Opinion
13-P-1948
02-27-2015
COMMONWEALTH v. JULIO MEDINA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court, the defendant was convicted of distribution of, and possession with intent to distribute, a class A controlled substance as a subsequent offense and as an habitual criminal, and two counts of committing a drug violation in a school zone. On appeal, he raises a variety of arguments that question the validity of his convictions, and the denial of his motion for new trial. We affirm in part and reverse in part.
1. Inference of misconduct. For the first time on appeal, the defendant claims the judge sua sponte should have instructed the jury that because Annie Dookhan was a chemist in this case, the defendant is entitled to an inference that misconduct occurred, and that it is attributable to the Commonwealth. We disagree. The defendant properly acknowledges that the "conclusive presumption that egregious government misconduct occurred" is limited to cases where a defendant seeks to vacate a guilty plea as a result of Dookhan's misconduct, and expressly does "not apply in a trial in which the defendant seeks to impeach the testing process utilized at the Hinton drug" laboratory. Commonwealth v. Scott, 467 Mass. 336, 352, 354 (2014). Nonetheless, because he argues that Dookhan's misconduct "belies reconstruction," he claims the judge should have instructed on the lesser remedy, i.e., permitting the jury to draw an inference of misconduct. However, we cannot hold that the judge erred (let alone created a substantial risk of a miscarriage of justice) by not giving such an instruction. This is true because not only does Scott implicitly reject the notion, but in this case that judge gave the defendant great latitude in his exploration of Dookhan's misconduct. In fact, the defendant's entire closing argument focused on the reliability of the drug analyses and Dookhan's misconduct.
2. Sufficiency of the evidence. The defendant claims there was insufficient evidence that properly identified the tested substances as heroin because of (1) Dookhan's role as the confirmatory chemist, (2) the possibility of tampering or contamination, and (3) the absence of evidence of a proper chain of custody. We disagree. The defendant's arguments go to the credibility of the evidence and the weight it should be accorded. Those are jury functions that do not affect the legal sufficiency of the evidence. See Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992); Commonwealth v. Gomez, 450 Mass. 704, 711 (2008). We are not persuaded by out-of-State authority (cited by the defendant) to the contrary. See State v. Roche, 114 Wash. App. 424, 435-440 (2002). In any event, the Commonwealth presented testimony that the substances were tested both before and after Dookhan's employment at the laboratory, and both tests confirmed that they were heroin. The jury were entitled to credit this evidence.
The defendant claims the judge erred in denying his motion for new trial for the same reasons. Given our resolution of this claim, the motion judge (who was the trial judge) did not abuse his discretion in denying the motion.
3. Closing argument. For the first time on appeal, the defendant claims the prosecutor's closing argument improperly urged the jury to speculate that Dookhan could not have tampered with the drug samples because she was the confirmatory chemist rather than the custodial chemist. The defendant maintains that this was improper because the prosecutor's argument is directly contradicted by the Supreme Judicial Court's statement in Scott, supra at 352, where the court stated that Dookhan's misconduct "belie[d] reconstruction." We disagree.
The reference in Scott to the inability to reconstruct the state of the evidence due to Dookhan's misconduct occurred in the context of "a narrow class of cases in which a defendant seeks to withdraw his or her guilty plea after having learned of Dookhan's misconduct." Scott, supra at 354. The premise, and the sui generis rule created in Scott, does not apply to cases (like this present one) where at trial the defendant seeks to impeach the testing process utilized at the Hinton drug laboratory. Id. at 352-354.
Furthermore, the prosecutor's argument was based on the evidence adduced at trial that Dookhan's misconduct occurred in her role as a custodial chemist, and not as a confirmatory chemist. The defense did not offer any evidence that Dookhan engaged in misconduct in her role as a confirmatory chemist, or in the defendant's case. As such, the prosecutor's argument was based on the evidence and the fair inferences to be drawn therefrom. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Even if there were contrary inferences to be drawn from the evidence and Dookhan's past misconduct, the prosecutor was entitled to marshal the evidence and to suggest inferences that the jury may draw in favor of guilt. See Commonwealth v. Drayton, 386 Mass. 39, 52 (1982).
4. Missing witness instruction. The defendant also claims that the judge abused his discretion by denying the defendant's request for a missing witness instruction where the Commonwealth did not call Stacey Feiden, a chemist, as a witness. We disagree, as there was simply no evidence that Feiden was unavailable to the defendant. In fact, Feiden had moved out of State, and was no longer a Commonwealth employee or within its control. See Commonwealth v. Lo, 428 Mass. 45, 51 (1998).
5. School zone convictions. As the Commonwealth admirably concedes, the defendant's school zone convictions must be reversed in light of Commonwealth v. Bradley, 466 Mass. 551, 552 (2013).
6. Conclusion. On the two counts of the indictment charging school zone violations, the judgments are reversed, the verdicts are set aside, and judgment shall enter for the defendant. The remaining judgments are affirmed, but the case is remanded for resentencing as the judge deems appropriate. The order denying the defendant's motion for new trial is affirmed.
So ordered.
By the Court (Kafker, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 27, 2015.