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16-P-1569                                               Appeals Court

               COMMONWEALTH    vs.   JUAN CARLOS RODRIGUEZ.


                               No. 16-P-1569.

      Suffolk.          November 3, 2017. - February 20, 2018.

            Present:   Wolohojian, Massing, & Wendlandt, JJ.


Controlled Substances.        Evidence, Field Drug Test, Scientific
     test, Indictment.



     Indictment found and returned in the Superior Court
Department on August 5, 2009.

    The case was tried before Linda E. Giles, J.


     Edward Crane for the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.


    MASSING, J.        In yet another case affected by the wrongdoing

of former State chemist Annie Dookhan, see generally

Commonwealth v. Scott, 467 Mass. 336 (2013); Bridgeman v.

District Attorney for the Suffolk Dist., 476 Mass. 298 (2017)

(Bridgeman), we must reverse a defendant's conviction of

trafficking in heroin.        See G. L. c. 94C, § 32E(c).     In an
                                                                       2


effort to cure the taint from Dookhan's association with the

case as primary chemist, a police officer testified that he

performed a field test of the substance seized from the

defendant, which proved that the substance was heroin.     The

testimony was admitted, over the defendant's objection, without

establishing the scientific reliability of the field test.       We

conclude that the admission of this evidence was prejudicial

error and that the defendant is entitled to a new trial.

     Background.   We recite the basic facts as the jury could

have found them, reserving other facts for later discussion.          On

April 27, 2009, officers of the Boston police department's drug

control unit went to the housing development where the

defendant, Juan Carlos Rodriguez, lived to execute three search

warrants:   one for the defendant's apartment, one for his motor

vehicle, and one for his person.   Once inside the defendant's

apartment, the officers used a key recovered from the

defendant's motor vehicle to open a locked bedroom door.     In the

bedroom's closet, the police found a total of $13,270, a digital

scale, and a small pouch that contained nine individually

wrapped packages, or "fingers,"1 of a substance that resembled


     1
       Sergeant Detective William J. Feeney testified that a
"finger" is a quantity of heroin purchased by mid-level dealers,
and that the name is derived from the practice of packaging
approximately ten grams of heroin inside the finger of a latex
glove, tying it off in a knot, and then cutting off the finger.
                                                                        3


sidewalk chalk.     A search of the defendant's person yielded two

similar packages.

     Officer Robert England took the eleven packages to the

police station and conducted a field test using a NarcoPouch 924

test kit manufactured by Safariland.     The NarcoPouch 924 test

kit is a small, sealed rubber pouch that contains three glass

vials filled with chemical solutions.     England unsealed the

NarcoPouch 924 test kit, placed a small amount of the chalky

substance inside the pouch, resealed it, and began "popping" the

vials so that the unknown substance interacted with the chemical

solutions.   He testified, "I field-tested these drugs[2] and the

preliminary result came back to me.    It showed green to me.      We

believe it was [h]eroin."

     The eleven packages were sent to the William A. Hinton

State Laboratory Institute in Jamaica Plain (Hinton lab) in

April, 2009, for testing.     As the primary chemist assigned to

the case, Annie Dookhan "received [the packages] from the

evidence office . . . checked it and [did] all the preliminary

testing, which included doing the net weight, doing color tests,

[and] perhaps . . . other kinds of testing."     Della Saunders,

the confirmatory chemist, received eleven vials prepared by

Dookhan and tested them, concluding that "they were positive for

     2
       On cross-examination, defense counsel established that
England tested only one of the eleven packages.
                                                                   4


the presence of heroin."   Both Dookhan and Saunders certified

that the packages seized from the defendant's closet and person

contained heroin.

     In 2013, Dookhan pleaded guilty to twenty-seven counts of

criminal misconduct, including tampering with evidence, perjury,

and obstruction of justice.   The trial judge permitted the

defendant substantial leeway in introducing evidence concerning

Dookhan's arrest and prosecution for her criminal conduct at the

Hinton lab, including the transcript of her guilty plea

colloquy,3 testimony from three of Dookhan's coworkers about her

misconduct at the lab,4 and State police Captain Robert M.

Irwin's testimony about the criminal investigation of Dookhan's

conduct.

     After Dookhan's wrongdoing came to light, the Commonwealth

sent the eleven packages seized from the defendant to the


     3
       At the plea colloquy, an assistant attorney general
recited the following evidence of Dookhan's misconduct:
improperly removing ninety drug samples from the evidence safe
at Hinton lab, forging the signature of an evidence officer,
specific instances of tampering with the testing of drug vials,
submitting a discovery packet to a prosecutor that contained an
altered test, and lying about her qualifications.
     4
       Daniel Renczkowski testified that he observed instances
where Dookhan's laboratory bench practices subjected her samples
to cross-contamination. Nicole Medina and Renczkowski testified
that someone forged their initials on laboratory documents.
Medina also testified that she saw Dookhan using a computer in a
restricted area of the laboratory, and Peter Piro once observed
Dookhan mishandling balances and scales.
                                                                    5


laboratory at the Massachusetts State police forensic services

group for retesting.   Sarah Clark, a chemist at this laboratory,

retested the substances in the packages and concluded that they

contained heroin.

     At trial, the defendant argued that Dookhan's participation

irrevocably damaged the Commonwealth's case, and specifically

that the Commonwealth could not meet its burden of proving that

the packages the Boston police seized from the defendant

contained heroin before Dookhan gained access to them.     The

Commonwealth combatted this defense on two grounds:   first, that

there was no direct evidence that Dookhan altered the evidence

in this case5 and second, that the field test and circumstantial

evidence proved "it was heroin on that day and it is heroin

today."   In this vein, the prosecutor argued:

          "How do you know this is heroin? You know it because
     Officer England came before you and told you right after
     they seized this, back at the station he performed a field
     test. . . . And on that date, what happened? It showed
     the presence of heroin in these drugs. Ladies and
     gentlemen, it was heroin on that date, and it is still
     heroin."


     5
       The Supreme Judicial Court has since observed that it
"'may be impossible' for any defendant to prove that the drug
analysis in his or her case was tainted by [Dookhan's]
misconduct" because "even if Dookhan herself were to testify in
each of the thousands of cases in which she served as primary or
secondary chemist, it is unlikely that her testimony, even if
truthful, could resolve the question whether she engaged in
misconduct in a particular case." Bridgeman, 476 Mass. at 305,
quoting from Scott, 467 Mass. at 351-352.
                                                                    6


     Discussion.   1.    Field test evidence.   a.   Scientific

reliability of field test results.    The defendant contends that

the judge erred by allowing the Commonwealth to introduce the

results of the NarcoPouch 924 field test for heroin without

demonstrating the test's scientific reliability under

Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994).       We agree.

     The issue arose as follows.    Jury selection began on a

Friday.   On that day the defendant filed a motion in limine "to

preclude the Commonwealth from introducing, or referring to,

purported field test evidence that the purported drugs in this

case are heroin" on the ground that "this opinion does not meet

the Daubert[6]/Lanigan, standard because this evidence is not

scientifically valid."    The judge reserved decision until the

following Monday, when she denied the motion, requiring the

Commonwealth only to "provide an adequate foundation that the

field tester is qualified to do that," but not to demonstrate

the scientific reliability of the test.7    In this regard,


     6
       Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
     7
       In Commonwealth v. Marte, 84 Mass. App. Ct. 136, 141
(2013), we noted that since 2009, "the evidentiary standards for
properly admitted field tests are heightened," and that the
requisite foundation for admission of field test evidence
"includes the experience of the officer(s) conducting the test,
the methodology of the testing, and definitive identification of
the substance, i.e., as cocaine, heroin, or another controlled
substance." In Marte, however, we did not address the issue of
scientific reliability presented in Commonwealth v. Fernandez,
                                                                    7


England, a twenty-five year veteran police officer, testified

that he was "introduced to NarcoPouch" at a two-week course with

the United States Drug Enforcement Administration, where he was

"trained and certified," and that he had "recertified with

NarcoPouch" since then.   He testified that he used NarcoPouch "a

lot,"8 that "several people" with the Boston police use it too,

and that he is often called to crime scenes to perform the test

when a trained officer is needed.

     Even with a qualified officer testifying, field test

evidence may not be offered without a demonstration of its

validity or reliability under Lanigan.   "[T]o date, no appellate

case from Massachusetts has accepted as reliable field test

results, regardless of the purposes for which they are offered.

Until that occurs, field tests offered to prove the identity of

a substance, 'presumptive' or otherwise, must be evaluated

according to one of the methods approved in Lanigan."

Commonwealth v. Fernandez, 458 Mass. 137, 151 n.20 (2010).9   No



458 Mass. 137, 149-150 (2010), stating that "that issue is not
present in this appeal, there having been no Lanigan challenge
raised below." Marte, supra at 143 n.6.
     8
       When asked how many times he had used a NarcoPouch test
over the course of his career, he answered, "I mean a thousand
is a lot, but I'd say -- [I] use it all the time. . . . I field
test everything."
     9
       In both Fernandez, supra at 149 n.17, and Commonwealth v.
Vasquez, 456 Mass. 350, 364 n.15 (2010), the Supreme Judicial
Court cited the National Research Council, Strengthening
                                                                      8


Massachusetts appellate case since Fernandez has accepted any

field test, including the NarcoPouch 924 field test for heroin,

as reliable.

       In Fernandez, the Commonwealth introduced evidence that

police officers conducted weekly field tests of the residue of

plastic bags pulled from the defendant's trash with "Scott-

Reagent tests" for cocaine manufactured by NIK Public Safety,

Inc.   Id. at 139 & n.4.   "All the field tests . . . returned

positive results for the presence of cocaine."       Id. at 139.    The

defendant argued that the judge erred by failing to subject this

evidence to a Lanigan analysis.    Id. at 147-148.     The court

rejected this claim because "[t]he judge did perform such an

analysis, albeit a limited one" (emphasis supplied).       Id. at

148.    Rather, the court asked "whether the Lanigan analysis that

was performed was adequate."    Ibid.




Forensic Science in the United States, A Path Forward, 134-135
(2009), for the proposition that forensic drug testing usually
involves "presumptive identification" by a field test, followed
by definitive identification using gas chromatography-mass
spectrometry. Neither of these cases accepted the National
Research Council's report as establishing the scientific
reliability of field tests. See State v. Martinez, 143 Conn.
App. 541, 563 & n.8 (2013), reversed on other grounds, 319 Conn.
712 (2015) (noting "that the leading treatises on scientific
evidence offer no clear consensus on the reliability of field
tests").
                                                                     9


     The court held that "the Commonwealth's relatively weak

proffer," id. at 150,10 was sufficient in Fernandez for two

reasons.   First, although the Commonwealth "alerted [the

defendant] about the field testing and how it was performed"

several months before trial, the defendant "waited until the

eleventh hour" -- the first day of trial -- "to raise the

Lanigan issue."   Id. at 147-148, 149.   The late notice prevented

the Commonwealth from calling "a scientist from the field test

manufacturer to testify as to its reliability."    Id. at 150.

Second, the tests were never presented to the jury as being

conclusive.   Ibid.   "To the contrary, the 'presumptive' nature

of the tests was emphasized at every turn."    Ibid.   The judge

instructed the jury twice that a field test "may or may not

yield a valid result," that no field test exists "that will

completely eliminate the occurrence of an invalid test result,"

     10
       The judge declined to hold a full evidentiary hearing,
but required the Commonwealth to provide "some foundation" for
the field tests' reliability. Fernandez, supra at 148. The
Commonwealth offered "a case from the Criminal Court of the City
of New York, People v. McIntrye, 185 Misc. 2d 58 (N.Y. Crim. Ct.
2000), and a regulation applicable to the Department of
Correctional Services of the State of New York," both concerning
"the general acceptance of the field tests . . . for obtaining
presumptive results." Ibid. These sources discussed the
reliability of the brand and manufacturer of the field tests
used in Fernandez's case, which employs a chemically treated
swab that turns from pink to blue to indicate the presence of
cocaine. Id. at 139, 148. Here, the Commonwealth offered no
information about the NarcoPouch 924 field test for heroin, the
broken vial technology, or the manufacturer's quality control
process.
                                                                  10


and that "[a] forensic laboratory test is necessary to identify

the nature of an unknown substance completely."   Ibid.

     The Fernandez decision does not excuse the complete absence

of Lanigan screening in this case.   It is true that defense

counsel in this case, as in Fernandez, did not file his motion

in limine until the first day of trial, prior to jury selection.

The Commonwealth argued, and the judge agreed, that its future

reliance on the field test was evident from the grand jury

minutes, in which England testified and described his use of the

"Narco Test Kit."   The defendant replied that England's

testimony before the grand jury did not put him on notice that

the Commonwealth would employ England as an expert on the

scientific validity of the field test.11   In any event, the

defendant's late assertion of the Lanigan issue might have

justified a limited Lanigan analysis, but not its complete

abandonment.



     11
       The defendant further contends that the Commonwealth
violated its automatic discovery obligations by failing to
disclose England as an expert witness. See Mass.R.Crim.P.
14(a)(1)(A)(vi), as amended, 444 Mass. 1501 (2005). Defense
counsel represented that he first learned that the Commonwealth
intended to offer England as expert through a motion in limine
the Commonwealth had filed "several days" before trial. The
prosecutor responded, "For the record, I never even filed a
motion in limine." We discern no discovery violation; it is
apparent that the Commonwealth did not intend to rely on England
to offer expert opinion evidence on the scientific validity of
the NarcoPouch 924 test.
                                                                  11


     Finally, unlike in Fernandez, the field test evidence was

used without restriction and with no instruction on its

presumptive nature or the possibility of false positives.   On

cross-examination, England did concede that a field test is a

"preliminary" test, as distinguished from a "scientific" test

performed at a drug testing laboratory.   However, in closing

argument the Commonwealth characterized the field test as

conclusive evidence that "it was heroin on that date, and it is

still heroin."12   Allowing the field test to be used for this

purpose without prior scrutiny under the Lanigan protocol was

error.

     b.   Prejudice.   We further conclude that the error entitles

the defendant to a new trial.   Because the defendant preserved

this issue with a timely objection, "we review the proceedings

below for prejudicial error."   Commonwealth v. Cruz, 445 Mass.

589, 591 (2005).   "An error is not prejudicial if it 'did not

influence the jury, or had but very slight effect.'"   Ibid.,

quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994).   "[I]t is not enough for the Commonwealth to demonstrate

that its other, properly admitted evidence was 'sufficient' to

convict the defendant or that the inadmissible evidence was

'consistent' with the admissible evidence."   Commonwealth v.

     12
       The prosecutor was free to make this argument, which was
firmly rooted in the evidence admitted at trial.
                                                                  12


Tyree, 455 Mass. 676, 701 (2010), quoting from Commonwealth v.

Dagraca, 447 Mass. 546, 554-555 (2006).

     In determining whether an error is prejudicial "we examine

various factors, including the importance of the evidence in the

prosecution's case; the relationship between the evidence and

the premise of the defense; who introduced the issue at trial;

the frequency of the reference; whether the erroneously admitted

evidence was merely cumulative of properly admitted evidence;

the availability or effect of curative instructions; and the

weight or quantum of evidence of guilt."    Dagraca, supra at

553.13    Here, the defense was based on casting doubt on the

composition of the substance before Dookhan obtained access to

it, and the Commonwealth introduced the field test result

     13
       Dagraca, supra at 552-553, applies the harmless beyond a
reasonable doubt standard, derived from Chapman v. California,
386 U.S. 18, 24 (1967), applicable to errors of constitutional
dimension, while we apply the less stringent prejudicial error
standard, derived from Kotteakos v. United States, 328 U.S. 750,
764-765 (1946), used to evaluate evidentiary errors. See
Flebotte, supra. The difference between the two standards is
not of kind but of degree. See Brecht v. Abrahamson, 507 U.S.
619, 641-642 (1993) (Stevens, J., concurring) (discussing
development and application of prejudicial error standard).
Compare Tyree, supra (to assess harmlessness under Chapman
standard we review "the totality of the record before us,
weighing the properly admitted and the improperly admitted
evidence together" to determine whether "we are satisfied beyond
a reasonable doubt that the tainted evidence did not have an
effect on the jury and did not contribute to the jury's
verdicts") with Flebotte, supra (assessment of prejudicial error
involves "pondering all that happened without stripping the
erroneous action from the whole" to determine whether the
judgment "was not substantially swayed by the error").
                                                                    13


specifically to undermine this defense.    The erroneously

admitted evidence was unique in establishing the nature of the

substance and was used for its full probative force without any

curative instruction.    Contrast Fernandez, 458 Mass. at 150, 153

(presumptive nature of field test evidence explained to jury and

described by judge as "only 'incremental' evidence").      As the

other evidence regarding the composition of the substance before

it reached the Hinton lab was not overwhelming, the error was

prejudicial.

       Aside from the field test result, the Commonwealth

presented little direct or circumstantial evidence of the

composition of the drugs before they were sent to the Hinton

lab.   In some cases, a police officer with expertise in

identifying drugs or a defendant's statements and course of

conduct can be used to establish that a particular substance is

a drug.    See, e.g., Commonwealth v. Connolly, 454 Mass. 808,

812, 830-831 (2009) (three experienced officers' testimony that

substance either appeared to be or was identified by a field

test as cocaine, defendant's identification of substance as

"crack" cocaine during two controlled purchases, and canine

sniff contributed to finding that reliance on drug certificates

in violation of Melendez-Diaz v. Massachusetts, 557 U.S. 305

[2009], was harmless beyond a reasonable doubt); Commonwealth v.

Marte, 84 Mass. App. Ct. 136, 140, 143 (2013) (defendant's
                                                                  14


statement that "you never have to worry about my package, I've

been around a long time," coupled with evidence of four

controlled buys and field testing following each buy,

contributed to finding Melendez-Diaz error harmless beyond a

reasonable doubt as to drug convictions resulting from the four

controlled buys).

    Here, there were no controlled purchases and no

incriminating statements by the defendant.    England professed no

ability to recognize drugs without conducting a field test ("I'm

not a user so I field test everything").     Sergeant Detective

William J. Feeney, who was the Commonwealth's expert on

distribution and packaging of drugs, opined that "possession of

over [one hundred] grams of [h]eroin in finger form" was

consistent with possession with the intent to distribute.     When

asked, "[W]hat do you recognize that tan powder to be packaged

like?" he responded, "It's consistent with fingers of [h]eroin,

based on its color, its texture."   This unsolicited remark

regarding the color and texture of the substance, from an

officer not shown to be an expert in identifying drugs, carries

little weight.   See Commonwealth v. Nelson, 460 Mass. 564, 577

(2011) (Melendez-Diaz error not harmless where officer "was

called as an expert concerning the charge of intent to

distribute and thus was never asked directly to identify the

marijuana"); Commonwealth v. King, 461 Mass. 354, 358 (2012)
                                                                  15


(officer "not asked about his specific training in the

identification of cocaine").

    The evidence that cash and a scale were found in the

defendant's closet, that the substance was packaged in "finger"

form, and that defendant fled while awaiting trial does not

overcome the prejudice from the Commonwealth's reliance on the

field test result.   See King, supra at 360 ("[E]vidence [that]

leads to the conclusion that the defendant took part in what

appeared to be a drug transaction . . . does not go to whether

the substance was, in fact, cocaine").   "This is not a case

where the facts independent of the [field test result]

overwhelmingly prove the nature of the substances . . .

recovered from the defendant's apartment."    Commonwealth v.

Vasquez, 456 Mass. 350, 367 (2010).   The improper use of the

field test result clearly prejudiced the defendant, and we

cannot say with fair assurance that the error had but slight

effect.

    2.    Limitations on defense evidence.   The defendant

contends the judge erred by not allowing Irwin to testify that

Dookhan had a key to the evidence safe at the Hinton lab and in

denying his request to introduce copies of Dookhan's indictments
                                                                     16


in evidence.   Because these evidentiary issues might recur at

any new trial, we comment briefly.14

     From conducting the investigation of Dookhan's criminal

activity, Irwin had personal knowledge that Dookhan possessed a

key that opened the locked door to the evidence safe.     The judge

disallowed Irwin's testimony about Dookhan's possession of the

key under the erroneous premise that what defendant was seeking

to introduce through Irwin was a statement against penal

interest attributed to Dookhan.     Irwin's testimony should not

have been excluded on this ground.     However, the judge did

permit the defendant to present ample evidence to suggest that

Dookhan had free access to evidence stored at the Hinton lab,

and it was obvious that Dookahn, as primary chemist, had access

to the eleven "fingers" seized from the defendant.     "A trial

judge has discretion to exclude evidence that would be merely

cumulative of evidence already admitted."     Commonwealth v.

Urrea, 443 Mass. 530, 544 (2005).    At any retrial, Irwin's

testimony regarding the key should be reviewed in this light.

     The judge did not abuse her discretion in excluding the

indictments from evidence.     Indictments have no probative value

or evidentiary significance.    See Commonwealth v. Kelley, 33

Mass. App. Ct. 934, 935 (1992); Commonwealth v. Johnson, 43

     14
       We need not address the defendant's claim regarding the
prosecutor's exercise of a peremptory challenge as the unique
facts underlying this claim are unlikely to repeat.
                                                                    17


Mass. App. Ct. 509, 513-515 (1997).     The defendant was permitted

to introduce substantial evidence of Dookhan's misconduct,

including the colloquy in which she pleaded guilty to the crimes

charged in the excluded indictments.     The indictments were not

necessary to prove the time frame of Dookhan's misconduct, which

the defendant was able to establish through Irwin's testimony

that it dated back as far as 2008 and 2009, and by the colloquy

itself, which discussed specific misconduct in June, 2011.

    Conclusion.   The judgment is reversed and the verdict is

set aside.

                                      So ordered.
