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14-P-63 Appeals Court
COMMONWEALTH vs. TRAVIS CURRY.
No. 14-P-63.
Suffolk. March 6, 2015. - August 14, 2015.
Present: Grainger, Meade, & Fecteau, JJ.
Controlled Substances. Constitutional Law, Conduct of
government agents, Fair trial. Due Process of Law, Fair
trial. Practice, Criminal, Conduct of government agents,
Loss of evidence by prosecution, Instructions to jury.
Fair Trial. Evidence, Certificate of drug analysis,
Scientific test, Chain of custody.
Indictments found and returned in the Superior Court
Department on April 20, 2011.
The cases were tried before Patrick F. Brady, J.
Jacob B. Stone for the defendant.
Vincent J. DeMore, Assistant District Attorney, for the
Commonwealth.
GRAINGER, J. The defendant appeals from his convictions of
unlawful distribution of heroin in violation of G. L. c. 94C,
§ 32, and possession with the intent to distribute heroin in
2
violation of G. L. c. 94C, § 32A.1 He asserts that misconduct at
the William A. Hinton State Laboratory Institute forensic drug
laboratory (Hinton drug lab) deprived him of his due process
right to a fair trial and requests that we reverse his
convictions and dismiss the indictments with prejudice. We
affirm.
Background. We recite the facts as the jury could have
found them. On February 9, 2011, Boston police arrested the
defendant after an undercover officer purchased two bags of
heroin for sixty dollars from the defendant at his home. The
defendant was arrested in shorts, a T-shirt, and sandals. A
search of his person uncovered an additional bag of heroin. At
the time of the defendant's arrest, officers asked the
defendant's mother to bring him additional clothing. The mother
complied, bringing the defendant a pair of jeans and a
sweatshirt, which the defendant later identified as belonging to
him. Before allowing the defendant to wear the clothes,
officers searched the pockets for any potential weapons. The
search of his pants revealed an additional fifteen bags of
1
The defendant was sentenced to concurrent sentences of two
years to two years and one day in State prison. The defendant
was also charged as a subsequent offender and with drug
violations in a school zone in connection with each of these
charges, all of which were later dismissed by the Commonwealth.
The defendant was charged with, and acquitted of, possession
with intent to distribute cocaine and a related school zone drug
violation.
3
heroin, nine bags of "crack" cocaine, a knife, and six dollars.
The defendant denied any knowledge of the drugs found in his
pants.
All of the drug evidence was marked, turned over to the
evidence officer, and transmitted to the Hinton drug lab. The
substances were tested in April, 2011, by Annie Dookhan,2 serving
as the primary chemist, and thereafter by a secondary chemist,
identified as heroin and cocaine, and returned to the Boston
police pending trial. The misconduct at the Hinton drug lab was
discovered in June, 2011, and the lab was closed in August,
2012. Before the lab was closed, but after Dookhan's misconduct
surfaced, the drugs in this case were tested before trial by
another chemist, Della Saunders. That testing in May, 2012,
also identified the substances as heroin and cocaine.
The Commonwealth provided the defendant with all
appropriate discovery, including that relating to the misconduct
at the Hinton drug lab. That subject was fully explored at
trial and, indeed, was central to the defense strategy.
Discussion. The defendant has asserted numerous claims on
appeal, all of which are variations on the argument that the
Commonwealth did not satisfy its burden, substantively or
2
For a detailed discussion of Dookhan's misconduct and the
investigation into the Hinton drug lab, see Commonwealth v.
Scott, 467 Mass. 336, 337-342, 349-350 (2014).
4
procedurally, to prove that substances seized from him were
illegal drugs.
1. Due process. The defendant asserts that the
government's misconduct at the Hinton drug lab deprived him of
his due process right to a fair trial. As this claim was not
raised below, we review for a substantial risk of a miscarriage
of justice. Commonwealth v. Monteagudo, 427 Mass. 484, 487
(1998). The precise issue raised here, involving a defendant
whose trial was conducted after the discovery of Dookhan's
misconduct, appears to be one of first impression. However, we
are guided by the Supreme Judicial Court's decision in
Commonwealth v. Scott, 467 Mass. 336 (2014) (Scott).
Scott dealt with the appropriate remedy for defendants who
wished to withdraw their guilty pleas to drug charges in cases
where Dookhan was either the primary or secondary chemist and
her misconduct was unknown at the time of the plea. The court
held that because the defendant in that case had entered a
guilty plea3 without knowledge of Dookhan's misconduct and could
show that Dookhan was one of the chemists assigned to his case,
the defendant was entitled to a presumption of government
misconduct in the consideration of his motion to withdraw the
3
"A motion to withdraw a guilty plea is treated as a motion
for a new trial under Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2001)." Commonwealth v. Furr, 454 Mass. 101,
106 (2009).
5
plea. That presumption would not, however, result in the
withdrawal of a guilty plea unless the defendant could also
demonstrate that he would not have pleaded guilty had he known
of the misconduct. Scott, 467 Mass. at 344-355. The court
specifically limited the favorable presumption to the context of
a motion for a new trial: "[T]his presumption shall not apply
in a trial in which the defendant seeks to impeach the testing
process utilized at the Hinton Drug lab, including those new
trials conducted following the grant of a defendant's motion to
withdraw a guilty plea pursuant to our holding in this case."
Id. at 354.
In the context of this case, the import of Scott is that a
defendant who elects a trial will have the opportunity to
present evidence, but not the benefit of a presumption, of
misconduct in his or her particular case. That is precisely
what this defendant received: a trial in which his defense
focused on impeaching the reliability of the drug evidence
presented by the Commonwealth.
We conclude, on this record, that the defendant did not
demonstrate a sufficient nexus between governmental misconduct
and his conviction to require reversal. See Scott, 467 Mass. at
350-351. See also Monteagudo, supra at 486. He asserts that
the fact that the misconduct occurred during the time his
samples were initially tested at the lab is alone sufficient to
6
provide the required nexus. However, the samples in this case
were also subject to testing by another chemist, Della Saunders,
who testified at the defendant's trial.4 The jury were entitled
to rely on the physical evidence and testimony presented by
Saunders, and to find that the defendant possessed illegal drugs
when he was arrested.
2. Additional arguments. The defendant's remaining
arguments may be characterized as variations on a theme. He
asserts that Dookhan's misconduct requires reversal of his
convictions because the Commonwealth cannot establish a chain of
custody, because her actions rendered the evidence insufficient,
and because the circumstances here are tantamount to a loss of
4
As detailed in Scott, 467 Mass. at 339-341, and at the
trial of this defendant, there is no evidence that Dookhan's
misconduct included mixing samples seized from different
suspects, notwithstanding the defendant's assertions to the
contrary at trial and on appeal. Testimony at trial revealed
that Dookhan, acting as the primary, i.e., the initial testing
chemist, would draw individual samples from different cases when
she believed them to be the same substance. She would conduct
the required testing on a handful of these samples, and then
attribute the results to all of those she had drawn ("dry
labbing"). She would then prepare small vials (aliquots) from
each case for secondary testing. In some cases, when her
surmise -- that each of the untested samples was identical to
the others -- proved to be wrong after a secondary chemist
tested the aliquots, she would add a known substance to a new
aliquot to ensure that a subsequent retest would "turn[]
negative samples into positive samples," id. at 339, and confirm
her report. There was no testimony that the drugs from which
samples were originally drawn were ever adulterated or combined.
Without that showing, the subsequent testing by Della Saunders
of the drugs seized from the defendant in this case provided
admissible evidence on which a fact finder could rely.
7
evidence. Each of these legal theories relies on the same
factual misapprehension, i.e., an apparent misunderstanding of
Dookhan's practices.
a. Sufficiency of the evidence. The defendant asserts
that Dookhan's misconduct made it impossible for the
Commonwealth to prove beyond a reasonable doubt that the
substances seized from the defendant were heroin. He claims
that Dookhan's conduct prevented the Commonwealth from meeting
its burden to show that Saunders tested unadulterated
substances. As stated, the defendant was provided with ample
opportunity to challenge Saunders's results, but there was no
evidence that Dookhan adulterated the original sample. At trial
Saunders identified the substances as heroin and cocaine and
testified further that the weights of the substances she tested
in the defendant's case were consistent with a "retest." Viewed
in the light most favorable to the Commonwealth, Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979), the evidence of drug
composition was sufficient to support the defendant's conviction
beyond a reasonable doubt.
b. Chain of custody. The defendant asserts that because
the Commonwealth could only identify the markings on the sample
bags but could not distinguish the contents of one sample bag
from another, the substances in the bags were not properly
authenticated as those that were seized. However, as detailed
8
above, there was no evidence presented at trial that Dookhan
mixed substances from different suspects or that she adulterated
anything other than samples after they were extracted from the
substances seized from suspects. The chain of custody of the
substances on which Saunders's subsequent testing was conducted
was properly entered in evidence at trial.5 The jury properly
could conclude that there was no break in the chain of custody.
Any argument regarding Dookhan's misconduct presented by the
defendant in order to establish "arguable weaknesses in the
chain of custody" goes to the weight, not admissibility, of the
drug evidence. Commonwealth v. Colon, 33 Mass. App. Ct. 304,
309 (1992). See Commonwealth v. Penta, 423 Mass. 546, 556
(1996).
5
The officers who handled the substances seized from the
defendant testified as to their role in the chain of custody.
That testimony indicated that when the officers recovered any
substance, they turned it over to the evidence officer for the
operation, who placed the evidence in a sealed bag, marked it
with the incident date, report number, his initials, and a
notation indicating where the substances were found. The
evidence officer then placed each of those separate sealed bags
in a larger envelope, which was marked with the officer's name,
the defendant's name, and the incident number. That envelope
was then placed in the evidence safe at the police station. From
there, the envelope was transported to the drug lab for testing
and returned to the evidence safe when testing was completed.
The evidence stayed in that safe until the drugs were
transported to the lab again for subsequent testing by Della
Saunders. Once tested, the evidence was again returned to the
evidence safe at the police station until the investigating
officers transported it to court for trial. At trial, each
person in the chain of custody was able to identify the unique
markings on the packages to identify the substances as those
seized from the defendant.
9
c. Lost evidence. The defendant contends that as a result
of Dookhan's misconduct the Commonwealth lost exculpatory
evidence and therefore his convictions should be reversed and
the indictments dismissed. To succeed on a claim of lost
evidence the defendant must demonstrate that the Commonwealth
lost evidence in the first instance. The defendant's argument
in this respect again relies on the assumption that the
substances tested by Saunders were previously adulterated by
Dookhan. Otherwise stated, the defendant asserts that none of
the substances seized from him remained unaltered, and hence the
evidence must be deemed "lost." As stated, there is no evidence
to support this assertion; the evidence presented at trial
indicates the opposite. Saunders testified that the weights of
the substances she tested were consistent with a retest of the
original amount seized, and there was no evidence that the
substances were ever adulterated or mixed together. The
defendant, therefore, has failed to make the threshold showing
that the Commonwealth lost any evidence in this case.6
6
Even if the defendant had shown that evidence were lost,
he would be required to demonstrate "based on concrete evidence,
rather than a fertile imagination," that what was lost (or, in
this case, adulterated) would otherwise have been exculpatory.
Commonwealth v. Sanford, 460 Mass. 441, 447 (2011). The
controlled purchase by an undercover officer combined with the
circumstances of his arrest would have made this showing
difficult. He nevertheless might have prevailed on his lost
evidence claim with a showing that the Commonwealth acted "in
bad faith or recklessly." Id. at 450, citing Commonwealth v.
10
3. Jury instructions. The defendant asserts that the
"suit coat" example7 of constructive possession in the jury
instructions was too similar to the facts in this case and
expressed approval for the Commonwealth's theory of the case.8
The defendant objected to that portion of the instruction but
declined the judge's offer to give a curative instruction. Jury
instructions are to be reviewed in their entirety. Commonwealth
v. Walker, 466 Mass. 268, 284 (2013). Isolating the example
from the remainder of the charge ignores that the judge also
instructed that the defendant had to knowingly possess the drugs
in the pants pocket in order for the jury to find him guilty of
possession. See Commonwealth v. Gil, 393 Mass. 204, 221-222
Williams, 455 Mass. 706, 718 (2010). While Dookhan's actions,
and the circumstances in the Hinton drug lab that allowed them,
certainly meet this description, the Commonwealth mitigated its
culpability with full disclosure and a retest of the originally
seized drugs.
7
The challenged instruction is as follows:
"In my lobby, my office over to my right, I have my suit
coat. And I know that when I came into work this morning, I
drove a car and I have my car keys in my suit coat pocket.
I'm not wearing my suit coat pocket, but I know where it
is, I know the keys are there. I have the ability and the
intention to exercise control over those keys, really,
essentially, whenever I want to. So the law would say I
have constructive possession of the car keys, which are
presently in my coat pocket, hanging in my lobby."
8
The judge gave two examples in his charge to the jury on
constructive possession, the "suit coat" example and another
about items in a safety deposit box in a bank. The defendant
asserts error only as to the suit coat example.
11
(1984). Insofar as the defendant asserts that the instruction
allowed the jury to convict the defendant based on the presence
of the drugs in his pockets alone, the instruction that the
Commonwealth had to prove the defendant knowingly possessed a
controlled substance eliminates any confusion, as did the
example itself, which required that the judge know the keys were
in his pocket in order to be in possession of them. Further,
the judge instructed the jury later in his charge that he was
neutral and they should not infer that anything he said or did
during the trial suggested "that [he had] an opinion on how [the
jury] should decide the case." Finally, even if the instruction
may have been similar to the facts of the case, it is clear that
the jury were not persuaded by that similarity, given that they
acquitted the defendant of possession of the cocaine found in
his pants pocket. There was no error.
Judgments affirmed.