Opinion
15-P-307
04-20-2016
COMMONWEALTH v. MARK WEBB.
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
In 2010, a Superior Court jury found the defendant guilty of drug trafficking, a school zone violation, and firearm and ammunition offenses; a different panel of this court affirmed the judgments on direct appeal. Commonwealth v. Webb, 82 Mass. App. Ct. 1111 (2012). Chemist Annie Dookhan notarized one of two certificates of drug analysis introduced at the defendant's trial, and upon which his drug convictions were based. In 2012, following revelations of Dookhan's misconduct at the William A. Hinton State Laboratory Institute (the Hinton lab), see generally, Commonwealth v. Scott, 467 Mass. 336 (2014), the defendant moved for postconviction discovery, funds to retain an expert, a new trial, and an evidentiary hearing. The defendant argued that newly discovered evidence regarding Dookhan's malfeasance and a lack of oversight at the Hinton lab was exculpatory and cast serious doubt on the justice of his convictions. A judge other than the trial judge (the motion judge) denied the motions in written decisions, and the defendant appeals. We affirm.
The defendant also argues his first appellate attorneys were ineffective.
Discussion. "[W]e 'examine the motion judge's [denial of the motion for a new trial or evidentiary hearing] only to determine whether there has been a significant error of law or other abuse of discretion.'" Commonwealth v. Weichell, 446 Mass. 785, 799 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See Commonwealth v. Stewart, 383 Mass. 253, 257 (1981) ("The decision on a motion for a new trial, as well as the decision whether to decide the motion on the basis of affidavits or to hear oral testimony, is left largely to the sound discretion of the judge"). We review denial of the postconviction discovery motions for an abuse of discretion. Id. at 261.
1. Wrongdoing at the Hinton lab. The judge concluded that the defendant was not entitled to discovery of information regarding the Hinton lab and a 2010 report prepared by the Office of Inspector General (OIG) following its investigation into Dookhan's misconduct (the OIG report), because "Dookhan did not test the substances underlying the defendant's conviction [and t]he OIG's Report explicitly expels any finding that chemists other than Dookhan committed intentional malfeasance." The defendant does not challenge these findings, which support the motion judge's conclusions that revelations of Dookhan's misconduct are neither exculpatory nor material to the defendant's case, and "that the defendant was unable to 'present a meritorious ground for a new trial.'" Commonwealth v. Mitchell, 438 Mass. 535, 555 (2003), quoting from Mass.R.Crim.P. 30(c)(4) and (5), as appearing in 435 Mass. 1502 (2001), and citing Reporters' Notes to Rule 30(c)(5), 43D Mass. Gen. Laws Ann. at 393 (West 2002). There was no abuse of discretion in denying the defendant further discovery. See Commonwealth v. Arriaga, 438 Mass. 556, 569-570 (2003).
We treat the judge's failure to address the defendant's motion for funds to retain an expert as an implicit denial. Commonwealth v. Dubois, 451 Mass. 20, 29 (2008).
Nor did the judge err in denying the motion for a new trial or evidentiary hearing. The defendant is not entitled to a presumption that egregious misconduct occurred in his case, see Commonwealth v. Scott, 467 Mass. at 352 n.8, and, in light of the OIG report's conclusion that Dookhan was the sole bad actor at the Hinton lab, "the defendant [cannot] demonstrate a sufficient nexus between governmental misconduct and his conviction[s] to require reversal." Commonwealth v. Curry, 88 Mass. App. Ct. 61, 63 (2015). "Both a common-law claim of newly discovered evidence and a constitutional claim of prosecutorial nondisclosure require the defendant to make some showing of prejudice or materiality," which the judge found he had not done. Commonwealth v. Scott, supra at 360. The defendant is not entitled to a new trial merely because information regarding the Hinton lab could have been used to challenge the credibility of the Commonwealth's witnesses, see Commonwealth v. Toney, 385 Mass. 575, 581 (1982) ("Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial"), and "[o]n the basis of the record before us, . . . we conclude that there was no error or abuse of discretion in the judge's rulings on the discovery motions, the motion [for an evidentiary hearing], or the defendant's motion for a new trial [on the basis of wrongdoing at the Hinton lab] because no substantial issue was raised," Commonwealth v. Stewart, 383 Mass. at 257.
2. Ineffective assistance. The defendant also sought a new trial on the basis of ineffective assistance of prior appellate counsel, for their failure to raise on direct appeal the denial of the defendant's pretrial motion to dismiss on speedy trial grounds. See Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). While failure to raise the issue on direct appeal resulted in waiver, the motion judge had discretion to consider it if, "upon sober reflection, it appear[ed] that a miscarriage of justice might otherwise result." Commonwealth v. Curtis, 417 Mass. 619, 626 (1994). See Commonwealth v. Watson, 409 Mass. 110, 112 (1991). The motion judge did not address the issue in his memorandum of decision and order denying the defendant's motion for a new trial, and instead "decide[d] that none of the issues presented [by the defendant in support of his motion for a new trial] has merit." Curtis, supra. No miscarriage of justice could have occurred.
Orders denying motions for postconviction relief affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 20, 2016.