Opinion
20-P-852
06-16-2021
COMMONWEALTH v. Israel CORTEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a Superior Court judge's orders denying his motions to withdraw his guilty plea and for postconviction discovery. The judge, who was also the plea judge, concluded that the defendant had shown neither ineffective assistance of counsel that would warrant withdrawal of the plea nor a sufficient basis for postconviction discovery. Seeing no abuse of discretion or other error of law in the judge's orders, we affirm.
Background. In 2001, the defendant was indicted on charges of trafficking in heroin; trafficking in cocaine; possessing heroin; possessing procaine (a class E substance); and conspiracy to traffic in heroin, cocaine, or both. The drugs seized at the time of the defendant's arrest were tested in May of 2001 at the laboratory later known as the William A. Hinton State Laboratory Institute (Hinton lab or lab). The drug certificates, attesting that the substances seized contained heroin, cocaine, or procaine, were signed by one or more of lab analysts Della Saunders, Peter Piro, and Mai Ngoc Tran, but not by Annie Dookhan, who was not employed at the Hinton lab until two and one-half years later. See note 2, supra.
See Commonwealth v. Scott, 467 Mass. 336, 337-342 (2014) (discussing misconduct of chemist Annie Dookhan at Hinton lab). See also Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 301, 303 & n.6 (2017) (discussing Inspector General's investigation concluding that Dookhan, who began her employment at Hinton lab in November 2003, was "sole bad actor" at lab).
The defendant was indicted in July of 2001 but not immediately apprehended; an arrest warrant was issued, and the defendant was not arraigned until June of 2009. The defendant then filed a motion to suppress the drug evidence, which was scheduled for a hearing in December of 2012. At the hearing, the parties informed the judge that they had agreed on a proposed disposition: the cocaine trafficking charge would be reduced to a charge of possession of cocaine with intent to distribute, to which the defendant would plead guilty; the remaining four charges would be nol prossed; and the defendant would be sentenced to one year in the house of correction, deemed served.
The prosecutor explained to the judge that the disposition reflected some weaknesses that the Commonwealth had recently found in its case, including that the drugs had been destroyed; there had been "problems at the [Hinton] [l]ab with personnel who [were] not working currently at the lab"; and the Commonwealth's case against the defendant was not as strong as was its case against a codefendant, who had pleaded guilty soon after his indictment. Defense counsel agreed that this was "a fair assessment."
For convenience we refer to the substances simply as drugs, rather than as alleged drugs, with the understanding that the defendant does not concede the validity of the analysts' conclusions.
Different and possibly inaccurate terms were used at the hearing to refer to a laboratory or laboratories, but the parties now agree that the lab in question was the one at which Annie Dookhan later worked and that was later renamed the Hinton lab.
The codefendant had been the target of the investigation that led to the seizure of the drugs from a hotel room out of which the codefendant made sales; the defendant here "was seen snorting drugs in [the] hotel room surrounded by quite a bit of drugs ... [s]o it would have been a joint venture theory."
The prosecutor stated that the analysts who had tested the drugs were on leave due to the closure of the lab but "can be summonsed," although the process would be difficult. The parties agreed that the drug testing had occurred several years before Dookhan came to the lab. They also informed the judge that the defendant had other pending cases and so, if the proposed disposition were accepted, he would not immediately be released. The judge agreed to accept the disposition, and, after a full and careful colloquy, the defendant pleaded guilty and was sentenced as described above.
In 2018, the defendant, with new counsel, moved to withdraw his guilty plea, asserting that plea counsel had been ineffective in counseling the plea (1) without seeking exclusion or suppression of the drug certificates and analysts' testimony, (2) without recognizing that the analysts could not testify if the case were to go to trial, and (3) without informing the defendant of these issues. Accompanying the motion was an affidavit from the defendant stating that had he known of "the weakness of the Commonwealth's evidence against [him, he] would not have tendered the plea." The motion materials also stated that the defendant was, at the time of the motion, awaiting sentencing on Federal charges, and that his conviction here for possession of a controlled substance with intent to distribute would result in a substantial Federal sentencing enhancement, whereas a conviction for simple possession would not. Finally, the defendant moved for postconviction discovery regarding the analysts' availability to testify while on leave.
Also attached to the motion were copies of the 2001 drug certificates that each bore a rubber-stamped notation, "Destroyed, Dec. 14, 2005, Division of Food & Drugs, Drug Control Program."
Neither the motion to withdraw the guilty plea nor the motion for postconviction discovery was included in the defendant's record appendix. The latter motion, but not the former, was belatedly included in the addendum to the defendant's reply brief. These omissions are unacceptable. See Mass. R. A. P. 18 (a) (1) (A) (v) (b), as appearing in 481 Mass. 1637 (2019).
After an evidentiary hearing at which plea counsel was the sole witness, the judge issued a detailed memorandum making findings of fact and denying both motions. The judge found that at the 2012 hearing, plea counsel had told the defendant that the drugs had been destroyed, that the Commonwealth was willing to resolve the case that day, and that alternatively the defendant could go forward on the pending motion to suppress. The judge found that the defendant had not wanted to "prolong the matter" and instead "just wanted it to end."
The judge further found that plea counsel could not recall whether he had discussed with the defendant a motion to suppress based on the destruction of the drugs, but plea counsel had previously worked with the prosecutor present at the 2012 hearing and had no reason to doubt her stated ability to summons the analysts despite their being on leave. The judge also found that transcripts submitted by the Commonwealth indicated that one of the analysts, Saunders, had testified for the Commonwealth both (1) on a date before the 2012 hearing while she was on leave and (2) on a date after the 2012 hearing when she was no longer employed at the lab. The judge therefore saw no need for postconviction discovery on the analysts' availability to testify. The judge also concluded that motions to suppress the drug certificates and testimony would have been futile, so that plea counsel did not perform deficiently in failing to file such motions.
The judge added in a footnote that, consistent with the Commonwealth's transcript submissions, she personally had presided over cases while the lab was closed at which lab analysts including Saunders, "presumably on administrative leave, were summonsed to court and testified about their analyses." The defendant is correct that a judge may not rely on her private knowledge as evidence of facts that are not judicially noticeable. See Furtado v. Furtado, 380 Mass. 137, 140 n.1 (1980). However, as in Furtado, "[t]he judge appears to have set out these extraneous facts as a matter of background; they are not essential to [her] finding [on the disputed issue] on this record." Id.
Discussion. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b)." Commonwealth v. Resende, 475 Mass. 1, 12 (2016). Such a motion is "committed to the sound discretion of the judge." Id., quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014) Therefore, we review "to determine whether the judge abused that discretion or committed a significant error of law." Resende, supra, quoting Scott, supra. "Particular deference is to be paid to the rulings of a motion judge who served as the [plea] judge in the same case." Commonwealth v. Lastowksi, 478 Mass. 572, 575 (2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 6 (2016).
To prevail on his claim of ineffective assistance of counsel, the defendant must establish that plea counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where a motion would have been unlikely to succeed and would not have accomplished anything material for the defense, counsel's failure to file such a motion is not ineffective assistance. See Commonwealth v. Lally, 473 Mass. 693, 703 n.10 (2016).
1. Failure to move to suppress. The defendant argues that counsel performed deficiently in failing to move to suppress the drug certificates as a remedy for the Commonwealth's destruction of the underlying drug evidence. "A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden ... to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [lost or destroyed evidence] would have produced evidence favorable to his cause" (emphasis altered; citations omitted). Commonwealth v. Williams, 455 Mass. 706, 716-717 (2010). The judge concluded that the defendant had not established any such reasonable possibility, and we agree. As the judge reasoned, the defendant would have had to show "a reasonable possibility that the destroyed substances were not heroin, cocaine, or procaine," and "[t]he mere fact that the testing occurred at the [Hinton lab] is insufficient to satisfy this burden where the testing occurred before Annie Dookhan's employment at the [l]ab began."
The defendant, while acknowledging that the Inspector General's report on the lab concluded that Dookhan was the "sole bad actor," points out that the report found a variety of other problems at the lab, including deficiencies in oversight, training, protocols, consistency of testing practices, and quality control measures. But the report covered the period from 2002 to 2012; it did not address whether any problems at the lab existed in May of 2001, when the drugs from this defendant's case were tested, before Dookhan began working at the lab.
On appeal, the defendant seeks to bolster his showing as to analyst Saunders's potential unreliability by asking that we take judicial notice of certain Superior Court filings and orders spanning 2017-2021 concerning discovery into Saunders's conduct at the lab. Those filings and orders were made in Commonwealth vs. Escobar, Suffolk Superior Ct., No. 0984CR10059. See Commonwealth v. Escobar, 479 Mass. 1010, 1011 & n.4 (2018). We decline to do so. Any further evidence regarding Saunders's conduct is most appropriately submitted and considered in the first instance in the context of another motion for a new trial.
Were we to take judicial notice of such materials, we would also take notice of the motion judge's recent conclusion that the Commonwealth's discovery responses "provide[d] Escobar with no support for his claim of malfeasance by Saunders (or, for that matter, the [Inspector General]) or a failure by the Commonwealth to investigate her." Commonwealth vs. Escobar, supra, Scheduling Order at 9 (May 10, 2021).
The defendant also asks us to take judicial notice of certain filings and orders in Commonwealth vs. Simmons, Supreme Judicial Ct. for Suffolk County, No. SJ-2021-117. Those materials provide no more reason than do the materials from Commonwealth vs. Escobar, supra, to doubt the integrity of testing performed by Saunders, or other analysts at the lab, in 2001. We decline to take notice of those materials, for the reason already stated as to the Escobar materials.
The analysts' conduct aside, the defendant invokes the principle that "where the Commonwealth has acted in bad faith or recklessly, resulting in the loss or destruction of evidence, the defendant may be independently entitled to a remedy," even without meeting the "reasonable possibility, based on concrete evidence" test discussed above. Williams, 455 Mass. at 718, quoting Commonwealth v. Neal, 392 Mass. 1, 12 (1984). But such cases are rare. See Commonwealth v. Gliniewicz, 398 Mass. 744, 747-749 (1986) (performance of destructive testing, with authorization of assistant district attorney, in violation of express pretrial agreement, warranted suppression of test results); Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 24 (1993) ("extraordinary case" where "the culpability of the Commonwealth amounted to a rare case of gross negligence and, in fact, [came] perilously close to supporting an inference of bad faith" and warranted reversal of judgment). There is nothing comparable here. The record shows only that on December 14, 2005, -- more than four years after an arrest warrant for the defendant had issued, and three and one-half years before he was arraigned -- the drug certificates were rubber-stamped with a "Destroyed" notation, suggesting, if anything, that such destruction was a somewhat routine matter at that time. See note 6, supra.
The defendant maintains that the destruction of the drugs here violated the Commonwealth's mandatory discovery obligations and therefore was comparable to the violation of the express pretrial agreement in Gliniewicz, as discussed supra. He relies on Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501 (2005), which requires discovery as to "[m]aterial and relevant ... tangible objects," including drug samples. See Commonwealth v. Cotto, 471 Mass. 97, 114 (2015). But if a violation of this obligation, without more, warranted suppression or some stronger remedy, there would have been no need for the Williams court to reaffirm that relief ordinarily requires, at a minimum, a threshold showing that "access to the [lost or destroyed evidence] would have produced evidence favorable to [the defendant's] cause." Williams, 455 Mass. at 716-717. See id. at 718 (detailing further considerations governing availability of relief).
Finally, the defendant argues for the first time on appeal that the destruction of the drugs violated G. L. c. 94C, § 47A, which among other things "requires the Commonwealth to obtain a court order each and every time it wishes to destroy narcotics evidence." Cotto, 471 Mass. at 115 n.16. The defendant apparently contends that plea counsel performed deficiently in failing to exploit the claimed violation. This argument not having been made in the defendant's motion to withdraw his guilty plea, the judge had no opportunity to consider whether the failure to follow the procedures of § 47A prejudiced the defendant; if so, what remedy might have been appropriate; and whether plea counsel's failure to pursue this issue constituted ineffective assistance. We therefore decline to resolve those issues now.
Had the Commonwealth sought a § 47A destruction order, the court would have been required (1) to "order the commonwealth to give notice by certified or registered mail to the known defendant and his attorney," and (2) "promptly ... hold a hearing on the petition." G. L. c. 94C, § 47A, third par. Here, at the time of destruction in 2005, the defendant's exact whereabouts appear to have been unknown, and counsel had not yet been appointed for him in this case. Had the court held a hearing, it could then have issued a destruction order so long as representative samples were first analyzed "by a chemist of the department of [S]tate police or by a chemist at the University of Massachusetts medical school who shall issue a signed certificate, on oath, of the results of such analysis," and such certificates would have been admissible in court as "prima facie evidence of the composition and quality of such controlled substances." § 47A, fourth par. Such analysis and issuance of signed certificates had already been done here, by State-employed chemists, albeit not ones employed by the precise agencies specified.
2. Failure to exploit analysts' unavailability. The defendant argues that plea counsel performed deficiently by failing to recognize that, had the defendant insisted on going to trial, the lab analysts either (1) would not have been authorized to testify, because they were on administrative leave; or (2) could not have been meaningfully cross-examined, making their testimony inadmissible. The defendant asserts that plea counsel should have exploited these circumstances to negotiate an even better plea agreement. We are not persuaded.
The defendant did not make this second argument to the judge in his motion to withdraw his guilty plea.
First, as a legal matter, none of the cases the defendant cites from the employment context, suggests that an employee on administrative leave is precluded from complying with a summons to testify about matters arising out of her employment before she was placed on leave. And, as a factual matter, the judge found, based on transcript excerpts submitted by the Commonwealth, that Saunders -- both while on leave and after her employment at the lab ended -- had testified in criminal cases. Although the defendant observes that the excerpts do not show Saunders testifying specifically about a drug certificate, his suggestion that she and the other analysts could not have done so is purely speculative.
The excerpts also suggest that another lab employee, Daniella Frasca, testified while on administrative leave. The record further indicates that such analysts were required to "remain accessible to [the State police] via telephone and mail for the duration of the leave."
Equally speculative is his suggestion that there would have been no way for the analysts, while the lab was closed for investigation, to obtain access to documents underlying their original testing. That they were under instructions not to "enter the [lab] during this period of administrative leave unless otherwise directed," shows neither that they categorically could not enter the lab nor that other personnel could not have done so and made copies of the relevant materials for the analysts' use in court.
Moreover, the defendant has not shown that access to such materials would have been so essential to cross-examination of the analysts that, without such access, they could not have been meaningfully confronted and so their testimony could have been excluded altogether on the defendant's motion. To be sure, the Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), referred to information that may be disclosed in cross-examination, such as "what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed." Id. at 320. The Court also referred to the value of confrontation "in testing analysts' honesty, proficiency, and methodology." Id. at 321. But the Court did not rule that analysts must have access to any particular documents to testify about such matters. Nor does the defendant here point to any other decision establishing such a requirement for analysts testifying about their own analyses. Cf. Commonwealth v. Greineder, 464 Mass. 580, 595-596, cert. denied, 571 U.S. 865 (2013) (more stringent requirements for meaningful cross-examination where expert gives opinion based on data developed by nontestifying analyst).
In sum, the defendant has not shown that the analysts could not have testified. Thus, plea counsel did not perform deficiently by not seeking to exploit their supposed unavailability.
3. Other issues. The defendant argues that "because the drug certificates were inadmissible" and because the analysts "were unavailable and unprepared," the Commonwealth's remaining evidence was so weak that (1) there was a reasonable probability that he would not have pleaded guilty but for plea counsel's errors, and (2) it would have been rational for him to reject the proposed disposition and insist on going to trial. But these points go to the second prong of Saferian -- whether the defendant was prejudiced by plea counsel's supposedly deficient performance. See Lastowksi, 478 Mass. at 576-577. Because we agree with the judge's conclusion that counsel's performance was not deficient in the respects argued, we need not discuss any question of prejudice.
Finally, we review the judge's denial of the motion for postconviction discovery for abuse of discretion. See Commonwealth v. Camacho, 472 Mass. 587, 598 (2015). To prevail on the motion, the defendant was required to "demonstrate that it [was] reasonably likely that such discovery [would] lead to evidence possibly warranting a new trial," id., equating here to evidence possibly warranting allowance of his motion to withdraw his guilty plea. The defendant sought discovery concerning the analysts' availability to testify while they were on leave. Because the judge found as fact that Saunders was available despite her leave status, and the defendant made no showing as to the other analysts, the defendant failed to meet Camacho's "reasonably likely" standard, id., and the judge did not abuse her discretion in denying the motion.
Orders denying motion for new trial and for postconviction discovery affirmed.