Opinion
16-P-877
07-25-2017
COMMONWEALTH v. Antonio MONTEIRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Superior Court, the defendant, Antonio Monteiro, was convicted of numerous drug charges, assault and battery upon a public employee, and resisting arrest. The defendant's subsequent motion for new trial was denied. A panel of this court affirmed the judgments and order denying the motion for new trial. Commonwealth v. Monteiro, 82 Mass. App. Ct. 1105 (2012).
The defendant was convicted of trafficking in cocaine over fourteen grams and two counts of a school zone violation.
The defendant's request for further appellate review was denied, 463 Mass. 1107 (2012).
On December 17, 2012, the defendant filed a second motion for new trial. On June 3, 2014, an evidentiary hearing was conducted before a special magistrate. Nicole Medina and Kate Corbett, the two chemists from the William A. Hinton Laboratory Institute (Hinton Lab) who analyzed the cocaine, testified at the hearing. The special magistrate was decommissioned prior to issuance of a decision on the motion and the case was assigned to a judge of the Superior Court. The parties filed a joint motion to accept the transcript of the June 3, 2014, hearing in lieu of a rehearing, which was allowed. The judge denied the second motion for new trial and this appeal followed. The defendant claims that misconduct at the Hinton Lab and newly discovered evidence require a new trial. We disagree.
Background. On September 24, 2007, a Cambridge police officer saw two men exit a red automobile and go to the trunk. The defendant, who was the driver, opened the trunk and reached inside. Upon seeing the police officer approaching the automobile, the passenger motioned to the defendant. The defendant then closed the trunk and drove off, failing to stop at a stop sign. The police officer stopped the car, the defendant opened the trunk, and the officer noticed a strong odor of marijuana. The police officer discovered a back pack in the trunk containing drug packaging materials, a substance believed to be marijuana, and a large rock of what the officer believed to be cocaine. As the officer attempted to place the defendant under arrest, he struck the officer's arm and fled on foot. At trial, the defendant stipulated to the admission of the drug certificates and argued that he did not constructively possess the drugs found in the back pack.
Government misconduct. We review the judge's denial of a motion for a new trial for an abuse of discretion. Commonwealth v. Scott, 467 Mass. 336, 344 (2014) (Scott ). "The decision whether to allow a motion for a new trial lies within the discretion of the judge and will not be reversed unless ‘manifestly unjust or unless the trial was infected with prejudicial constitutional error.’ " Commonwealth v. Martin, 467 Mass. 291, 316 (2014), quoting from Commonwealth v. Nieves, 429 Mass. 763, 770 (1999).
The defendant claims that a combination of factors entitles him to a presumption of government misconduct as set forth in Scott, and accordingly, a new trial. We disagree. In order to obtain relief, the defendant was required to show a nexus between the alleged government misconduct and his case. Scott at 348. This he failed to do. Here, Annie Dookhan had no role in the testing of the cocaine. Additionally, the Office of the Inspector General (OIG) found no evidence that Dookhan tampered with drug samples that were assigned to other chemists. Commonwealth v. Resende, 475 Mass. 1, 13-14 (2016).
Here, the chain of custody log book was missing. The defendant argues this would have been a real factor in the jury's deliberations in this case. We disagree.
Notwithstanding, relying on Scott, the defendant claims that it is impossible for him to demonstrate a nexus between governmental misconduct and his case. He argues that several factors contribute to this impossibility. At the hearing before the special magistrate, Medina testified that her initials were forged on a tune report, unrelated to this case, although she did not know who forged them. Corbett also testified at that same hearing that Dookhan had forged her initials on a batch sheet in an unrelated case, in January, 2011. Here, the log book, which documented the chain of custody for the cocaine, was missing. As a result, the defendant contends, Medina and Corbett were unable to confirm the validity of their signatures in the log book. However, this claim is unavailing as it is based on mere speculation and devoid of any factual basis in the record suggesting that the testing in his case was compromised. Indeed, both Medina and Corbett confirmed their signatures on the drug certificates in this case. They also testified to the security of the samples on which they worked and opined that there was nothing in this case that appeared to be wrong with the testing. Further, the defendant was unable to demonstrate how the forgeries on the batch and tune sheets in 2011 related to the testing of the substances in his case in 2007. Accordingly, the denial of the motion for new trial was proper. See Commonwealth v. Laguer, 410 Mass. 89, 94 (1991).
A tune report confirms that the gas chromatography and mass spectrometry machine (GC/MS) was operating within acceptable parameters.
A batch sheet is an internal document maintained at the Hinton Lab which specifies the order in which the vials of the samples are arranged on the GC/MS.
Newly discovered evidence. "A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The defendant rests this claim on the report of the OIG as to the credentials of Corbett. The OIG report found that Corbett's curriculum vitae (CV) was inaccurate. Specifically, Corbett's CV reflected that she had a bachelor of science degree in chemistry from Merrimack College, which she did not. In this case, Corbett's CV was not provided, and as the analyzing chemist she was not required to provide one. While the judge found that Corbett had a bachelor of arts and not a bachelor of science degree, she credited Corbett's testimony. She found that Corbett had completed all coursework to obtain a bachelor of science degree and that she had no intention of misleading anyone. Moreover, the judge found that Corbett was likely mistaken in her understanding that she had a bachelor of science degree in chemistry "based on statements made to her by faculty."
Corbett had completed coursework in organic chemistry, inorganic chemistry, quantitative analysis, instrument analysis, physical chemistry, physics, and calculus.
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Relying on the inaccuracy of her CV, the defendant claims that Corbett gave perjurous testimony in other cases and this newly discovered evidence warrants a new trial. The characterization of Corbett's testimony as perjury is misplaced. See G.L.c. 268, § 1. As with the unrelated forgeries and missing log book, the defendant's claims are based on mere speculation and do not give rise to a new trial.
Assuming, without deciding, that the lack of a degree in chemistry constituted newly discovered evidence, the defendant cannot demonstrate that it would "probably have been a real factor in the jury's deliberations." Commonwealth v. Ellis, 475 Mass. 459, 476-477 (2016), quoting from Commonwealth v. Cowels, 470 Mass. 607, 616 (2015). "Manifest injustice is not shown merely by producing evidence that might, if presented, have influenced the trier of fact to reach a different result." Commonwealth v. Brown, 378 Mass. 165, 171 (1979) (citations omitted). "Rather, the evidence ‘must be weighty and of such nature as to its credibility, potency, and pertinency to fundamental issues in the case as to be worthy of careful consideration.’ " Ibid., citing Davis v. Boston Elevated Ry., 235 Mass. 482, 495 (1920). Newly discovered evidence that tends merely to impeach the credibility of a witness will rarely, if ever, meet the standard for allowing a new trial. Commonwealth v. Ortiz, 393 Mass. 523, 537-538 (1984), citing Commonwealth v. Cassesso, 360 Mass. 570, 576 (1971).
Corbett testified that the requirements for employment at the Hinton Lab when she was hired in 2005 were that she hold a bachelor of science degree in chemistry or that she hold a bachelor of arts degree with two or more years of experience. Corbett met the latter requirement. She had a bachelor of arts degree and had worked from September, 2003, through August, 2005, at Sensor Technologies in Shrewsbury. Accordingly, even without a degree in chemistry, Corbett's remaining credentials permitted her to work as a chemist at the Hinton Lab.
Moreover, Medina was the primary chemist and Corbett was the confirmatory chemist in this case. The primary chemist conducts preliminary bench tests including color, microcrystalline, gas chromatography, infrared spectroscopy, ultraviolet spectroscopy, macroscopic, and microscopic tests. Commonwealth v. Resende, 475 Mass. at 7-8. By contrast, the confirmatory chemist's job is "very static" and does not involve any "creativity." Ibid. The confirmatory chemist uses a gas chromatography and mass spectrometry machine (GC/MS) that has the ability to produce instrument-generated documentation of test results. See Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 574 (2014). Corbett was qualified to be a chemist, and there is no evidence that she was not trained to properly operate the GC/MS and interpret its data. Further, based on the totality of evidence at trial (including the defendant running from the police, the packaging of the suspected substance, the officer's preliminary identification of the substance, the primary chemist's conclusions regarding the substance, and the nature of the confirmatory chemist's role), it is unlikely that the evidence of her missing degree would have been a real factor to the jury. See Commonwealth v. Ellis, 475 Mass. at 476-477.
Order denying second motion for new trial affirmed.