Opinion
18-P-1608
12-05-2019
COMMONWEALTH v. Derek J. ANDERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2008, on an indictment charging trafficking in cocaine, the defendant pleaded guilty to the lesser included offense of possession of a class B substance with the intent to distribute (count 1), and to a separate count of distribution of cocaine (count 2). As part of the plea bargain, the Commonwealth dismissed two counts of conspiracy to violate the controlled substance laws (counts 3 and 4).
On April 19, 2017, following the Supreme Judicial Court's decision in Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298 (2017), the Commonwealth's motion to dismiss count 1 with prejudice due to the egregious misconduct of Annie Dookhan, see Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014), was allowed. On May 3, 2018, the defendant filed a motion for new trial (to withdraw his guilty plea) in which he claimed that because count 1 was the "driving force" behind the plea deal as a whole, he is entitled to a new trial on count 2. On October 26, 2018, in a thorough and well-reasoned memorandum of decision, a Superior Court judge denied the motion, and the defendant appeals. We affirm.
To prevail on a motion to withdraw a guilty plea in a Dookhan-related matter, the defendant must demonstrate that (1) egregious government misconduct occurred in his case prior to the entry of his guilty plea, and (2) the misconduct influenced his decision to plead guilty. See Scott, 467 Mass. at 346-347. In matters "where Dookhan signed the certificate of drug analysis as either the primary or secondary chemist in the defendant's case, the defendant is entitled to a conclusive presumption that Dookhan's misconduct occurred in his case, that it was egregious, and that it is attributable to the Commonwealth." Id. at 338.
However, when a defendant pleads guilty to multiple charges at a plea hearing and some of those charges were later vacated because they involved drugs analyzed by Dookhan, those vacated convictions "will not affect any non-drug convictions or any drug convictions where Dookhan was not the primary or confirmatory analyst." Bridgeman, 476 Mass. at 328 n.26. In other words, in a case with multiple counts and multiple certificates of analysis, a defendant is not entitled to the conclusive presumption that egregious government misconduct occurred with respect to the certificates of drug analysis that Dookhan did not sign. See Commonwealth v. Resende, 475 Mass. 1, 14 (2016).
Despite the fact that Dookhan neither analyzed the cocaine relating to count 2, nor did she sign the certificate, the defendant nonetheless claims he is entitled to the conclusive presumption of egregious government misconduct to satisfy the first prong of Scott. According to the defendant, he is entitled to the presumption because a nexus exists between Dookhan's misconduct, which is presumed to affect the integrity of her analysis of the cocaine as to count 1, and his guilty plea on count 2. We disagree. As stated supra, the presumption is exclusive to certificates of analysis signed by Dookhan. See Resende, 475 Mass. at 14. See also Commonwealth v. Torres, 470 Mass. 1020, 1021 (2015) ; Scott, 467 Mass. at 354 (in cases that do not arise from Dookhan investigation, defendant will have burden to establish existence of egregious government misconduct in analysis of drugs). Cf. Torres, supra (conclusive presumption rule does not extend to cases where Dookhan merely signed certificate in role as notary public). Because the defendant has not asserted any basis other than the presumption to establish egregious governmental misconduct, he has failed to meet the first prong of the Scott analysis, and his motion for new trial was properly denied on this basis alone. See Id. at 344.
In Resende, Dookhan was an assistant analyst on one certificate and the plea on the related charge was vacated. However, the Supreme Judicial Court expressly declined to extend the conclusive presumption of misconduct to certificates she had not signed or, by extension, to charges related to those certificates. See Resende, 475 Mass. at 14.
Although the motion judge gave the defendant the benefit of the presumption, we are free to affirm the judgment on any ground that finds support in the record. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
Even if we assume the defendant had satisfied the first prong of the Scott analysis, that does not "relieve the defendant of his burden ... to particularize Dookhan's misconduct to his decision to tender a guilty plea." Scott, 467 Mass. at 354. He still "must demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. at 354-355. Moreover, the defendant must establish that a decision to reject the plea bargain "would have been rational under the circumstances." Id. at 356, quoting Commonwealth v. Clarke, 460 Mass. 30, 47 (2011).
The Commonwealth had an exceedingly strong case relative to the distribution charge in count 2, if for no other reason than the defendant sold the cocaine directly to an undercover police detective. Dookhan's misconduct did not detract from the factual basis of the plea because Dookhan did not test the drug evidence underlying count 2. See Scott, 467 Mass. at 341. In addition, it is hard to see how evidence of Dookhan's misconduct could have impeached any witness whose credibility was outcome determinative. See Commonwealth v. Curry, 88 Mass. App. Ct. 61, 63 (2015) (reiterating that Scott presumption of egregious government misconduct by Dookhan does not apply at trials where defendant seeks to impeach testing process at Hinton lab).
Moreover, it is not likely that plea counsel would have recommended against the very favorable plea terms offered on count 2 and the related conspiracy charge where the evidence of guilt was so strong. See Resende, 475 Mass. at 18-19. The evidentiary value of Dookhan's misconduct relative to count 2, which would merely have provided indirect impeachment evidence at best, did not outweigh the benefit of the terms of the plea. As the motion judge found, the distribution charge carried a State prison sentence of not less than two and one-half years and not more than ten years, or a house of correction sentence of not less than one year and not more than two and one-half years. The related conspiracy charge was punishable by imprisonment not to exceed the maximum punishment for the underlying offense. Thus, the defendant faced a mandatory minimum of one year of incarceration and the prospect of significant time on the nontainted charges. He received the minimum sentence possible: a two-and-one-half-year sentence in the house of correction, one year to serve and the balance suspended.
Furthermore, the motion judge was not required to accept the defendant's assertion that count 1, with its accompanying Dookhan misconduct, was the driving force behind his decision to plead guilty on count 2. Indeed, as the motion judge found, the two counts were entirely independent of each other. Count 1 related to the cocaine found in the defendant's house while count 2 related to the cocaine sold to the undercover detective. The coconspirators with respect to the two charges were different. The defense also employed different tactics for each count. The defendant brought both a motion to dismiss and to suppress the cocaine from count 1, but made no similar challenge to the cocaine related to count 2.
Nor was the motion judge required to credit the defendant's affidavit averring that the two counts were "indivisible." In fact, plea counsel did not claim in his affidavit that he considered the two counts to be "indivisible."
Finally, as the motion judge properly concluded, the defendant failed to establish that knowledge of Dookhan's misconduct would have influenced the defendant's decision to plead guilty to count 2 and to file the related conspiracy charge. The evidentiary value of Dookhan's misconduct simply did not outweigh the benefits of entering into the plea agreement. The motion judge did not abuse his discretion by denying the motion for new trial.
The defendant makes additional arguments, i.e., newly discovered evidence, prosecutorial misconduct, fairness, and the rule of lenity, which were not contained in his motion for new trial and not before the motion judge. In that posture, they are waived. See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004); Commonwealth v. Zhan Tang Huang, 87 Mass. App. Ct. 65, 75 (2015).
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Order denying motion for new trial affirmed.