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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.
