Opinion
No. 15–P–962.
12-09-2016
COMMONWEALTH v. Tyron DOUGLAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Tyron Douglas, appeals from the denial of his motion for a new trial in which he sought to withdraw guilty pleas. He claims that if he had known about misconduct that occurred at the William A. Hinton State Laboratory Institute (Hinton drug lab), there is a reasonable probability that he would not have pleaded guilty. We disagree and affirm.
1. Background. In January of 2009, the defendant was indicted by a Suffolk County grand jury on charges of possession of a class B substance with intent to distribute, second offense, violation of the controlled substances laws in proximity to a school, carrying a dangerous weapon, and resisting arrest. In February of 2010, the defendant pleaded guilty to all charges except the subsequent offense portion of the possession with intent to distribute charge and the school zone violation, both of which the Commonwealth agreed to dismiss. On the drug charge, the defendant was sentenced to twenty months in a house of correction, with credit for 578 days of pretrial detention. On the remaining charges, the defendant received a sentence of eighteen months on probation, from and after the committed sentence.
Ultimately, the defendant served eight days before being released to his probationary sentence.
Annie Dookhan, then a chemist at the Hinton drug lab, was the confirmatory chemist who signed the certificates of drug analysis in the defendant's case. In May of 2013, after having learned of Dookhan's misconduct during her tenure at the Hinton drug lab, the defendant filed a pro se motion for a new trial. A judge of the Superior Court appointed counsel, who thereafter filed an amended motion for a new trial. An evidentiary hearing was held in March of 2015, after which a second judge of the Superior Court denied the motion. This appeal followed.
In 2012, Dookhan admitted to tampering with evidence at the Hinton drug lab, failing to comply with quality control measures, forging the initials of an evidence officer, and "dry labbing." Commonwealth v. Scott, 467 Mass. 336, 339–341 (2014).
2. Scott analysis. The thrust of the defendant's argument is that he is entitled to withdraw his guilty pleas as a result of Dookhan's misconduct. The Supreme Judicial Court in Commonwealth v. Scott, 467 Mass. 336 (2014), set forth a protocol for analyzing motions for a new trial based on misconduct at the Hinton drug lab. Adopting the two prong approach set forth in Ferrara v. United States, 456 F.3d 278, 290 (1st Cir.2006), the court set forth the following standard: "when a defendant seeks to vacate a guilty plea as a result of underlying government misconduct, rather than a defect in the plea procedures, the defendant must show both that ‘egregiously impermissible conduct ... by government agents ... antedated the entry of his plea’ and that ‘the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.’ " Scott, supra at 346, quoting from Ferrara, supra. In conducting this analysis, we review only for significant error of law or other abuse of discretion, Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014), examining each prong, in turn.
a. Egregious misconduct by the government. The Scott court concluded that in each instance where Dookhan served either as the primary chemist or the confirmatory chemist, "the defendant is entitled to a conclusive presumption that egregious government misconduct occurred in the defendant's case." Scott, supra at 352. Here, because Dookhan was the confirmatory chemist, the defendant is entitled to this conclusive presumption.
b. Material influence on the defendant's decision to plead guilty. Under the second prong of the framework, the defendant has the burden "to particularize Dookhan's misconduct to his decision to tender a guilty plea." Id. at 354. That is to say, the defendant must demonstrate, based on a totality of the circumstances, "a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. at 355. Scott identified a number of factors relevant to this analysis, including: "(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea, (2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative, (3) whether the evidence was cumulative of other evidence already in the defendant's possession, (4) whether the evidence would have influenced counsel's recommendation as to whether to accept a particular plea offer, and (5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement." Id. at 355–356. Also relevant to the analysis is the strength of any defense that would have been pursued at trial, whether the defendant was indicted on additional charges, and whether other special circumstances were present. Id. at 356–357.
On the facts present here, the question boils down to whether, knowing of Dookhan's misconduct, it is reasonably probable that the defendant would have rejected the plea agreement he reached with the Commonwealth in order to risk the uncertainties of trial. On the basis of the strength of the other evidence against the defendant and the highly favorable nature of his plea agreement, we answer that question in the negative.
Apart from the drug certificates, the evidence against the defendant was strong. At the time of his arrest, he was secreting multiple individually wrapped packets filled with a white rock substance in his mouth. Based on his training and experience, the arresting officer noted that the size and manner of packaging of the substance was consistent with the way crack cocaine is sold. During the arrest, the defendant attempted to swallow the packages in order to prevent the police from recovering them. He was partially successful, commenting that he wished the police officers luck because they would not be able "to get [him] on distribution with only three bags." Taken together, this suggests the defendant was aware that the substances were illegal and would incriminate him. See Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) ( "Proof that a substance is a particular drug need not be made by chemical analysis and may be made by circumstantial evidence").
Perhaps most detrimental to the defendant is the evidence contained within his medical records. The defendant admitted to hospital personnel that he swallowed multiple bags of cocaine and that he dealt drugs to pay his rent and provide for his siblings. The admissions were supported by positive drug tests conducted when the defendant was first admitted to the hospital. The records also indicate that the defendant "passed crack in [his] stool" and "passed some stones, but not the bag." While the defendant claims in his motion that he was merely a cocaine user and had consumed cocaine on the day of his arrest, the motion judge was within his discretion to reject those self-serving claims.
Also without merit is the defendant's claim that the medical records would have been inadmissible at a trial. " Section 79 of G.L. c. 233 permits the admission in evidence, in the judge's discretion, of certified hospital records' so far as such records relate to the treatment and medical history' with the proviso that ‘nothing therein contained shall be admissible as evidence which has reference to the question of liability.’ " Commonwealth v. Dube, 413 Mass. 570, 573 (1992), quoting from G.L. c. 233, § 79. See Mass. G. Evid. § 803(6)(B) (2010). Here, it is apparent that the records were primarily directed to the defendant's medical history and treatment and not to his criminal liability. See Commonwealth v. Dargon, 457 Mass. 387, 394 (2010). Indeed, "the physician's record of the patient's own account of his medical history generally would be admissible because of the presumptive reliability of the patient's statement to a physician consulted for treatment." Bouchie v. Murray, 376 Mass. 524, 529 (1978).
In sum, notwithstanding the fact that Dookhan signed the certificates as the confirmatory chemist, evidence of her misconduct would not have detracted from the factual bases supporting the defendant's guilty pleas. Furthermore, apart from Dookhan's malfeasance, there is nothing in the record to suggest that the defendant had a substantial ground of defense that he would have pursued at trial.
The prospective defense that the defendant possessed the cocaine only for personal use was weak in view of his conduct during the arrest and his admissions to hospital personnel.
Finally, contrary to the defendant's argument, he did receive a significant benefit from pleading guilty rather than proceeding to trial. The defendant faced a minimum mandatory five year sentence as a subsequent offender, followed by a two year minimum mandatory sentence on the school zone charge. His decision to plead guilty resulted in the imposition of a far more lenient aggregate sentence than the judge could have imposed following the defendant's likely convictions after trial, given the strength of the Commonwealth's evidence. See Commonwealth v. Mills, 436 Mass. 387, 400 n. 9 (2002) (judge may consider defendant's willingness to admit guilt as factor in more lenient sentencing).
3. Conclusion. The judge did not abuse his discretion or otherwise err in determining that the defendant failed to satisfy his burden of demonstrating a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct.
The defendant claims that all of his convictions must be vacated because the plea agreement was part of a global resolution. Because we affirm the denial of the motion to withdraw guilty pleas, we need not reach this issue.
Order denying motion to withdraw guilty pleas affirmed.