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14

- P
- 63 Appeals Court

COMMONW EALTH 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. Pr actice, 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.

I ndictments found and returned in the Superior Court Department on April 20, 2011.
The case s 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 h eroin in violation of G. L. c. 94C , § 32 , and possession with the intent to distribute h eroin in2

violation of G. L. c. 94C , § 32A
. 1 He asserts that misconduct at the William A. Hinton St ate 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 fact s as the jury could have
found them. On February 9, 2011, Boston p olice arrested the
defendant after an undercover off icer purchase d two bags of heroin for sixty dollars from the defendant at hi s home
. The defen dant 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 S tate 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 w ith 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 d rug lab
. The substances wer e 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
p olice pending trial
. T he misconduct at the Hi nton 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

a nother chemist, Della Saunders
. That testing in May, 2012 , also identified the sub stances as heroin and cocaine
. The Commonwealth provided the defendant with all appropriate discovery , including that relating to the misconduct at the Hinton d rug 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 variation s o n 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 d rug l ab, see Commonwealth v. Scott , 467 Mass. 336 , 337

- 342, 349

- 350 (2014).4

procedurally, to prove that substances seized from him were illeg al drugs
. 1. Due p rocess . The defendant asserts that the
governm ent's misconduct at the Hinton d rug l ab deprived him of his due process r ight to a fair trial
. As this claim was not raised below, we review for a substantial risk of a miscarriage of jus tice
. 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
Commonwea l t h v . Scott , 467 Mass
. 336 (2014) ( Scott )
. Scott dealt with the a ppropriate remedy for defendant s who wished to withdraw their guilty pleas to drug charges in cases where Dookhan was either the prima ry or secondary chemist and her misconduct was unknown at the time of the plea
. The c ourt held that because the defendant in that case had entered a guilty plea 3 without knowledge of Dookhan's misconduct and could show that Dookhan was one of the chemists assigned to his case , th e 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 plead ed guilty had he kn own of the misconduct
. Scott , 46 7 Mass. at 344

- 355
. The court specifically limited th e favorable presumpti on 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 defend ant's motion to withdraw a guilty plea pursuant to our holding in this case . " Id
. at 354
. In the context of this case, t he import of Scott is that a defendant who elects a trial wi ll have the opportunity to present evidence , but not the benefit of a presumption, of miscon duct 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, o n this record , that the defendant did not
demonstrate a sufficient nexus between governmental misconduct and his conviction to require reversal
. S ee 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 to6

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 T he jury w ere 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
. T he defendant's remaining arguments may be characterized a s variations on a theme
. He
assert s 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 t rial of this defendant , there is no evidence that Dookhan ' s misconduct include d 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 , act ing 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
. S he would conduct the required testing on a handful of the se samples , and then attribute the results to all of those she had drawn ("dry labbing")
. She would then prepare small vials (aliquots) f rom each case for secondary testing. In some cases, when her surmise

-- that each of the untested sample s was identical to the o thers

-- proved to be wrong after a secondary chemist tested the aliquot s , she would add a known substance to a new aliquot to ensure that a subsequent retest would "turn [] negative samples into positive samples , " i d . 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 provide d admi ssible 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. S ufficiency 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 testi fied 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
compo sition 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 detailed8

above, there was no evidence presented at trial that Dookhan mixed substances from different suspects or that she adul terated anything other than samples after they were extracted from the substances seized from suspects
. The chain of custody o f the substances on which Saunders' s subsequent testing was conducted was properly entered in evidence at trial
. 5 The jury prope rly could conclude that there was no break in the chain of custody
. A n y 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 dru g evidence
. Commonwealth v . Colon , 33 Mass
. App . Ct . 304, 309 (1992)
. See Commonwealth v . Penta , 423 Mass
. 546, 556 (1996)
.

5 The officer s who handled the substances seized from the defendant testified as to their role in the chain of custody. T hat 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 f or 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 Saun ders. Once tested, the evidence was again returned to the evid ence 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 agai n 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 wa s 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 exculp atory. 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 c laim with a showing that the Commonwealth acted "in bad faith or recklessly." Id . at 450 , citing Commonwealth v.10

3. Jury i nstructions
. The defendant asserts that the "suit coat" example 7 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 defend ant 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 th at 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 cons tructive possession, the "suit coat" example and another about items in a safety deposit box in a ban k. 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 requir ed 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 di d during the trial suggested " that [he had] an opinion on how [the jury] should decide the case
. " Finally, e ven 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 po ssession of the coca ine found in his pants pocket
. There was no error
. Judgments affirmed
.