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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.