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12-P-1215 Appeals Court
COMMONWEALTH vs. JUSTIN C. GASTON.
No. 12-P-1215.
Suffolk. May 7, 2014. - October 31, 2014.
Present: Cypher, Kafker, & Hanlon, JJ.
Controlled Substances. Firearms. Constitutional Law, Conduct
of government agents. Due Process of Law, Disclosure of
evidence, Conduct of prosecutor. Practice, Criminal, New
trial, Disclosure of evidence, Conduct of government
agents, Conduct of prosecutor. Evidence, Disclosure of
evidence, Firearm, Certificate of drug analysis.
Complaints received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on June 25 and July 3,
2008.
After transfer to the Central Division of the Boston
Municipal Court Department, the cases were tried before Mark H.
Summerville, J., and a motion for a new trial was heard by
Eleanor C. Sinnott, J.
William M. White, Jr., for the defendant.
Vincent J. DeMore, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Justin Gaston, appeals from the
denial of a motion for new trial and from his convictions by a
2
jury on two counts of carrying a firearm without a license,
G. L. c. 269, § 10(a); one count of unlawful possession of
ammunition, G. L. c. 269, § 10(h); one count of possession of a
class B substance with the intent to distribute ("crack"
cocaine), G. L. c. 94C, § 32A; and one count of unlawful
possession of a loaded firearm charged in a separate complaint,
G. L. c. 269, § 10(n).1,2 The defendant argues that the evidence
was insufficient to support the charge of possession with intent
to distribute and the firearms and ammunition charges. The
defendant also argues that his motion for new trial, which was
based on a claim of newly discovered evidence and prosecutorial
nondisclosure regarding problems in the William A. Hinton State
Laboratory Institute (Hinton lab) involving chemist Annie
Dookhan, should have been allowed. We conclude that the
evidence was sufficient for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt on all of the charges
but that the motion for new trial should have been allowed as to
the drug charge.
1
We note that the defendant incorrectly identified the
loaded firearm charge in his brief as simple possession and the
Commonwealth incorrectly identified the counts on which the
defendant was convicted.
2
The defendant's direct appeal does not appear to have been
consolidated with his appeal from the denial of the motion for
new trial, but because the parties have addressed both appeals
in a single brief, we will respond in a single decision.
3
Facts. Police officers in the Boston drug control unit
obtained a search warrant for an apartment in a six-family
building located in Dorchester. They executed the warrant on
June 18, 2008, and initially tried to gain entry by knocking
loudly on the apartment door and announcing their presence. The
police heard the sound of people "scurrying" inside the
apartment, but no one answered the door. Using a battering ram,
the police struck the door eight or nine times until it finally
gave way.
Upon gaining entry, the defendant fled over a balcony,
dropped to the ground and ran. The defendant, a six-foot,
three-inch man weighing about 210 pounds, was readily
distinguishable from a second male suspect, who was about five
feet tall, and who was also running from the rear of the
building about ten feet away from the defendant.3 The defendant
attempted to jump over a fence but became entangled and fell.
To free himself, the defendant pulled off a headphone, the wire
of which had been hooked on the fence, and continued to run. He
was apprehended by one of the officers who were chasing him.
The police retraced the defendant's path and located a bag
containing what appeared to be ten rocks of crack cocaine
individually packaged in small plastic bags and the headphones
3
The second suspect was not apprehended.
4
the defendant had been wearing when he became hooked on the
fence.
The apartment where the search warrant was executed
consisted of five rooms, including a living room, two bedrooms,
and a kitchen. Police located Joel Moore in the smaller
bedroom, which contained a day bed; it was in disarray with
clothes scattered all over and piled on the bed. The room also
contained a bureau, on top of which was a black backpack. An
officer unzipped the backpack and saw a handle and trigger guard
of what was later identified as a Taurus nine millimeter
semiautomatic pistol (Taurus pistol). The officer also found
two pieces of mail from the Social Security Administration
addressed to the defendant at a different address in Dorchester,
a letter addressed to Eddie Gaston, a box of plastic sandwich
bags, a loaded High Point .380 caliber semiautomatic pistol
(High Point pistol), a single loose round of ammunition, and
assorted items of very large male clothing. The officer also
found a scale with residue on it, a mirror, and a razor blade in
that bedroom.
In the second, larger bedroom, another officer found one
live round of .380 ammunition and a firearm barrel cleaning rod
in the top drawer of a bureau. He also recovered mail, a money
order, and identification in the name of Cedric Motin, the
apartment lessee; $151 in United States currency; and a spent
5
shell casing. The bedroom also contained a bed and a closet
with clothing. Motin, who is about five-feet, six-inches tall
and weighs about 140 pounds, returned to the apartment during
execution of the warrant and spoke to the police.
The Taurus pistol, the High Point pistol, both magazines,
and all of the ammunition were examined by the police for
fingerprints. Five latent prints were recovered from those
items. Three prints were recovered from the Taurus pistol but
were of insufficient quality to compare them to anyone else's
prints. Two latent prints were recovered from the magazine of
the Taurus pistol, and one of those prints was of sufficient
quality to exclude the defendant and match the print to an
individual named Dashawn Hinton.
Discussion. 1. Motion for new trial. The defendant
argued in his motion for new trial that his inability to access
Dookhan's pervasive and egregious misconduct until after his
trial and the prosecutor's failure to disclose the misconduct
prevented him from challenging her role as the confirmatory
chemist. The motion judge, who was not the trial judge,
reasoned that because Dookhan was merely the confirmatory
chemist there was no substantial risk that the jury would have
reached a different conclusion had they been made aware of her
misconduct because the primary chemist had independently tested
the same sample and given her opinion at trial that the
6
substance was cocaine. The defendant appeals claiming, in
essence, that his motion for new trial should have been allowed
on the common-law ground of newly discovered evidence and the
constitutional claim of prosecutorial nondisclosure. See
Commonwealth v. Scott, 467 Mass. 336, 359 (2014).
As is often repeated, we review an appeal from the "denial
of a motion for new trial 'to determine whether there has been a
significant error of law or other abuse of discretion.'"
Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014), quoting
from Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013).
"Where, as here, a judge hearing a motion for new trial was not
the trial judge, we regard ourselves in as good a position as
the motion judge to assess the trial record." Commonwealth v.
Laguer, 448 Mass. 585, 593 (2007) (citation omitted). In
addition, when a new trial motion is constitutionally based, as
is one of the claims at issue here, "this court will exercise
its own judgment on the ultimate factual as well as legal
conclusions." Commonwealth v. Salvati, 420 Mass. 499, 500
(1995), quoting from Commonwealth v. Tucceri, 412 Mass. 401, 409
(1992).
After the briefs were submitted in this case, the Supreme
Judicial Court issued a series of cases involving challenges to
guilty pleas pursuant to Mass.R.Crim.P. 30(b), as appearing in
435 Mass. 1501 (2001), on grounds that the pleas were entered
7
neither knowingly nor voluntarily as the result of misconduct by
Dookhan. We know of no published decision in Massachusetts in
which the appeal was from a conviction after trial, rather than
from a guilty plea. The lead case in the recent spate of
decisions, however, includes a lengthy discussion regarding
challenges from a conviction after trial, which is instructive
in analyzing the issues presented here.4 See Scott, 467 Mass. at
358-362.
At the outset, the court in Scott detailed the method for
testing illicit narcotics at the Hinton lab and Dookhan's role
in those tests. Id. at 338-342. The court explained that
Hinton lab protocols required two levels of testing on each
substance submitted for testing. "Primary tests [were] simple
bench top tests [that] have only moderate discriminatory power
[to detect a specific substance] . . . . [S]econdary, or
confirmatory, tests were conducted [with] sophisticated
instrumentation [that] have high discriminatory power, and . . .
4
Additionally, in four rescript opinions, the Supreme
Judicial Court vacated the trial judge's decision on the
defendant's motion to withdraw his guilty plea, concluded that
the first prong of the analysis in Ferrara v. United States, 456
F.3d 278, 290 (1st Cir. 2006), had been established, and
remanded each case to allow the trial judge to consider whether
the defendant can show a reasonable probability that had he
known of the allegations against Dookhan at the time of his
plea, he would have refused to plead guilty and insisted on
going to trial. See Commonwealth v. Rodriguez, supra;
Commonwealth v. Davila, 467 Mass. 1005 (2014); Commonwealth v.
Bjork, 467 Mass. 1006 (2014); Commonwealth v. Torres, 467 Mass.
1007 (2014).
8
produce instrument-generated documentation of test results."
Id. at 340 (quotations omitted). When testing of a sample was
complete, a certificate of drug analysis was prepared and signed
by the primary chemist and the secondary or confirmatory chemist
on one line labeled "Assistant Analyst" and their signatures
were notarized, typically by another chemist. Id. at 340-341.
"Although it is assumed that on the line labeled 'Assistant
Analyst' the signature further to the left is that of the
primary chemist and the signature further to the right is that
of the secondary chemist, nothing on the face of the certificate
confirms that assumption." Id. at 353 n.9. In this case,
Dookhan was the confirmatory chemist.
In addition, the Scott court specifically identified
Doohkan's wrongdoing. In her capacity as a primary chemist,
Dookhan lied about having tested all the samples in a group,
when she had only tested a select few, and she converted
"negatives to positives." As a secondary chemist she falsified
other chemists' initials on reports intending to verify the
proper functioning of the instrumentation and lied about having
verified the proper functioning of the instrumentation. Id. at
341. Her misconduct continued for years, and touched thousands
of cases that even she is unable to specifically identify.
Because her widespread conduct as a government agent had the
capacity to "undermine[] the very foundation of [a defendant's]
9
prosecution," id. at 348, the court aptly described it as
"cast[ing] a shadow over the entire criminal justice system."
Id. at 352. In response the court concluded that in each
instance that Dookhan served as the assistant analyst 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."5 Ibid.
Relying on the reasoning in Scott, it is clear that the
initial requirements of both theories presented in this appeal
have been established. With respect to the claim of newly
discovered evidence, because the breadth and depth of Dookhan's
misconduct was not uncovered until July, 2012, five months after
the defendant's trial, we can readily conclude it is newly
discovered. See Commonwealth v. Grace, 397 Mass. 303, 306
(1986) (evidence must "have been unknown to the defendant or his
counsel and not reasonably discoverable by them at the time of
trial"); Scott, 467 Mass. at 359. In addition, because there is
no question that Dookhan, a government agent, affirmatively
identified illicit substances that she had not properly tested,
5
The Supreme Judicial Court has taken the view that
Dookhan’s wrongdoing in her roles as the primary and the
confirmatory chemist was equally egregious. Examination of the
briefs and record in the following cases indicates that Dookhan
was either the primary or confirmatory chemist in all of them:
Scott, 467 Mass. at 346 (primary chemist); Rodriguez, 467 Mass.
1002 (primary chemist); Davila, 467 Mass. 1005 (confirmatory
chemist); Bjork, 467 Mass. 1006 (primary chemist); Torres, 467
Mass. 1007 (confirmatory chemist).
10
those representations are exculpatory because they undermined
the foundation of the defendant's prosecution and, in turn,
triggered the requirement of prosecutorial disclosure. See
Tucceri, 412 Mass. at 412 (prosecution obligated to deliver
exculpatory evidence to defense); Commonwealth v. Martin, 427
Mass. 816, 824 (1998) ("A prosecutor's obligations extend to
information in possession of a person who has participated in
the investigation or evaluation of the case and has reported to
the prosecutor's office concerning the case"); Commonwealth v.
Lykus, 451 Mass. 310, 327 (2008). See generally Scott, 467
Mass. at 347-348.
Thus, the focus in this appeal is the second part of the
analysis in each claim, specifically prejudice or materiality.
Id. at 360. In either a common-law claim of newly discovered
evidence or a constitutional claim of prosecutorial
nondisclosure, the defendant must demonstrate essentially the
same requirement, namely that there is a "substantial risk that
the jury would have reached a different conclusion had the
evidence been admitted at trial," ibid., quoting from Grace, 397
Mass. at 306. See Tucceri, 412 Mass. at 406, 413. "The judge
need not be convinced that the jury's verdict would have been
different but rather that the evidence would have been a 'real
factor' in the jury's deliberations." Scott, 467 Mass. at 360.
See Tucceri, 412 Mass. at 414 ("It is enough that, on a full and
11
reasonable assessment of the trial record, the absent evidence
would have played an important role in the jury's deliberations
and conclusions, even though it is not certain that the evidence
would have produced a verdict of not guilty"). This requirement
has been equated with the second prong of "the Saferian
ineffective assistance of counsel standard." Scott, 467 Mass.
at 360, quoting from Tucceri, 412 Mass. at 406, 413.
Here, it is clear that Dookhan's role as the confirmatory
chemist was significant. Only the confirmatory chemist uses
sophisticated instrumentation in the testing process that has
both a high discriminatory power to identify the substance and
the ability to produce instrument-generated documentation of
test results. Scott, 467 Mass. at 340-341. The simple bench
top tests conducted by the primary chemist provide neither
safeguard. Ibid. Without the secondary test, only the results
of the simple bench top tests conducted by the primary chemist
are available. By definition these tests are less
discriminatory, and it is far from clear that such tests are
sufficiently reliable to be admitted. If admitted, standing
alone, discriminatory weaknesses provide substantial fodder for
cross-examination. See Commonwealth v. Fernandez, 458 Mass.
137, 147-151 (2010). Here, proof of Dookhan's wrongdoing as it
related to the defendant's case provides its own shadow of
reasonable doubt about the nature of the substances tested. In
12
sum, we have no difficulty concluding that evidence of the
"'particularly pernicious' government misconduct" by Dookhan
would have been a real factor in the jury's deliberation on the
narcotics charges. Scott, 467 Mass. at 347, quoting from
Ferrara v. United States, 456 F.3d 278, 291 (1st Cir. 2006).
2. Sufficiency of the evidence. a. The drugs. The
defendant argues that there was insufficient evidence to
establish that he intended to distribute the ten rocks of crack
cocaine that were found shortly after his apprehension and that
the most the Commonwealth could prove was possession. Applying
the familiar standard articulated in Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979), we conclude that the evidence,
when viewed in the light most favorable to the Commonwealth, was
sufficient to satisfy a rational trier of fact of each element
of the offense beyond a reasonable doubt. Here, the quantity of
the drugs, the packaging of the drugs, and the paraphernalia,
such as the scale and the particularly incriminating box of
plastic sandwich bags found in the backpack, bolstered by the
defendant’s attempted flight and the absence of any smoking
paraphernalia either in the apartment or in the defendant's
possession, provided ample evidence for the trier of fact to
conclude that the defendant was not merely in possession of the
drugs, but intended to distribute them. See Commonwealth v.
Little, 453 Mass. 766, 771-772 (2009); Commonwealth v. Sepheus,
13
468 Mass. 160, 167-168 (2014); Commonwealth v. Montalvo, 76
Mass. App. Ct. 319, 324, 327 (2010).
To the extent the defendant suggests the evidence is
lacking because no expert police testimony was offered, the
argument fails to recognize that such testimony is not required.6
See Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427-428
(1985) (no expert testimony was offered and court made clear
intent to distribute is factual question which may be proved by
circumstantial evidence); Commonwealth v. Gonzalez, 47 Mass.
App. Ct. 255, 257-259 (1999) (same).
b. The guns and ammunition in the backpack. The defendant
argues that because Moore was in the smaller bedroom where the
backpack was found, only conjecture or guesswork would permit a
fact finder to choose between two alternative propositions,
namely, that Moore had stuffed the guns (and presumably the
ammunition) into the defendant's backpack when he heard the
police approaching, or that the guns belonged to the defendant.
The difficulty with the claim is that the alternatives are not
equally supported by the evidence.
Apart from Moore's presence in the room with the zipped
backpack, there is no evidence that ties him to it or the
contents therein. Police testimony is devoid of any evidence
6
The trial judge did not permit the Commonwealth to elicit
such testimony from the police officer.
14
that Moore was moving quickly or even near the backpack when
they entered the room, and he was not arrested or charged in
this case. Moreover, one gun was buried at the bottom of the
backpack, underneath clothing, and the other placed on the top
of the other contents. It is hardly reasonable to think that
Moore had the time, the interest, or even the motive to collect
and stuff into the backpack all the items found therein, or that
he would have buried only one of the weapons and left the other
sticking out near the top. In any event, the evidence was
sufficient to demonstrate that the backpack and its contents --
which included letters addressed to the defendant at the address
he gave to the booking officer in this case and clothing that
could have been the size he wore -- belonged to him and that he
left it behind in his rush to escape apprehension by the police.
Conclusion. The portion of the order denying the
defendant's motion for new trial on the drug charge is reversed,
the judgment thereon is reversed, and the verdict set aside.
The portion of the order denying the motion for new trial on the
firearms and ammunition charges is affirmed, as are the
judgments on those charges.
So ordered.