Hinton laboratory. At the hearing on the
motion on June 23, 2017, the Commonwealth announced that it
did not oppose the defendant's motion. At this point, the
defendant orally moved to dismiss the cocaine charge and to
withdraw his guilty plea to the non-Dookhan heroin
charge. The Commonwealth opposed the
withdrawal of the guilty plea on the heroin charge. On
October 26, 2017, a Superior Court judge, who also had been
the plea judge, allowed the motion to withdraw the guilty
plea to the ...