Opinion
No. 15–P–174.
12-06-2016
COMMONWEALTH v. Junior UBRI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted after a jury trial in the Superior Court of trafficking in heroin over eighteen grams, possession of cocaine with intent to distribute, and two school zone violations. On appeal, he argues that the trial judge erred by precluding him from introducing evidence of the unreliability of testing done at the William A. Hinton State Laboratory Institute (Hinton lab or lab) due to misconduct by former chemist Annie Dookhan and by quashing a subpoena to a State police captain who had investigated Dookhan's crimes. The defendant also argues that the judge erred by denying his motion to suppress the substances seized from him just before he was arrested and by proceeding with the trial in his absence. We affirm.
Discussion. 1. Exclusion of evidence of Annie Dookhan's malfeasance. The defendant argues that he should have been permitted to introduce evidence of Dookhan's now well-documented egregious misconduct as a chemist at the Hinton lab between 2003 and 2012, even though she had not been involved in the analysis of the substances seized from him. The defendant wished to show that Dookhan's very presence at the lab during the period in question rendered the drug testing conducted in this case unreliable, either because her presence demonstrated general failures in management or supervision at the lab, or because she could have tampered with the samples in his case before they were analyzed. See Commonwealth v. Torres, 470 Mass. 1020, 1021–1022 (2015).
See generally Commonwealth v. Scott, 467 Mass. 336, 337–342 (2014) (detailed discussion of Dookhan's misconduct and ensuing investigation).
a. Management and supervision failures. The defendant argues that Dookhan's unfettered access to the evidence safe, her having accessed samples that were not assigned to her, her unreasonably high number of tested samples, and proof that she falsified test results and forged other chemists' initials, combine to call the entire lab's reliability into question.
On several occasions during trial, defense counsel sought to elicit testimony from lab personnel about Dookhan's misconduct, drawing objections from the prosecutor which were sustained. The judge did not err in determining that the mere fact of Dookhan's presence in the lab, without more, was not relevant to the reliability of the testing of the samples in this case. Compare Commonwealth v. Gardner, 467 Mass. 363, 369 (2014) (Dookhan's role as notary public on certificate of analysis too "remote and tangential" to show that she may have tampered with evidence in defendant's case). Similarly, the judge properly quashed the subpoena to the State police captain, where the defendant failed to show that the captain had any personal knowledge of whether Dookhan's malfeasance could have affected the testing in this case.
Moreover, the defendant was permitted to elicit evidence that outlined a variety of lapses in the procedures at the lab, including that it was not accredited, it did not undergo outside audits, one chemist had complained about problems and his complaints had not been adequately addressed, there was inadequate supervision and oversight, and there was no written protocol for the evidence room and evidence safe. Even without mentioning Dookhan's name, the defendant had ample opportunity to attempt to demonstrate the lab's overall unreliability.
b. Tampering with samples taken from defendant. Nor was the defendant unfairly prevented from attempting to show a possible break in the chain of custody of his samples, and thus possible tampering by Dookhan, at the lab. The arresting detective testified that he placed the substances seized from the defendant in bags, wrote certain details about the case on the bags, heat-sealed the bags, and provided them to the police department's property officer, who then placed his initials across the heat seal. The analyzing chemist testified that police departments submitted heat-sealed bags to the lab, and that in this case he received these bags with heat-seals intact, cut them open, tested the substances and submitted a sample for GC–MS testing, and then resealed the substances and the original bags in larger bags and heat-sealed and signed them.
Both the detective and the chemist identified the respective bags at trial. The detective specifically identified his handwriting on the original bags, with the property officer's initials across the heat seal. The chemist identified his own notations and signature on the larger bags which he had then heat-sealed.
On cross-examination of the chemist, defense counsel asked whether the chemist had personal knowledge of the police department property officer who wrote his or her initials across the heat seal of the original bags before they were transported to the lab. The chemist admitted that he did not know who initialed the heat seals, but testified that each bag and its seal were intact when he received them. Defense counsel posed the question, "So now let's say somebody tampered with the evidence. They can just heat seal it with some initial and you wouldn't know about it, would you?" The prosecutor's objection was sustained. At sidebar, the judge explained that the question was improper and speculative, because there was no evidence that Dookhan ever tampered with any other chemist's samples.
Defense counsel had just elicited testimony that every chemist at the lab possessed heat-sealing equipment, so his question was aimed at suggesting that another chemist may have opened a bag, tampered with the contents, and then heat-sealed the bag again and placed some initials across the seal.
This question was different in nature from defense counsel's other attempts to elicit testimony about Dookhan, because the question probed whether anyone at the lab—not just Dookhan—could have tampered with the sample in this case. Nevertheless, we need not resolve whether it was error to sustain this particular objection, because the question was answered by the chemist's prior testimony. In effect, the chemist had already admitted that he would be unaware of any possible prior tampering with a bag that came to him heat-sealed, because he had no knowledge of who had initialed the original heat seals. The error, if any, was not prejudicial, because the testimony sought would have been cumulative of other evidence. See Commonwealth v. Braley, 449 Mass. 316, 326 (2007).
Moreover, the arresting detective had already testified that he recognized the police department property officer's initials across one of the original heat seals, indicating that it had not been tampered with at the lab. Defense counsel could have cross-examined the detective on this point, in an effort to show the possibility of such tampering, but did not do so.
2. Motion to suppress. We reject the defendant's contention that neither the stop nor the patfrisk and seizure of the narcotics was justified. As the motion judge found, the police corroborated virtually every detail of the informant's tip regarding the defendant and his behavior, and the informant had regularly supplied reliable information in the past. In our view, when the police approached the defendant's vehicle, they had probable cause, i.e., knowledge of "enough facts and circumstances ‘to warrant a person of reasonable caution in believing’ " that the defendant was in possession of drugs and about to make a delivery. Commonwealth v. Cast, 407 Mass. 891, 895 (1990), quoting from Commonwealth v. Gullick, 386 Mass. 278, 283 (1982). Certainly, as the motion judge concluded, once the officers observed the defendant's furtive gestures toward his left breast pocket, the officers had probable cause to search him. See, e.g., Commonwealth v. Va Meng Joe, 425 Mass. 99, 106 (1997).
3. Trial in absentia. The defendant was present on the Friday the jury were empanelled, but not yet sworn, and the defendant was "placed at the bar for trial." After empanelment, the judge stated in open court that trial was to commence the following Monday at 9 A.M. On Monday, the defendant did not appear. Defense counsel informed the judge that he had left three voice mail messages for the defendant, without response. The judge took a short recess. Upon return, the probation officer reported that at about 9:15 P.M. the previous evening, a warrant had been issued by "ELMO" (the probation department's electronic monitoring system) because the defendant had cut off or tampered with the electronic monitoring device he was required to wear. The judge also had the clerk check the hospital closest to the defendant's home, and was informed that the defendant had not been admitted.
Later that morning, the judge further inquired about the defendant's whereabouts, and the prosecutor informed her that the police were searching for him.
In these circumstances, the judge properly found that the defendant had "intentionally and deliberately absented himself" from the trial without cause, and properly denied the defendant's motion for a mistrial. This finding was made after "some measure of inquiry and investigation" in accordance with Commonwealth v. Muckle, 59 Mass.App.Ct. 631, 639 (2003). The judge appropriately told the jury, "You may notice that the defendant is not present. You are not to speculate or have discussions concerning that." See id. at 640. Under Commonwealth v. Elizondo, 428 Mass. 322, 325 (1998) ( "The defendant's trial began when he was placed at the bar for trial"), there was no error in proceeding without the defendant after the jury had been empanelled but before they had been sworn. See Mass.R.Crim.P. 18(a)(1), 378 Mass. 887 (1979).
"The judge should grant a recess for an expeditious investigation into the cause of the absence and for the results of a search for the defendant," and should hold a voir dire to create a record, then make a finding as to whether the defendant's absence is voluntary and without cause. Commonwealth v. Baro, 73 Mass.App.Ct. 218, 222 (2008), citing Muckle, supra. In addition to telling the jury that they should not speculate as to the reasons for the defendant's absence, the judge should also instruct them not to draw any adverse inferences against the defendant. Muckle, supra at 640. To the extent that the judge's actions in this case did not strictly adhere to the Muckle protocol, any error was trivial, and the defendant has not shown any prejudice.
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Judgments affirmed.