NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
11-P-1569 Appeals Court
COMMONWEALTH vs. DAVID E. NELSON.
No. 11-P-1569.
Plymouth. September 14, 2016. - November 2, 2016.
Present: Green, Wolohojian, & Massing, JJ.
Controlled Substances. Constitutional Law, Conduct of
government agents. Practice, Criminal, Conduct of
government agents, Disclosure of evidence, New trial. Due
Process of Law, Disclosure of evidence. Evidence,
Disclosure of evidence, Certificate of drug analysis.
Indictments found and returned in the Superior Court
Department on February 1, 2008.
A motion for a new trial, filed on December 17, 2012, was
heard by Paul A. Chernoff, J., special judicial magistrate, and
an order affirming the proposed order of the magistrate was
entered by Thomas F. McGuire, Jr.
Thomas C. Foley for the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
WOLOHOJIAN, J. In 2009, a jury convicted the defendant of
2
various drug offenses.1 The drugs at issue were tested and
analyzed at the William A. Hinton State Laboratory Institute
(Hinton lab or lab), but neither the misconduct by chemist Annie
Dookhan nor the problems at that lab were discovered before
trial. Once those issues came to light, the defendant moved for
a new trial. A special magistrate2 conducted an extensive
evidentiary hearing and made detailed findings acknowledging the
severity and the scope of Dookhan's misconduct and the
irregularities at the Hinton lab. Nonetheless, the special
magistrate denied the defendant's motion for new trial because
Dookhan had not participated in testing, analyzing, or reviewing
the drugs at issue in this case and there was no evidence to
show or to suggest that the problems at the lab in any way
affected the accuracy or the reliability of the testing of the
drugs the defendant was accused of possessing. We affirm.
The details of Dookhan's egregious misconduct can be found
in Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014), and we
accordingly do not repeat them here. In Scott, supra at 338,
the Supreme Judicial Court held that a defendant seeking to
1
Specifically, the jury convicted the defendant of
possession of cocaine with the intent to distribute, see G. L.
c. 94C, § 32A(c), while in a school zone, see G. L. c. 94C,
§ 32J. After a jury-waived trial, the judge found the defendant
to be a subsequent offender, see G. L. c. 94C, § 32A(d).
2
Appointed by the Chief Justice of the Superior Court
Department of the Trial Court pursuant to Mass.R.Crim.P. 47, 378
Mass. 923 (1979).
3
withdraw a guilty plea after learning of Dookhan's misconduct is
entitled to a conclusive presumption of egregious government
misconduct where Dookhan signed the certificate of drug analysis
as primary or secondary chemist. The presumption of egregious
government misconduct does not entitle a defendant to relief
unless he also demonstrates a "nexus between the government
misconduct and the defendant's own case."3 Id. at 351. That
nexus exists if "Dookhan signed the drug certificate in her role
as an analyst in that defendant's case." Id. at 353.
In Commonwealth v. Francis, 474 Mass. 816, 823 (2016), the
same conclusive presumption was extended to those who, like the
defendant, "seek[] to vacate his or her conviction at trial
after learning of Dookhan's misconduct." Although Francis does
not explicitly state that a defendant must demonstrate a nexus
between Dookhan's misconduct and his case where he seeks to
vacate his conviction after trial (rather than withdraw his
plea), we see no reason why a defendant would be relieved of the
burden in one circumstance and not in the other. Indeed, the
language of Francis, while not explicit, suggests that such a
nexus is required. See id. at 823 (defendant entitled to
3
In addition, a defendant seeking to withdraw a plea has
the burden "to particularize Dookhan's misconduct to his
decision to tender a guilty plea," Scott, 467 Mass. at 354, and
a defendant seeking a new trial has the burden to show
prejudice, Commonwealth v. Francis, 474 Mass. 816, 825-826
(2016).
4
conclusive presumption of misconduct if Dookhan "examined the
substance in question as a primary or confirmatory chemist").
We also draw support for this conclusion from Commonwealth v.
Gardner, 467 Mass. 363, 369 (2014), where the court reversed the
dismissal of an indictment where Dookhan was neither the primary
nor the secondary chemist and her relationship to the case was
"remote and tangential."
Here, it is undisputed that Dookhan did not sign the drug
certificate as either the primary or the secondary chemist. Nor
has the defendant shown any connection between other alleged
improprieties at the Hinton lab and the accuracy or the
reliability of the testing of the drugs at issue here. In
short, although the defendant is correct that the conclusive
presumption of misconduct created in Scott is available not only
to those seeking to withdraw pleas but also to those seeking to
vacate their convictions, he was entitled to a new trial only if
he could show a nexus between Dookhan's misconduct or the
alleged irregularities at the Hinton lab and his own case.
Contrary to the defendant's argument, it is not enough simply to
show that problems occurred in the lab, however egregious they
were; he needed to demonstrate a connection between those
problems and his case.
We are also unpersuaded by the defendant's argument that he
was entitled to a new trial because the Commonwealth violated
5
its discovery obligations, Brady v. Maryland, 373 U.S. 83, 87
(1963), by failing to disclose Dookhan's misconduct and other
alleged irregularities at the Hinton lab. "To establish a Brady
violation, a defendant must show that (1) material information
was in the possession of the prosecutor or those police who are
participants in the investigation and presentation of the case;
(2) the information tended to exculpate him; and (3) the
prosecutor failed to disclose the evidence. The so-called Brady
obligation is one of disclosure; it imposes no obligation on the
prosecution to gather evidence or conduct additional
investigation." Commonwealth v. Caillot, 454 Mass. 245, 261-262
(2009) (quotation marks and citations omitted).
Here, as the special magistrate found, there is no
indication that anyone knew the true magnitude of Dookhan's
misconduct before it came to light in 2012, well after the
defendant's trial in 2009. The special magistrate correctly
concluded that the Commonwealth had no burden under Brady to
produce information of which it had no knowledge. See Caillot,
supra at 262. In addition, the special magistrate was also
correct that Dookhan's misconduct -- even had it been known --
was not material because, as we noted supra, Dookhan was not
involved in testing, analyzing, or certifying the drugs at issue
in this case.
6
We turn now to the arguments the defendant raises in his
direct appeal. First, the defendant argues that the trial judge
erred by permitting a police officer to offer expert testimony
concerning the economic reasons an addict would purchase drugs
in bulk rather than in smaller packages. Second, the defendant
contends that his motion to suppress should have been allowed
because the search warrant was insufficiently particularized.
Lastly, the defendant argues the evidence was insufficient to
prove his constructive possession beyond a reasonable doubt.4
The first two arguments are controlled by our decision in the
codefendant's appeal, and we do not revisit those analyses here.
See Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 414-418
(2013).
As to the third, contrary to the defendant's contention,
this is not a case of mere presence alone: (1) the defendant
was seated on the couch of his residence at 10:00 P.M., see
Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 680 n.9 (2006)
(residential status indicates more than mere presence), (2) the
drugs were on the coffee table and drug-related items (scale and
baggies) were also present and visible, see Commonwealth v.
4
We note that possession was not a live issue at trial
because the defense strategy was to concede possession and to
contest only the intent to distribute. However, short of a
stipulation, the Commonwealth was not relieved of its burden of
proof. Commonwealth v. Mendes, 78 Mass. App. Ct. 474, 480
(2010), S.C., 463 Mass. 353 (2012).
7
Montalvo, 76 Mass. App. Ct. 319, 324 (2010) (evidence of
constructive possession sufficient where "the defendant was in
the only room where contraband was located . . . [and] was in
close proximity to the drugs and packaging materials that were
in the open, in plain view"), (3) the room was very small (eight
feet by ten or twelve feet), and (4) only the defendant and his
girl friend were present in a state of undress and at an hour
that indicated familiarity with, and residence in, the
apartment, see ibid. (fact that "the defendant was wearing only
a T-shirt in January, and was thus not appropriately dressed to
be outside, supports a finding that he was not simply passing
through"). Contrast Commonwealth v. Brown, 34 Mass. App. Ct.
222, 225-227 (1993) (insufficient evidence of constructive
possession where apartment contained multiple common spaces and
had many people present, defendant not found in room containing
bulk of drugs and drug paraphernalia, defendant's bedroom
contained no drugs, and defendant's relationship to individual
who controlled apartment not established). In the circumstances
presented here, the evidence was sufficient to permit the jury
to find the defendant's constructive possession beyond a
reasonable doubt. See Commonwealth v. Boria, 440 Mass. 416, 419
(2003) ("presence, supplemented by other incriminating evidence,
8
'will serve to tip the scale in favor of sufficiency'" [citation
omitted]).
Judgments affirmed.
Order denying motion for
new trial affirmed.