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SJC-11988

                 COMMONWEALTH   vs.   DANIEL FRANCIS.



            Suffolk.    March 8, 2016. - July 20, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Controlled Substances. Constitutional Law, Conduct of
     government agents. Due Process of Law, Disclosure of
     evidence, Presumption. Practice, Criminal, New trial,
     Conduct of government agents, Disclosure of evidence,
     Presumptions and burden of proof. Evidence, Certificate of
     drug analysis, Disclosure of evidence, Presumptions.



     Indictments found and returned in the Superior Court
Department on March 13, 2006.

     The cases were tried before Frank M. Gaziano, J., and a
motion for a new trial, filed on October 1, 2012, was considered
by him.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     David J. Rotondo for the defendant.
     Benjamin B. Selman, Committee for Public Counsel Services,
for Committee for Public Counsel Services.
     Vincent J. DeMore, Assistant District Attorney, for the
Commonwealth.
                                                                    2


     GANTS, C.J.   This is yet another in the series of cases

arising from the misconduct of Annie Dookhan when she was

employed as a chemist at the William A. Hinton State Laboratory

Institute (Hinton drug lab).   Here, the defendant was found

guilty at trial of the trafficking and distribution of cocaine.

At trial, certificates of drug analysis (drug certificates) were

admitted in evidence, signed by Dookhan as an assistant analyst,

that declared that the substances in question were cocaine and

that set forth their weight.   The defendant learned of Dookhan's

misconduct after trial, and now moves for a new trial based on

that misconduct.   At issue on appeal is whether a defendant

found guilty at trial who moves for a new trial is entitled to

the same conclusive presumption of "egregious government

misconduct" that we applied in Commonwealth v. Scott, 467 Mass.

336, 352-354 (2014), to cases where a defendant seeks to

withdraw his or her guilty plea after learning of Dookhan's

misconduct.

     We conclude that a defendant in these circumstances is

entitled to the same conclusive presumption.   The consequence of

the conclusive presumption is that we deem it error to have

admitted the drug certificates or comparable evidence regarding

Dookhan's drug analysis where the defendant had no knowledge of

Dookhan's misconduct and therefore no opportunity to challenge

the admissibility or credibility of that evidence.   We further
                                                                    3


conclude that the appropriate standard to be applied to the

erroneous admission of this evidence is the prejudicial error

standard applied to preserved nonconstitutional errors.

Applying that standard, we conclude that, apart from the drug

certificates, the evidence regarding the weight and identity of

the substances in question was not overwhelming, and we

therefore are not "sure that the error did not influence the

jury, or had but very slight effect."   Commonwealth v. Vinnie,

428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998), quoting

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

Consequently, we vacate the defendant's convictions and grant

the defendant a new trial. 1

     Background.   On October 4, 2006, the defendant was

convicted by a Superior Court jury of trafficking in twenty-

eight grams or more of cocaine, in violation of G. L. c. 94C,

§ 32E (b) (2), 2 and unlawful distribution of cocaine, in

violation of G. L. c. 94C, § 32A (c).   We summarize the evidence

at trial, reserving discussion of some of the evidence for

later.


     1
       We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
     2
       The defendant was indicted and convicted in 2006, prior to
the passage of St. 2012, c. 192, § 21, which increased the drug
weights in G. L. c. 94C, § 32E (b). The increased drug weights
do not apply to him. See Commonwealth v. Didas, 471 Mass. 1, 8-
10 (2015).
                                                                     4


     On November 22, 2005, Boston police Officer Andrew Miskell,

along with other officers in the drug control unit, conducted

physical surveillance of the area outside the Forest Hills

subway station in the Jamaica Plain section of Boston.    At

approximately 8:30 P.M., Officer Miskell observed a man, later

identified as Marcus Henderson, on three separate occasions

leave the passenger seat of a motor vehicle, walk to a public

pay telephone, make quick telephone calls, and then return to

his vehicle and wait.    After approximately ten minutes, a man,

later identified as the defendant, arrived and parked his

vehicle about thirty to forty feet in front of Henderson's

vehicle.   Henderson then left his vehicle and entered the

passenger's side of the defendant's vehicle.

     Officer Miskell saw the two men turn towards each other;

after "a brief encounter," Henderson left the defendant's

vehicle and walked towards his vehicle.    Two other members of

the drug control unit, Detective Aaron Blocker and Officer

Lawrence Celester, approached Henderson, and Detective Blocker

told Henderson that he had "to conduct a threshold inquiry."

Henderson then placed a plastic bag of what appeared to the

officers to be "crack" cocaine in his mouth.    Officer Celester

told Henderson that they were not interested in him, and if he

wanted to cooperate, he should give them the drugs.    Henderson

then spit out the bag.    After Henderson was placed under arrest,
                                                                     5


Detective Blocker informed Officer Miskell that he had recovered

drugs from Henderson.

     Officer Miskell followed the defendant's vehicle and, when

it was stuck in traffic, approached the driver's side on foot.

He displayed his badge, announced that he was a police officer,

and ordered the defendant to step out from the vehicle.    Officer

Miskell observed that the defendant held cash in his left hand,

which the officer removed from him upon placing him under

arrest.   The cash that was seized from the defendant's hand

totaled $360.   An additional $597 in cash was recovered from the

defendant during the booking process.

     The defendant's vehicle was searched in the parking lot of

the police station later that evening by Sergeant Detective

William Feeney.   He observed a "Gunk Fix-A-Flat" can in a bag on

the back seat that he recognized as a "hide-a-can."   He

unscrewed the removable bottom portion of the can and found two

plastic bags inside that contained individually wrapped bags of

a substance that he believed to be crack cocaine.

     At the police station, the defendant was informed of the

Miranda rights and interviewed by Officer Kenneth Reid in an

unrecorded conversation.   Officer Reid asked the defendant

"where he got his drugs from and how much drugs he was selling."

The defendant said that he sold between one-quarter and one-half

kilograms of cocaine every one and one-half weeks.    Officer Reid
                                                                   6


told the defendant that he would like to learn who was supplying

the defendant with this cocaine, and the defendant told him that

his supplier was a "white male from the [N]orth [S]hore area";

that he "would call his supplier up and order a half a kilogram

of cocaine"; and that "[the police] could arrest [the supplier]

. . . when [the supplier] made the cocaine delivery."   Officer

Reid informed the defendant that the district attorney would

have to approve using him as a confidential informant, and that

that would have to wait until he was arraigned and obtained

counsel.

     Through the testimony of Detective Blocker and Sergeant

Detective Feeney, the Commonwealth offered in evidence three

drug certificates signed by Dookhan as "Assistant Analyst" on

January 20, 2006.   The first drug certificate regarding the

substance seized from Henderson declared that the tested

substance was cocaine and that it weighed 1.34 grams.   The

second certificate declared that the substance contained in

eight plastic bags was cocaine with a net weight of 19.66 grams.

The third certificate declared that the tested substance

contained in thirty nine plastic bags was cocaine with a net

weight of 19.04 grams.

     After the Commonwealth rested, Henderson testified that he

telephoned the defendant and waited for him at the subway

station because he wanted to give the defendant some money to
                                                                     7


purchase beer and liquor for him for Thanksgiving.    When the

defendant arrived, Henderson entered the defendant's vehicle,

gave the defendant between eighty and one hundred dollars, along

with directions to his home, and showed the defendant a small

package of cocaine that he had in his mouth.    He stated that the

defendant had not given the cocaine to him.

     The defendant testified that he and Henderson "had some

arrangement to get together for Thanksgiving," and that

Henderson gave him one hundred dollars in cash for food,

beverages, and liquor, as well as directions to Henderson's

home, after Henderson entered his vehicle.    Henderson also

showed him "a substance," and asked if he knew someone who would

purchase it.   The defendant said that he did not.

     In 2012, six years after the jury returned their guilty

verdicts, the defendant moved for a new trial pursuant to Mass.

R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),

claiming that he was entitled to a new trial because of newly

discovered evidence arising from Dookhan's misconduct in

conducting drug analyses at the Hinton drug lab and because he

was deprived of due process by the failure of the Commonwealth

to provide him with discovery regarding her misconduct, in

violation of the Fourteenth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights.   The trial judge denied the motion, finding that the
                                                                    8


evidence questioning the validity of the drug certificates was

not newly discovered because the defendant failed to show "that

Dookhan engaged in misconduct in his case, or even that she was

engaged in misconduct at the time the evidence in the

defendant's case was tested."     The judge further found that,

even if the evidence were newly discovered, it is not material

because the defendant admitted that he sold one-quarter to one-

half kilogram of cocaine every one and one-half weeks, and

"referred to the evidence recovered from Henderson as crack

cocaine." 3    The judge further found that the defendant had not


     3
       The only statements by the defendant that arguably could
be construed as referring "to the evidence recovered from
Henderson as crack cocaine" came in response to the following
two questions of the prosecutor on cross-examination:

          Q.: "I want to draw your attention back to the
     testimony you gave about [Marcus] Henderson being in your
     car. You just told the jury that Mr. Henderson showed you
     a piece of crack and he asked you if you knew anyone who
     would purchase it."

              A.:   "Yes, sir."

          Q.: "So it's your testimony today that this is a
     series of bad luck that the police were conducting
     surveillance at Forest Hills T stop on November 22nd, 2005;
     bad luck that Mr. Henderson got into your car with about a
     hundred dollars['] worth of crack; bad luck that he asked
     you, coincidentally, if you knew somebody that could
     purchase it; and further bad luck that the police found
     three thousand dollars['] worth of drugs in your car and
     nine hundred and fifty-seven dollars in cash on your person
     when you're employed. That's just bad luck?"

              A.:   "Yes, sir."
                                                                     9


been deprived of due process because "the evidence was not in

the possession, custody, or control of the prosecutor, [and] the

Commonwealth's failure to disclose that which it did not know

existed cannot be a failure to comply with its obligations under

Brady [v. Maryland, 373 U.S. 83 (1963)]."

     A panel of the Appeals Court affirmed the judge's order in

an unpublished memorandum and order issued pursuant to its rule

1:28.   See Commonwealth v. Francis, 88 Mass. App. Ct. 1101

(2015).   The panel declared that "this case did not turn on the

results of the drug analysis," and concluded, "In short, because

the defendant admitted to selling large quantities of cocaine

and acknowledged that the substance possessed by Henderson was

cocaine, no ground has been made to appear on this record to

cause us to disturb the judge's denial of the defendant's motion

for a new trial."    We granted the defendant's motion for further

appellate review.

     Discussion.    In Scott, 467 Mass. at 346, we adopted the

two-pronged test in Ferrara v. United States, 456 F.3d 278, 290

(1st Cir. 2006), which requires a defendant who sought to vacate

a guilty plea because of government misconduct to show "both

that 'egregiously impermissible conduct . . . by government

agents . . . antedated the entry of his plea' and that 'the


As earlier noted, on direct examination the defendant referred
to the "substance" in Henderson's mouth and did not characterize
it as cocaine or crack.
                                                                 10


misconduct influenced his decision to plead guilty or, put

another way, that it was material to that choice.'"     In

considering whether the defendant in Scott had satisfied the

first prong of this test, we summarized the findings of the

State police investigation of Dookhan's conduct at the Hinton

drug lab.   We noted that, among other misconduct:

  •   She "admitted to 'dry labbing' for two or three years prior

      to her transfer out of the lab in 2011, meaning that she

      would group multiple samples together from various cases

      that looked alike and then test only a few samples, but

      report the results as if she had tested each sample

      individually."    Scott, 467 Mass. at 339.

  •   She admitted to "contaminating samples intentionally,

      including turning negative samples into positive samples on

      at least a few occasions."    Id.

  •   She admitted that she removed samples from the evidence

      locker in breach of lab protocols, postdated entries in the

      evidence log book, and forged an evidence officer's

      initials.   Id.

  •   She falsified reports intended to verify that the gas

      chromatography-mass spectrometer machine used in

      "confirmatory" drug testing was functioning properly before

      she ran samples through the machine.    Id. at 339-340.
                                                                    11


We concluded that, because Dookhan "made a number of affirmative

misrepresentations by signing drug certificates and testifying

to the identity of substances in cases in which she had not in

fact properly tested the substances in question," Dookhan's

misconduct was "egregious."    Id. at 348.

       We also concluded that, even though there was no indication

that any prosecutor knew of her misconduct, id. at 350 n.7, her

egregious misconduct was "attributable to the government" for

purposes of a motion for new trial, id. at 350 & n.7, because as

a primary and secondary chemist she "participated in the

investigation or evaluation of the case" and "reported to the

prosecutor's office concerning the case."    Id. at 349, quoting

Commonwealth v. Martin, 427 Mass. 816, 824 (1998).

       We also noted that Dookhan acknowledged "that she may not

be able to identify those cases in which she tested the samples

properly and those in which she did not."    Scott, 467 Mass. at

339.    "Thus, 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."    Id. at 352.   Because it was

"reasonably certain . . . that her misconduct touched a great

number of cases," id., but "may be impossible" for any defendant

to prove that the drug analysis in his or her case was tainted
                                                                  12


by her misconduct, id. at 351, we recognized that her

"particularly insidious form of misconduct, which belies

reconstruction," resulted in "a lapse of systemic magnitude in

the criminal justice system," id. at 352.

     To protect "the due process rights of defendants, the

integrity of the criminal justice system, [and] the efficient

administration of justice . . . in the wake of government

misconduct that has cast a shadow over the entire criminal

justice system," we exercised our superintendence power and held

that, where Dookhan signed the drug certificate in a defendant's

case as an assistant analyst, a defendant who seeks to vacate

his or her guilty plea after learning of Dookhan's misconduct

"is entitled to a conclusive presumption that egregious

government misconduct occurred in [his or her] case."    Id.

Noting that "the full extent of Dookhan's misconduct may never

be known," id. at 341, we did not limit the conclusive

presumption to any time period; it applies in every case where

Dookhan signed the drug certificate as an assistant analyst.

See id. at 352-353.

     The consequence of the conclusive presumption of egregious

government misconduct is that a defendant could satisfy the

first prong of the Ferrara test simply by showing that Dookhan

had signed the drug certificate in his or her case as an

assistant analyst.    The defendant then would need to satisfy the
                                                                  13


second prong of that test by demonstrating "a reasonable

probability that he [or she] would not have pleaded guilty had

he [or she] known of Dookhan's misconduct."   Id. at 355.

     1.   Applicability of conclusive presumption where defendant

is found guilty at trial.   In Scott, we declared that the remedy

of a conclusive presumption of egregious government misconduct

is "sui generis," and "is intended to apply only to this narrow

class of cases in which a defendant seeks to withdraw his or her

guilty plea after having learned of Dookhan's misconduct."

Scott, 467 Mass. at 353-354.   Because the defendant in Scott

sought a new trial after pleading guilty, we did not address

whether the remedy would also apply where a defendant seeks a

new trial after having been found guilty at trial.   We address

that issue here, and conclude that the same conclusive

presumption of egregious government misconduct applies where a

defendant seeks to vacate his or her conviction at trial after

learning of Dookhan's misconduct. 4


     4
       We declared in Commonwealth v. Scott, 467 Mass. 336, 354
(2014), that this "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 a grant of a defendant's motion to withdraw
a guilty plea pursuant to our holding in this case." But this
means only that the conclusive presumption of egregious
government misconduct shall not be applied in a future trial by
a finder of fact who is evaluating the credibility of the
testimony of a laboratory chemist regarding the testing process
used to identify the substance in question as a controlled
substance.
                                                                  14


     Regardless whether a defendant pleads guilty to a drug

offense or is found guilty at trial, where Dookhan examined the

substance in question as a primary or confirmatory chemist, the

evidence is still potentially tainted by Dookhan's misconduct,

the taint is still attributable to the government, and it may

still be impossible for the defendant to prove that the drug

analysis in his or her case was actually tainted by Dookhan's

misconduct.   A trial may be tainted by egregious government

misconduct just as surely as a guilty plea.   Therefore, we

conclude that, in deciding the defendant's motion for a new

trial, the judge erred in not applying the conclusive

presumption of egregious government misconduct that we declared

in Scott.   See Commonwealth v. Gaston, 86 Mass. App. Ct. 568,

571, 573 (2014) (applying conclusive presumption of egregious

government misconduct in motion for new trial after jury trial

where Dookhan was confirmatory chemist and primary chemist

testified at trial that substance was cocaine). 5,6

     As in Scott, the consequence of the conclusive presumption

of egregious government misconduct for a defendant convicted at

     5
       The judge's denial of the motion for a new trial occurred
more than three months after our opinion issued in Scott, 467
Mass. 336.
     6
       The Commonwealth conceded at oral argument that there was
no sound reason why the conclusive presumption of egregious
government misconduct would apply to a motion for a new trial
following a guilty plea but not a comparable motion following
conviction at trial.
                                                                     15


trial is that a defendant who shows that Dookhan had signed the

drug certificate in his or her case as an assistant analyst is

entitled to a new trial if he or she can show prejudice

resulting from the admission of that evidence.   However, the

prejudice standard in Scott, i.e., that "the defendant must

demonstrate a reasonable probability that he [or she] would not

have pleaded guilty had he [or she] known of Dookhan's

misconduct," Scott, 467 Mass. at 354-355, cannot serve as a

prejudice standard where a defendant is convicted at trial.     We

consider now what showing of prejudice is required to warrant a

new trial where a defendant is convicted at trial with evidence

tainted by egregious government misconduct.

     2.   Prejudice standard.   Where a prosecutor, investigator,

or analyst whose conduct is "attributable to the government,"

see Scott, 467 Mass. at 350, deliberately fabricates evidence,

such egregious government misconduct violates a defendant's

constitutional right to due process under the Fourteenth

Amendment.   See Napue v. People, 360 U.S. 264, 269 (1959) ("it

is established that a conviction obtained through use of false

evidence, known to be such by representatives of the State, must

fall under the Fourteenth Amendment"); Halsey v. Pfeiffer, 750

F.3d 273, 292 (3d Cir. 2014) ("[t]o the best of [the court's]

knowledge, every court of appeals that has considered the

question of whether a [S]tate actor has violated the defendant's
                                                                   16


right to due process of law by fabricating evidence to charge or

convict the defendant has answered the question in the

affirmative"); Brown v. Miller, 519 F.3d 231, 237 (5th Cir.

2008) ("the deliberate or knowing creation of a misleading and

scientifically inaccurate serology report amounts to a violation

of a defendant's due process rights").   If we were to conclude

that the government had fabricated evidence against a defendant,

we would declare it constitutional error and, at a minimum,

order a new trial unless we were satisfied that the admission of

the fabricated evidence was harmless beyond a reasonable doubt.

See Chapman v. California, 386 U.S. 18, 24 (1967) (before a

"[F]ederal constitutional error can be held harmless, the court

must be able to declare a belief that it was harmless beyond a

reasonable doubt").

     In Scott, we did not conclude that Dookhan engaged in

egregious government misconduct in every case where she signed a

drug certificate as an assistant analyst.   Rather, we exercised

"our superintendence power to fashion a workable approach to

motions to withdraw a guilty plea brought by defendants affected

by this misconduct," id. at 352, and conclusively presumed that

Dookhan engaged in egregious government misconduct in all such

cases.   We fashioned this remedy out of concern for the due

process rights of defendants, the integrity of the criminal

justice system, and the efficient administration of justice,
                                                                    17


id., but we did not declare that this remedy was

constitutionally required.   The consequence of this remedy was

that the defendant was released from the obligation to prove

egregious government misconduct and needed only to prove

prejudice to obtain a new trial.

     Because the conclusive presumption was the product of our

superintendence power rather than our obligation to enforce the

constitutional rights of criminal defendants, we conclude that

the appropriate prejudice standard is the standard applied to

preserved nonconstitutional errors, which requires reversal of a

conviction unless we are "sure that the error did not influence

the jury, or had but very slight effect."    Vinnie, 428 Mass. at

163, quoting Flebotte, 417 Mass. at 353.    In essence, we apply

the conclusive presumption and deem it error to have admitted

the drug certificates or comparable evidence regarding Dookhan's

drug analysis where the defendant had no knowledge of Dookhan's

misconduct and therefore no opportunity to challenge the

admissibility or credibility of that evidence.    We apply the

standard for preserved errors because, where the defendant did

not have a genuine opportunity to raise his or her claim at the

time of trial, we review the claim as if it had been properly

preserved.   See, e.g., Commonwealth v. Vasquez, 456 Mass. 350,

355-357 (2010); Commonwealth v. Randolph, 438 Mass. 290, 293-294

(2002).   That exception to the preserved error requirement
                                                                  18


applies here, where the defendant had no knowledge of Dookhan's

egregious government misconduct at the time of trial, and

therefore no opportunity to claim that the certificates of

analysis should not be admitted in evidence.

     Applying the preserved error standard is especially

appropriate because Dookhan's egregious government misconduct is

material exculpatory evidence that the prosecution

constitutionally was obligated to disclose to the defendant,

even though the prosecutor did not know of her misconduct until

long after the conclusion of trial.   In Scott, 467 Mass. at 349,

quoting Martin, 427 Mass. at 824, we noted that "a prosecutor's

duty to disclose exculpatory evidence extends to information in

the 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.'"   We concluded that,

where Dookhan was the primary or secondary chemist who examined

a questioned substance, she falls within the rubric of an agent

of the prosecution team and, in considering a motion for a new

trial, information in her possession is deemed to be in the

possession of the prosecution.   Scott, supra at 349-350.

     Here, drug certificates signed by Dookhan as an assistant

analyst were admitted in evidence under G. L. c. 22C, § 39,

without the testimony of Dookhan or any other analyst that

declared that the substances in question were cocaine and that
                                                                    19


set forth their net weight. 7   These certificates were admissible

because the case was tried in 2006, three years before the

United States Supreme Court declared that the admission in

evidence of such certificates without the testimony of a

certifying analyst violates the defendant's right to confront

witnesses under the Sixth Amendment to the United States

Constitution and the due process clause of the Fourteenth

Amendment.    Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329

(2009). 8   Applying the conclusive presumption, we deem it error

to have admitted those certificates, and applying the

prejudicial error standard, we now examine the evidence at trial

to determine whether the error in admitting those certificates

"did not influence the jury, or had but very slight effect."



     7
       General Laws c. 22C, § 39, was amended in 2012. See St.
2012, c. 139, § 56. The current version of § 39 (b) is
substantially the same as the version of § 39 in effect at the
time of the defendant's trial and provides:

          "A certificate by a chemist or analyst . . . of the
     department . . . of the result of the chemist's or
     analyst's . . . analysis, signed and sworn to by that
     chemist or analyst . . . , shall be prima facie evidence of
     the composition, quality and, when appropriate, net weight
     of the substance or any mixture containing the substance."
     8
       Because the defendant seeks a new trial on collateral
review rather than direct appeal, the defendant is not entitled
to the benefit of that ruling. See Commonwealth v. Melendez-
Diaz, 460 Mass. 238, 239-240 (2011) (rule announced by United
States Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S.
305 [2009], does not apply retroactively to cases on collateral
review).
                                                                   20


See Vinnie, 428 Mass. at 163, quoting Flebotte, 417 Mass. at

353.

       Before we consider the evidence, we note that the

prosecutor in opening statement referred to the drug

certificates by telling the jury, "You'll hear that those bags

were submitted, pursuant to the policies, and that they were

tested and weighed, and it comes out to over twenty eight

grams."    The judge in his final instructions told the jury, in

accordance with G. L. c. 22C, § 39, that the certificates were

"'prima facie evidence' of the composition, quality, and net

weight of the substance," which the judge explained meant that,

if the jury were to "accept that evidence," they were "permitted

but not required to conclude that the substance was cocaine."

       We first consider the conviction of trafficking in cocaine,

in violation of G. L. c. 94C, § 32E (b) (2), where the

Commonwealth was required to prove beyond a reasonable doubt,

among other elements, that the substance in the can found in the

defendant's vehicle was cocaine and that the weight of the

cocaine was in excess of twenty-eight grams.    Here, the drug

certificates provided the only direct evidence of the cumulative

weight -- 38.7 grams.    Aside from the certificates, the sole

evidence concerning the weight was furnished by Boston police

Detective Robert Pieroway, who testified as an expert witness

regarding street-level drug sales.    He examined the two larger
                                                                  21


plastic bags seized from the can in the defendant's vehicle, and

stated that one of the larger plastic bags contained "four or

five" small individually knotted plastic bags "with a couple

grams of cocaine in each one."   He said that the smaller plastic

bags within the other larger plastic bag "appear to be just

about a gram," but he added, "I don't know how much they weigh,

but they could be like a couple grams apiece."   This evidence of

weight is far from overwhelming.

     Nor was the weight so much more than twenty-eight grams

that we can infer that the jury were able to discern that the

element regarding weight was satisfied from the contents of the

plastic bags alone.   Compare Commonwealth v. Connolly, 454 Mass.

808, 832 (2009).   The difference between the declared weight and

twenty-eight grams was only 10.7 grams, which is slightly more

than the weight of four pennies.   See Commonwealth v. Montoya,

464 Mass. 566, 573-574 (2013).

     It is a closer call whether the erroneous admission of the

drug certificates "did not influence the jury, or had but very

slight effect" as to the identity of the substance, but after

careful analysis we conclude that, without the drug

certificates, the evidence of identity was not overwhelming.

Numerous police officers testified that the substance in

Henderson's mouth and in the can appeared to be cocaine, and

that its packaging and storage were consistent with the way
                                                                  22


cocaine is typically handled by drug dealers.    But none

testified to any expertise in narcotics identification, and none

conducted any field testing.   See Commonwealth v. Charles, 456

Mass. 378, 382 (2010) ("arresting police officers, neither of

whom . . . had specialized training or experience in narcotics

identification, offered only conclusory, and largely equivocal,

testimony regarding the composition of the substances," and did

not articulate how their expertise permitted them to identify

substance as cocaine).   Compare Connolly, 454 Mass. at 831-832

(positive result on field test supported finding that erroneous

admission of drug certificates was harmless beyond a reasonable

doubt).

     The Commonwealth emphasizes the defendant's admission to

Officer Reid that he purchased substantial quantities of cocaine

every one and one-half weeks from a supplier, but this admission

was made in an attempt to persuade the police to elicit his

cooperation in return for leniency, and fails to shed light on

the true composition and weight of the substances in Henderson's

mouth or in the can.   The Commonwealth also points to the

defendant's affirmative answers to the two compound questions

asked of him on cross-examination, where the Commonwealth claims

that the defendant admitted that the substance in Henderson's

mouth was crack cocaine and the substance in the can found in

the vehicle was drugs.   See note 3, supra.   But no reasonable
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reading of this testimony would give much weight to these so-

called admissions, especially in light of the defendant's

testimony on direct examination that Henderson had shown him "a

substance" and asked if he would purchase it.     To be sure, the

defendant did not challenge the identity of the substances as

part of his defense, but such a defense would likely have been

futile because of the admission of the drug certificates, and in

any event, "[t]he Commonwealth's burden of proving every element

of its case cannot be transferred to the defendant because of

his counsel's choice of defense."     Vasquez, 456 Mass. at 367-

368.    See Commonwealth v. Shea, 398 Mass. 264, 269 (1986)

("defendant's theory of his case cannot relieve the Commonwealth

of its burden of proving every element of a crime beyond a

reasonable doubt").     Because the evidence independent of the

drug certificates did not overwhelmingly prove that the

substance at issue was cocaine, we cannot conclude that the

Commonwealth has met its burden of proving that the admission of

the drug certificates did not influence the jury and or had only

slight effect on their verdicts.     See, e.g., Montoya, 464 Mass.

at 572-573; Charles, 456 Mass. at 382-384.

       Conclusion.   For the reasons stated, the order denying the

motion for a new trial is reversed, the judgments of conviction

are vacated, and the case is remanded to the Superior Court for

a new trial.
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So ordered.
