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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.